LEGAL EASEMENT

Art. 634. Easements imposed by law have for their

object either public use or the interest of private
persons. (549)
Art.
635.
All
matters
concerning
easements
established for public
or communal use shall be governed by the special laws
and regulations relating thereto, and, in the absence
thereof, by the provisions of this Title. (550)
Art. 636. Easements established by law in the interest
of private
persons or for private use shall be governed by the
provisions of this
Title, without prejudice to the provisions of general or
local laws and
ordinances for the general welfare.
Pilar Devt. vs. Dumadug

A legal easement or compulsory easement, or an easement

by necessity constituted by law has for its object either
public use or the interest of private persons.18
While Article 630 of the Code provides for the general rule
that [t]he owner of the servient estate retains the ownership
of the portion on which the easement is established, and may
use the same in such a manner as not to affect the exercise of
the easement, Article 635 thereof is specific in saying that
[a]ll matters concerning easements established for
public or communal use shall be governed by the
special laws and regulations relating thereto, and, in the
absence thereof, by the provisions of this Title [Title VII on
Easements or Servitudes].
In the case at bar, the applicability of DENR A.O. No. 99 -21
prescribed the revised guidelines in the implementation of the
pertinent provisions of Republic Act (R.A.) No. 1273 and
Presidential Decree (P.D.) Nos. 705 and 1067, cannot be
doubted. Inter alia, it was issued to further the governments
program of biodiversity preservation. Aside from Section 2.1
above-quoted, Section 2.3 of which further mandates:

Facts: Petitioner filed a Complaint for accion publiciana with

damages against respondents for allegedly building their
shanties, without its knowledge and consent. It claims that
said parcel of land, which is duly registered in its name under
Transfer Certificate of Title No. 481436 of the Register of
Deeds for the Province of Rizal, was designated as an open
space of Pilar Village Subdivision intended for village
recreational facilities and amenities for subdivision residents.
Respondents denied the material allegations of the Complaint
and briefly asserted that it is the local government, not
petitioner, which has jurisdiction and authority over them.

Survey of Titled Lands:

2.3.1 Administratively Titled Lands:

RTC: Dismissed petitioners complaint, finding that the land

being occupied by respondents are situated on the sloping
area going down and leading towards the Mahabang Ilog
Creek, and within the three-meter legal easement; thus,
considered as public property and part of public
dominion under Article 502 of the New Civil Code (Code),
which could not be owned by petitioner. The court held:

xxxx

x x x The land title of [petitioner] only proves that it is the

owner in fee simple of the respective real properties described
therein, free from all liens and encumbrances, except such as
may be expressly noted thereon or otherwise reserved by law
x x x. And in the present case, what is expressly reserved
is what is written in TCT No. T-481436, to wit that the
3.00 meter strip of the lot described herein along the
Mahabang Ilog Creek is reserved for public easement
purposes. (From OCT 1873/A-50) and to the limitations
imposed by Republic Act No. 440. x x x
The trial court opined that respondents have a better
right to possess the occupied lot, since they are in an
area reserved for public easement purposes and that
only the local government of Las Pias City could
institute an action for recovery of possession or
ownership.
Anchoring its pleadings on Article 630 12 of the Code, petitioner
argues that although the portion of the subject property
occupied by respondents is within the 3-meter strip
reserved for public easement, it still retains ownership
thereof since the strip does not form part of the public
dominion. As the owner of the subject parcel of land, it
is entitled to its lawful possession, hence, the proper
party to file an action for recovery of possession against
respondents conformably with Articles 428 13 and 53914 of
Code.
Ruling: An easement or servitude is a real right on another's
property, corporeal and immovable, whereby the owner of the
latter must refrain from doing or allowing somebody else to do
or something to be done on his or her property, for the benefit
of another person or tenement;

The provisions of item 2.1.a and 2.1.b shall be observed as

the above. However, when these lands are to be subdivided,
consolidated or consolidated-subdivided, the strip of three (3)
meters which falls within urban areas shall be demarcated and
marked on the plan for easement and bank protection.
The purpose of these strips of land shall be noted in the
technical description and annotated in the title.

Complex Subdivision or Consolidation Subdivision Surveys for

Housing/Residential, Commercial or Industrial Purposes:
When titled lands are subdivided or consolidated-subdivided
into lots for residential, commercial or industrial purposes the
segregation of the three (3) meter wide strip along the
banks of rivers or streams shall be observed and be
made part of the open space requirement pursuant to
P.D. 1216.
The strip shall be preserved and shall not be subject to
subsequent subdivision.
Certainly, in the case of residential subdivisions, the
allocation of the 3-meter strip along the banks of a
stream, like the Mahabang Ilog Creek in this case, is
required and shall be considered as forming part of the
open space requirement pursuant to P.D. 1216 dated
October 14, 1977.20 Said law is explicit: open spaces are
for public use and are, therefore, beyond the
commerce of men and that [the] areas reserved for
parks, playgrounds and recreational use shall be nonalienable public lands, and non-buildable.
Running in same vein is P.D. 1067 or The Water Code of the
Philippines21 which provides:
Art. 51. The banks of rivers and streams and the shores
of the seas and lakes throughout their entire length
and within a zone of three (3) meters in urban areas,
twenty (20) meters in agricultural areas and forty (40) meters
in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation,
navigation, floatage, fishing and salvage . No person shall
be allowed to stay in this zone longer than what is necessary
for recreation, navigation, floatage, fishing or salvage or to
build structures of any kind.

Thus, the above prove that petitioners right of

ownership and possession has been limited by law with
respect to the 3-meter strip/zone along the banks of
Mahabang Ilog Creek. Despite this, the Court cannot agree
that respondents have a better right to possess the subject
portion of the land because they are occupying an area
reserved for public easement purposes. Similar to petitioner,
respondents have no right or title over it precisely because it
is public land. Likewise, we repeatedly held that squatters
have no possessory rights over the land intruded upon. The
length of time that they may have physically occupied
the land is immaterial; they are deemed to have
entered the same in bad faith, such that the nature of
their possession is presumed to have retained the same
character throughout their occupancy.23
These easements may be modified by agreement of the
interested
parties, whenever the law does not prohibit it or not
prohibit it or no injury is suffered by a
third person. (551a)
o

Legal Easements Defines: imposed by law and which

have for their object either
Public use
Or the interest of private persons

The following are classes of private legal easement:

1.
2.
3.
4.
5.
6.
7.
8.

Easement
Easement
Easement
Easement
Easement
Easement
Easement
Easement

relating to waters
of right of way
of party wall
of light and view
of drainage and buildings
of distances
of nuisance
of lateral and subjacent support

Provides for how legal easements for Private Interests are

governed:
a.
b.
c.

Agreement of interested parties

In default of a, general or local laws and
ordinances for the general welfare
In default of b, the Civil Code

EASEMENT RELATING TO WATERS

Art. 637. Lower estates are obliged to receive the
waters which naturally and without the intervention of
man descend from the higher estates, as well as the
stones or earth which they carry with them.
The owner of the lower estate cannot construct works
which will impede this easement; neither can the
owner of the higher estate make works which will
increase the burden. (552)
Art. 638. The banks of rivers and streams, even in case
they are of
private ownership, are subject throughout their entire
length and within a zone of three meters along their
margins, to the easement of public use in the general
interest of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable
rivers are, furthermore, subject to the easement of
towpath for the exclusive service of river navigation
and floatage. If it be necessary for such purpose to
occupy lands of private ownership, the proper
indemnity shall first be paid. (553a)
Art. 639. Whenever for the diversion or taking of water
from a river

or brook, or for the use of any other continuous or

discontinuous stream, it should be necessary to build a
dam, and the person who is to construct it is not the
owner of the banks, or lands which must support it, he
may establish the easement of abutment of a dam,
after payment of the proper indemnity. (554)
Art. 640. Compulsory easements for drawing water or
for watering
animals can be imposed only for reasons of public use
in favor of a town or village, after payment of the
proper indemnity. (555)
Art. 641. Easements for drawing water and for
watering animals carry
with them the obligation of the owners of the servient
estates to allow passage to persons and animals to the
place where such easements are to be used, and the
indemnity shall include this service. (556)
Art. 642. Any person who may wish to use upon his
own estate any
water of which he can dispose shall have the right to
make it flow through the intervening estates, with the
obligation to indemnify their owners, as well as the
owners of the lower estates upon which the waters
may filter or descend. (557)
Art. 643. One desiring to make use of the right granted
in the preceding article is obliged:
(1) To prove that he can dispose of the water
and that it is sufficient for the use for
which it is intended;
(2) To show that the proposed right of way is
the most convenient and the least onerous
to third persons;
(3) To indemnify the owner of the servient
estate in the manner determined by the
laws and regulations. (558)
Art. 644. The easement of aqueduct for private
interest cannot be
imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing.
(559)
Art. 645. The easement of aqueduct does not prevent
the owner of
the servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary
repairs and cleanings impossible. (560)
Art. 646. For legal purposes, the easement of aqueduct
shall be considered as continuous and apparent, even
though the flow of the water may not be continuous, or
its use depends upon the needs of the dominant
estate, or upon a schedule of alternate days or hours.
(561)
Art. 647. One who for the purpose of irrigating or
improving his estate, has to construct a stop lock or
sluice gate in the bed of the stream from which the
water is to be taken, may demand that the owners of
the banks permit its construction, after payment of
damages, including those caused by the new easement
to such owners and to the other irrigators.
(562)
Art. 648. The establishment, extent, form and
conditions of the servitudes of waters, to which this
section refers, shall be governed by the special laws
relating thereto insofar as no provision therefor is
made in this Code. (563a)
Easement relating to waters are the following:

1.
2.
3.
4.
5.

Drainage of waters
Public use
Drawing waters
Abutment of dam
Aqueduct

Easement of drainage of waters

meters in forest areas, along their margins, are subject to

the easement
of public use, for the purpose of :
1.
2.
3.
4.
5.

recreation
navigation
floatage
fishing
salvage

This easement exists when, based on the physical condition of

two
estates, waters descend naturally and without the
intervention of man
from a higher estate (the dominant estate) to a lower estate
(the servient
estate).

Subject to the prohibition that no person shall be allowed

to stay in this zone
longer than what is necessary for recreation, navigation,
floatage, fishing
or salvage or to build structures of any kind.

What Lower Estates are Obliged to Receive

Easement for Drawing Waters

1.

2.

water which naturally and without the intervention of

man descends from the higher estates

This kind of easement, upon its establishment, carries with it

the easement of right of way.

the stones and earth carried by the waters

The compulsory easement for drawing waters or for watering

animals can be imposed only for reasons of public use in
favor of a town or village, after payment of the proper
indemnity.

Duties of the Servient Estate

The owner cannot construct works that would impede

the easement nor can he enclose his land by
diteches or fences which would impede the flow. But
he may REGULATE and CONTROL the descent of the
water

Duties of the Dominant Estate

a.
b.

he cannot make works which will increase the burden

but he may construct works preventing erosion

c.

if descending waters are result of artificial

development
pr
proceed
from
industrial
establishment the owner of the lower estate shall be
entitled to compensation for his loss or damage

Note: The owner of the higher estate shall also have the right
to resort to
artifi cial means for the purpose of draining waters from
higher to lower
estates but in the exercise of such right, he is obliged:
(1) to select the routes and methods of drainage that
will cause the minimum damage to the lower lands;
and
(2) to pay just compensation to the owner of the
lower estate.
The enjoyment of this servitude does not depend upon acts
of man because the descent of water from the higher to the
lower estates
is due to the force of gravity continuous easement and
subject to extinction by non-user for a period of 10 years from
the day on which an act contrary to easement took place e.g
building of dikes.
Easement of Public Use
The banks or rivers and streams and the shores of the seas
and
lakes throughout their entire length and within a zone of three
(3) meters
in urban areas, twenty (20) meters in agricultural areas and
forty (40)

Indemnity shall be paid for this kind of easement of drawing

waters or watering the animals and it must also include
easement of right of way.
Easement of Abutment of Dam
Whenever it is necessary to build a dam for the purpose of
diverting or taking waters from a river or brook, or for the use
of any other continuous or discontinuous stream, and the
person who is to construct it is not the owner of the banks or
of the land on which must support it the owner of the
affected estates must be indemnified
Easement of Aqueduct

If a person wishes to use upon his estate any water

of which he can dispose, he shall have the right to
make it fl ow through intervening
estates.

This kind of easement shall be considered as

continuous and apparent, even though the flow of
the water may not be continuous, or its use depends
upon the needs of the dominant estate, or upon a
schedule of alternate days or hours. Hence, an
easement of aqueduct may be acquired either by
title or by prescription.

Requisites:
(1) He must be able to prove that he can dispose of the water;
(2) Prove that it is sufficient for the use for which it is
intended;
(3) It is the most convenient and the least onerous to third
persons affected; and
(4) Indemnify the owners of the servient estates (intervening
estates), as well as the owners of the lower estates upon
which the waters may filter or descend.
NOTE: This kind of easement, if established for private
interest, may not be imposed on buildings, courtyards,
annexes, or outhouse, or on orchards or gardens
already existing.
EASEMENT OF RIGHT OF WAY
Art. 649. The owner, or any person who by virtue of a
real right may
cultivate or use any immovable, which is surrounded
by other immovables pertaining to other persons and

without adequate outlet to a public highway, is

entitled to demand a right of way through the
neighboring estates, after payment of the proper
indemnity.

of the dominant estate in order that the easement may

be extinguished.
(568a)

Should this easement be established in such a manner

that its use
may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the
indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the
servient estate.

Art. 656. If it be indispensable for the construction,

repair, improvement, alteration or beautification of a
building, to carry materials through the estate of
another, or to raise therein scaffolding or other objects
necessary for the work, the owner of such estate shall
be obliged to permit the act, after receiving payment
of the proper indemnity for the damage
caused him. (569a)

In case the right of way is limited to the necessary

passage for the
cultivation of the estate surrounded by others and for
the gathering of its crops through the servient estate
without a permanent way, the indemnity shall consist
in the payment of the damage caused by such
encumbrance.

Art. 657. Easements of the right of way for the passage

of livestock
known as animal path, animal trail or any other, and
those for watering places, resting places and animal
folds, shall be governed by the ordinances and
regulations relating thereto, and, in the absence
thereof, by the usages and customs of the place.

This easement is not compulsory if the isolation of the

immovable is
due to the proprietors own acts. (564a)

Without prejudice to rights legally acquired, the animal

path shall
not exceed in any case the width of 75 meters, and the
animal trail that of 37 meters and 50 centimeters.

Art. 650. The easement of right of way shall be

established at the
point least prejudicial to the servient estate, and,
insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be
the shortest. (565)
Art. 651. The width of the easement of right of way
shall be that
which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to
time. (566a)
Art. 652. Whenever a piece of land acquired by sale,
exchange or
partition, is surrounded by other estates of the vendor,
exchanger, or coowner, he shall be obliged to grant a
right of way without indemnity. In case of a simple
donation, the donor shall be indemnifi ed by the donee
for the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article, if it is the
land of the
grantor that becomes isolated, he may demand a right
of way after paying an indemnity. However, the donor
shall not be liable for indemnity. (n)
Art. 654. If the right of way is permanent, the
necessary repairs shall
be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed
by said owner to the proprietor of the servient estate.
(n)
Art. 655. If the right of way granted to a surrounded
estate ceases
to be necessary because its owner has joined it to
another abutting on a public road, the owner of the
servient estate may demand that the easement be
extinguished, returning what he may have received by
way of indemnity.
The interest on the indemnity shall be deemed to be in
payment
of rent for the use of the easement.
The same rule shall be applied in case a new road is
opened giving
access to the isolated estate.
In both cases, the public highway must substantially
meet the needs

Whenever it is necessary to establish a compulsory

easement of
the right of way or for a watering place for animals,
the provisions of this Section and those of Articles 640
and 641 shall be observed. In this case the width shall
not exceed 10 meters. (570a)
Easement of Right of Way, Concept:
Essence: Lies in the power of the dominant owner to cross or
traverse the servient tenement without being prevented or
disturbed by its owner.
As a servitude, it is a limitation on the servient owners
rights of ownership, because it restricts his right to
exclude others from his property. However,
such
limitation exists only when the dominant owner
actually crosses, or passes over the servient estate;
because when he does not, the servient owners right of
exclusion is perfect and undisturbed.

Such easement cannot be acquired by acquisitive

prescription (adverse possession) because the latter
requires that the possession be continuous or
uninterrupted.

Requisites:
An easement of right of way may only be acquired by virtue of
a title, either voluntarily (Arts. 688-693) or compulsorily.
Voluntary easement of right of way - constituted by covenant
and does not, therefore, require that the dominant estate be
isolated and without an adequate outlet to a public highway.
However, if an estate is so isolated and without an
adequate
outlet to a public highway, the grant of easement of
right of way is
compulsory and hence, legally demandable (subject to
indemnity).
Villanueva vs. Velasco
Facts: Petitioner Bryan Villanueva is the registered owner of
the parcel of land covered by Transfer Certificate of Tite. He
bought it from Pacific Banking Corporation, the mortgagee of
said property. The bank had acquired it from the spouses
Maximo and Justina Gabriel at a public auction on March 19,
1983. When petitioner bought the parcel of land there

was a small house on its southeastern portion. It

occupied one meter of the two-meter wide easement of
right of way the Gabriel spouses granted to the
Espinolas, predecessors-in-interest of private respondents, in
a Contract of Easement of Right of Way. The pertinent portion
of the contract dated November 28, 1979, states:
. . . in order to have an access to and from their
aforementioned land where their houses are constructed
and to have an outlet to Tandang Sora Ave. which is
the nearest public road and the least burdensome to
the servient estate and to third persons, it would be
necessary for them to pass through spouses MAXIMO
GABRIEL and JUSTINA CAPUNOs land and for this
purpose, a path or passageway of not less than two (2)
meters wide of said spouses property is necessary for
the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA
and for all their needs in entering their property.
WHEREFORE, in view of the fact that the property of the
ESPINOLA had been bought by them from MAXIMO CAPUNO,
father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and
JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO,
NENITA and AURORA ESPINOLA and their families to have a
permanent
easement of
right
of
way
over
the
aforementioned property of said spouses limited to not more
than two meters wide, throughout the whole length of the
southeast side of said property and as specifically indicated in
the attached plan which is made an integral part of this
Contract as Annex A;
Unknown to petitioner, even before he bought the land,
the Gabriels had constructed the aforementioned small
house that encroached upon the two-meter easement.
Petitioner was also unaware that private respondents, Julio
Sebastian and Shirley Lorilla, had filed a civil case for
easement, damages and with prayer for a writ of preliminary
injunction and/or restraining order against the spouses
Gabriel.[4] As successors-in-interest, Sebastian and Lorilla
wanted to enforce the contract of easement.
Issue: whether
petitioner.

the

easement

on

the

property

binds

Ruling: At the outset, the subject easement (right of way)

originally was voluntarily constituted by agreement
between the Gabriels and the Espinolas. But as correctly
observed by the Court of Appeals, the easement in the
instant petition is both (1) an easement by grant or a
voluntary easement, and (2) an easement by necessity
or a legal easement.
A legal easement is one mandated by law, constituted
for public use or for private interest, and becomes a
continuing property right.[] As a compulsory easement, it is
inseparable from the estate to which it belongs, as provided
for in said Article 617 of the Civil Code.
The essential requisites for an easement to be compulsory
are:
(1) the dominant estate is surrounded by other immovables
and has no adequate outlet to a public highway;

(2) proper indemnity has been paid;

(3) the isolation was not due to acts of the proprietor of the
dominant estate;
(4) the right of way claimed is at a point least prejudicial to
the servient estate; and
(5) to the extent consistent with the foregoing rule, where the
distance from the dominant estate to a public highway may
be the shortest.]
The small house occupying one meter of the two-meter
wide easement obstructs the entry of private
respondents cement mixer and motor vehicle. One
meter is insufficient for the needs of private respondents. It is
well-settled that the needs of the dominant estate determine
the width of the easement.[17] Conformably then, petitioner
ought to demolish whatever edifice obstructs the
easement in view of the needs of private respondents
estate.
As already explained, it is in the nature of legal easement
that the servient estate (of petitioner) is legally bound
to provide the dominant estate (of private respondents
in this case) ingress from and egress to the public
highway even if the servitude is not annotated in the
title.

As Manresa had pointed out, if the passageway

consists of aninaccessible slope or precipice, it is
as if there is no passageway, that is, one that can
suffi ciently fulfi ll the dominant owners necessities,
although by the existence of that passageway the
property can not be truly said that the property is
isolated.

But the law makes it amply clear that an owner

cannot, by his own act, isolate his property from a
public highway and then claim an easement of way
through an adjacent estate.

According to the last paragraph of Article 649, the

easement is not compulsory if the isolation of the
immovable is due to the proprietors own acts. Thus,
when the claimant of a right of way had already been
granted an adequate access to the public highway
through another estate but the same was no longer
in use because he himself had closed it off by
erecting a stonewall on his lot at the point where
such passageway began, he cannot demand for a
compulsory right of way in an alternative location.

Costabella vs. CA
Facts: Petitioner owns the real estate properties designated as
Lots Nos. 5122 and 5124 of the Opon Cadastre, situated at
Sitio Buyong, Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private respondents, on
the other hand, are the owners of adjoining properties more
particularly known as Lots Nos. 5123-A and 5123-C of the
Opon Cadastre.
Before the petitioner began the construction of its
beach hotel, the private respondents, in going to and
from their respective properties and the provincial
road, passed through a passageway which traversed
the petitioner's property. In 1981, the petitioner closed

the aforementioned passageway when it began the

construction of its hotel, but nonetheless opened
another route across its property through which the
private respondents, as in the past, were allowed to
pass. (Later, or sometime in August, 1982, when it undertook
the construction of the second phase of its beach hotel, the
petitioner fenced its property thus closing even the
alternative passageway and preventing the private
respondents from traversing any part of it.)
In their complaint, the private respondents assailed the
petitioner's closure of the original passageway which they
(private respondents) claimed to be an "ancient road right of
way" that had been existing before World War II and since
then had been used by them, the community, and the general
public, either as pedestrians or by means of vehicles, in going
to and coming from Lapu-Lapu City and other parts of the
country. The private respondents averred that by
closing the alleged road right of way in question, the
petitioner had deprived them access to their properties
and caused them damages.
In the same complainant, the private respondents likewise
alleged that the petitioner had constructed a dike on the
beach fronting the latter's property without the necessary
permit, obstructing the passage of the residents and local
fishermen, and trapping debris and flotsam on the beach.
They also claimed that the debris and flotsam that had
accumulated prevented them from using their properties for
the purpose for which they had acquired them. The complaint
this prayed for the trial court to order the re-opening of the
original passageway across the petitioner's property as well as
the destruction of the dike. 5
In its answer, 6 the petitioner denied the existence of an
ancient road through its property and counter-averred, among
others, that it and its predecessors-in-interest had permitted
the temporary, intermittent, and gratuitous use of, or passage
through, its property by the private respondents and others by
mere tolerance and purely as an act of neighborliness. It
justified the walling in of its property in view of the
need to insure the safety and security of its hotel and
beach resort, and for the protection of the privacy and
convenience of its hotel patrons and guests. At any rate,
the petitioner alleged, the private respondents were not
entirely dependent on the subject passageway as they
(private respondents) had another existing and
adequate access to the public road through other
properties.
Ruling: It is already well-established that an easement of
right of way, as is involved here, is discontinuous 15 and
as such can not be acquired by prescription. 16 Insofar
therefore as the appellate court adhered to the foregoing
precepts, it stood correct. Unfortunately, after making the
correct pronouncement, the respondent Appellate Court did
not order the reversal of the trial court's decision and the
dismissal of the complaint after holding that no easement had
been validly constituted over the petitioner's property.
Instead, the Appellate Court went on to commit a reversible
error by considering the passageway in issue as a compulsory
easement which the private respondents, as owners of the
"dominant" estate, may demand from the petitioner the latter
being the owner of the "servient" estate.

It is provided under Articles 649 and 650 of the New Civil Code
that:
Art. 649. The owner, or any person who by virtue of a
real right may cultivate or use any immovable, which
is surrounded by other immovables pertaining to
other persons and without adequate outlet to a
public highway, is entitled to demand a right of way
through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of
the value of the land occupied and the amount of the
damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded
by others and for the gathering of its crops through
the servient estate without a permanent way, the
indemnity shall consist in the payment of the
damage caused by such encumbrance.
This easement is not compulsory if the isolation of
the immovable is due to the proprietor's own acts.
Art. 650. The easement of right of way shall be
established at the point least prejudicial to the
servient estate, and, insofar as consistent with this
rule, where the distance from the dominant estate to
a public highway may be the shortest.
Based on the foregoing, the owner of the dominant
estate may validly claim a compulsory right of way only
after he has established the existence of four
requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without
adequate outlet to a public highway; (2) after payment
of the proper indemnity; (3) the isolation was not due
to the proprietor's own acts; and (4) the right of way
claimed is at a point least prejudicial to the servient
estate. Additionally, the burden of proving the
existence of the foregoing pre-requisites lies on the
owner of the dominant estate. 17
Here, there is absent any showing that the private
respondents had established the existence of the four
requisites mandated by law. They failed to prove that
there is no adequate outlet from their respective
properties to a public highway. On the contrary, as alleged
by the petitioner in its answer to the complaint, and confirmed
by the appellate court, "there is another outlet for the
plaintiffs (private respondents) to the main road." 18 Thus,
the respondent Court of Appeals likewise admitted
that "legally the old road could be closed." 19 Yet, it
ordered the re- opening of the old passageway on the
ground that "the existing outlet (the other outlet) is
inconvenient to the plaintiff." 20 On this score, it is
apparent that the Court of Appeals lost sight of the
fact that the convenience of the dominant estate has
never been the gauge for the grant of compulsory right
of way. 21 To be sure, the true standard for the grant of

the legal right is "adequacy." Hence, when there is

already an existing adequate outlet from the dominant
estate to a public highway, even if the said outlet, for
one reason or another, be inconvenient, the need to
open up another servitude is entirely unjustified. For to
justify the imposition of an easement or right of way, "there
must be a real, not a fictitious or artificial necessity for it." 22
Further, the private respondents failed to indicate in their
complaint or even to manifest during the trial of the
case that they were willing to indemnify fully the
petitioner for the right of way to be established over
its property. Neither have the private respondents
been able to show that the isolation of their property
was not due to their personal or their predecessors-ininterest's own acts. Finally, the private respondents failed
to allege, much more introduce any evidence, that the
passageway they seek to be re-opened is at a point
least prejudicial to the petitioner.
As also earlier indicated, there must be a real necessity
therefor, and not mere convenience for the dominant
estate. Hence, if there is an existing outlet, otherwise
adequate, to the highway, the "dominant" estate can
not demand a right of way, although the same may not
be convenient.
The question of when a particular passage may be said
to be "adequate" depends on the circumstances of
each case. Manresa, however, says: "In truth, not only the
estate which absolutely does not possess it should be
considered in this condition, but also that which does not have
one sufficiently safe or serviceable; an estate bordering a
public road through an inaccessible slope or precipice,
is in fact isolated for all the effects of the easement
requested by its owner. On the other hand, an estate
which for any reason has necessarily lost its access to
a public road during certain periods of the year is in
the same condition. . . . There are some who propound
the query as to whether the fact that a river flows
between the estate and the public road should be
considered as having the effect of isolating the
estate. . . . If the river may be crossed conveniently at
all times without the least danger, it cannot be said
that the estate is isolated; in any other case, the
answer is in the affirmative." 25
But while a right of way is legally demandable, the owner of
the dominant estate is not at liberty to impose one based on
arbitrary choice. Under Article 650 of the Code, it shall be
established upon two criteria: (1) at the point least
prejudicial to the servient state; and (2) where the
distance to a public highway may be the shortest.
According, however, to one commentator, "least prejudice"
prevails over "shortest distance." 29 Yet, each case must
be weighed according to its individual merits, and judged
according to the sound discretion of the court. "The court,"
says Tolentino, "is not bound to establish what is the
shortest; a longer way may be established to avoid
injury to the servient tenement, such as when there
are constuctions or walls which can be avoided by a
roundabout way, or to secure the interest of the
dominant owner, such as when the shortest distance
would place the way on a dangerous decline." 30

Ramos vs. Gatchalian Realty

Mere convenience for the dominant estate is not
enough to justify a grant of right of way. Real necessity
must be shown.
Facts: Ramos is the owner of a house and lot in Paraaque.
Respondents Asprec own Lot 4135. Gatchalian Avenue is
alongside Lot 4135. Respondent Gatchalian Realty was
granted the road right of way and drainage along Lot 4135 to
service the Gatchalian and Asprec subdivision, by the
respondent Asprecs.
Ramos alleged that, Gatchalian Realty, Inc. built a 7-8, feet
high concrete wall right infront of his premises, blocking his
entrance/exit to Gatchalian Road, the nearest, most
convenient and adequate entrance/exit to the public road. or
highway, Sucat Road but now known as Dr. A. Santos Avenue,
Paraaque; that this house and lot is only about 100 meters
from Sucat, Road passing thru Gatchalian Avenue. Ramos also
alleged that due to Gatchalian's construction,he was
constrained to use as his "temporary" way the adjoining lots
belonging to different persons. Said way is allegedly "bumpy
and impassable especially during rainy seasons because of
flood waters, mud and tall 'talahib' grasses thereon."
Moreover, according to Ramos, the road right of way which
the private respondents referred to as the petitioner's
alternative way to Sucat Road is not an existing road but has
remained a proposed road as indicated in the subdivision plan
of the Sobrina Rodriguez Lombos Subdivision.
RTC and CA both denied Ramos' complaint.

Issue: Whether or not a right of way must be granted based

on allegation of inconvenience?
Held: No. The petitioner's position is not impressed with
merit. We find no reason to disturb the appellate court's
finding of fact that the petitioner failed to prove the nonexistence of an adequate outlet to the Sucat Road except
through the Gatchalian Avenue. As borne out by the records of
the case, there is a road right of way provided by the Sabrina
Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in
its subdivision plan for the buyers of its lots. The fact that said
lot is still undeveloped and causes inconvenience to the
petitioner when he uses it to reach the public highway does
not bring him within the ambit of the legal requisite. We agree
with the appellate court's observation that the petitioner
should have, first and foremost, demanded from the Sabrina
Rodriguez Lombos Subdivision the improvement and
maintenance of Lot 4133-G-12 as his road right of way
because it was from said subdivision that he acquired his lot
and not either from the Gatchalian Realty or the respondents
Asprec. To allow the petitioner access to Sucat Road through
Gatchalian Avenue inspite of a road right of way provided by
the petitioner's subdivision for its buyers simply because
Gatchalian Avenue allows petitioner a much greater ease in
going to and coming from the main thoroughfare is to
completely ignore what jurisprudence has consistently
maintained through the years regarding an easement of a
right of way, that "mere convenience for the dominant estate
is not enough to serve as its basis. To justify the imposition of
this servitude, there must be a real, not a fictitious or artificial,
necessity for it."
Quimen vs CA
Facts: Petitioner Anastacia Quimen together with her brothers
Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of
property situated in Pandi, Bulacan. They agreed to subdivide
the property equally among themselves, as they did, with the
shares of Anastacia, Sotero, Sulpicio and Rufina abutting the
municipal road. The share of Anastacia, located at the

extreme left, was designated as Lot No. 1448-B- 1. It is

bounded on the right by the property of Sotero designated as
Lot. No. 1448-B-2. Adjoining Soteros property on the right are
Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina
and Sulpicio, respectively, but which were later acquired by a
certain Catalina Santos. Located directly behind the lots of
Anastacia and Sotero is the share of their brother Antonio
designated as Lot No. 1448-B-C which the latter divided into
two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B,
each with an area of 92 square meters. Lot No. 1448-B-6-A is
located behind Anastacias Lot No. 1448-B-1, while Lot No.
1448-B-6-B is behind the property of Sotero, father of
respondent Yolanda.

In fact, as between petitioner Anastacia and

respondent Yolanda their agreement has already been
rendered moot insofar as it concerns the determination
of the principal issue herein presented.The voluntary
easement in favor of private respondent, which
petitioner now denies but which the court is inclined to
believe, has in fact become a legal easement or an
easement by necessity constituted by law.[8]

In February 1982 Yolanda purchased Lot No. 1448-B-6-A

from her uncle Antonio through her aunt Anastacia who was
then acting as his administratrix. According to Yolanda,
when petitioner offered her the property for sale she
was hesitant to buy as it had no access to a public
road. But Anastacia prevailed upon her to buy the lot
with the assurance that she would give her a right of
way on her adjoining property for P200.00 per square
meter.

Ruling: [E]ven before the purchase of the said parcels of land

the plaintiff was reluctant to purchase the same for they are
enclosed with permanent improvements like a concrete fence
and store and have (sic) no egress leading to the road but
because of the assurance of the defendant that plaintiff will be
provided one (1) meter wide and five (5) meters long right of
way in the sum of P200.00 per square meter to be taken from
Anastacias lot at the side of a concrete store until plaintiff
reach(es) her fathers land, plaintiff was induced to buy
the aforesaid parcels of land x x x. That the aforesaid
right of way is the shortest, most convenient and the
least onerous leading to the road and being used by
the plaintiffs predecessors-in-interest from the very
inception x x x.

Thereafter, Yolanda constructed a house on the lot

she bought using as her passageway to the public
highway a portion of Anastacia s property. But when
Yolanda finally offered to pay for the use of the
pathway Anastacia refused to accept the payment. In
fact she was thereafter barred by Anastacia from
passing through her property.[2]

Do the requirements for compulsory right of way exist?

Yes. The property of private respondent is hemmed in by the
estates of other persons including that of petitioner; that she
offered to pay P200.00 per square meter for her right of way
as agreed between her and petitioner; that she did not cause
the isolation of her property; that the right of way is the least
prejudicial to the servient estate.

In February 1986 Yolanda purchased the other lot of

Antonio Quimen located directly behind the property of her
parents who provided her a pathway gratis et amore between
their house, extending about nineteen (19) meters from the
lot of Yolanda behind the sari-sari store of Sotero, and
Anastacias perimeter fence. The store is made of strong
materials and occupies the entire frontage of the lot
measuring four (4) meters wide and nine meters (9)
long. Although the pathway leads to the municipal road
it is not adequate for ingress and egress. The
municipal road cannot be reached with facility because
the store itself obstructs the path so that one has to
pass through the back entrance and the facade of the
store to reach the road.

Petitioner
finally
insists
that
respondent
court
erroneously concluded that the right of way proposed by
private respondent is the least onerous to the parties. We
cannot agree. Article 650 of the New Civil Code explicitly
states that the easement of right of way shall be established
at the point least prejudicial to the servient estate and, insofar
as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest. The
criterion of least prejudice to the servient estate must
prevail over the criterion of shortest distance although
this is a matter of judicial appreciation. While shortest
distance may ordinarily imply least prejudice, it is not
always so as when there are permanent structures
obstructing the shortest distance; while on the other
hand, the longest distance may be free of obstructions
and the easiest or most convenient to pass through. In
other words, where the easement may be established on
any of several tenements surrounding the dominant
estate, the one where the way is shortest and will
cause the least damage should be chosen. However, as
elsewhere stated, if these two (2) circumstances do not
concur in a single tenement, the way which will cause
the least damage should be used.

Yolanda filed an action with the proper court

praying for a right of way through Anastacia s
property.
RTC: Dismissed the petition for lack of cause of action. It
further held that it was more practical to extend the existing
pathway to the public road by removing that portion of the
store blocking the path as that was the shortest route to
the public road and the least prejudicial to the parties
concerned than passing through Anastacias property.[5]
CA: reversed the lower court and held that she was
entitled to a right of way on petitioners property and that the
way proposed by Yolanda would cause the least
damage and detriment to the servient estate.

In applying Art. 650 of the New Civil Code,

respondent Court of Appeals declared that the
proposed right of way of Yolanda, which is one (1)
meter wide and five (5) meters long at the extreme
right of petitioners property, will cause the least
prejudice and/or damage as compared to the
suggested passage through the property of Yolanda s
father which would mean destroying the sari-sari
store made of strong materials.

Floro vs Llenado

A legal easement cannot arise merely for the convenience of

the dominant estate. The owner must prove that the
easement is absolutely necessary and least restrictive on the
servient estate.

Facts: Mr Floro owned the Floro Park Subdivision situated in

Bulacan. The subdivision has its own access roads from the
MacArthur Highway through road lot 4. Another fellow,
Llenado, owned the Llenado Homes Subdivision. He obtained
the same from Mr. de Castro, when it was known as the
Emmanuel Homes Subdivision, Llenado Homes was bounded
on the south by the Palanas Creek, 5 which separates it from
the Floro Park Subdivision. To the west sat the ricelands
belonging to Marcial Ipapo. The controversy brewed since
Llenado Homes did not have any passage to the MacArthur
Highway. However, a proposed access road passing the
abandoned riceland of Marcial Ipapo has been specifically
provided in the subdivision plan of the former Emmanuel
Homes Subdivision. This plan was approved by the HLURB.
Because the access road through the Ipapo Riceland did not
exist yet, the Llenados sought, and were granted, oral
permission by the Floros to use Road Lots 4 and 5 of the Floro
Park . At this point, remember that the agreement was merely
provisional as the parties were still drafting a contract.
Later, Floro discovered grave damage to the lots in question
from the passage of heavy machinery. He then barricaded
Road Lot 5 with a pile of rocks, wooden posts and adobe
stones. He essentially implied Llenados to keep out off
property.

Llenado pursued an easement claim with the RTC. The RTC

denied the request. On appeal by LLenado, and ordered that
Mr. Floro remove the barricades. Mr. Floro went to the SC

Issue: Whether or not the requirements for legal easement

existed to allow Llenado to claim the same against Mr. Floro.

Held: NO. As in the earlier case, the court held that to be

entitled to a compulsory easement of right of way, the
preconditions provided under Arts. 649 and 650 of the Civil
Code
must
be
established.
These
include:
that the dominant estate is surrounded by other immovables
and has no adequate outlet to a public highway; (2) that
proper indemnity has been paid; (3) that the isolation was not
due to acts of the proprietor of the dominant estate; (4) that
the right of way claimed is at a point least prejudicial to the
servient estate and, in so far as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest.

For this case, it is apparent that the elements have not been
met. The original subdivision development plan presented by
Llenado indicates an existing and prior agreement with Ms.
Ipapo to create a right of way through the abandoned Ipapo
ricefield. Ipapo had long agreed to these terms but Llenado
apparently thought it too much work and cost to develop such

road. It was easier for him to create an easement via the Floro
property.
The court ruled time and again that one may not claim a legal
easement merely out of convenience. Convenience motivated
Llenando to abandon the Ipapo access road development and
pursue an access road through the Floro estate. He was
stacking the cards in his favor to the unnecessary detriment
of his neighbor. The court refused to countenance his
behavior.

Valdez vs. Tabisula

Facts: Petitioner-spouses Victor and Jocelyn Valdez purchased
via Deed of Absolute Sale from respondent-spouses Francisco
Tabisula and Caridad Tabisula a 200 square meter (sq.m.)
portion (the subject property) of a 380 sq. m. parcel of land
located in San Fernando, La Union
That now and hereinafter, said
VENDEE-SPOUSES VICTOR and JOECELYN
[sic] VALDEZ shall be the absolute owners of
the said 200 sq. meters, eastern portion and
that we shall warrant and forever defend
their ownership of the same against the
claims of all persons whomsoever; they
shall be provided a 2 1/2 meters [sic]
wide road right-of-way on the western
side of their lot but which is not included in
this sale.
Respondents subsequently built a concrete
wall on the western side of the subject property.
[2]
Believing that that side is the intended road right of
way mentioned in the deed, petitioners, through their
representative,
reported
the
matter
to
the barangay for mediation and conciliation.
In their complaint, petitioners alleged that they
purchased the subject property on the strength of
respondents assurance of providing them a road right
of way. They thus prayed that respondents be ordered
to provide the subject property with a 2-meter wide
easement and to remove the concrete wall blocking the
same.[4]
Respondents averred that the 2 -meter easement
should be taken from the western portion of the
subject property and not from theirs; respondents further
averred that they could not have agreed to providing
petitioners an easement on the western side of their lot as
there exists a two-storey concrete house on their lot where
the supposed easement is to be located, which was erected
long before the subject property was sold to petitioners. [8] In
support of this claim, respondents submitted a February 20,
2003 letter from the City Engineers Office.[9]
RTC and CA: The deed only conveyed ownership of the subject
property to petitioners, and that the reference therein to
an easement in favor of petitioners is not a definite
grant-basis of a voluntary easement of right of way.
Furthermore, petitioners are neither entitled to a legal
or compulsory easement of right of way as they failed
to present circumstances justifying their entitlement to
it under Article 649 of the Civil Code.[14]
Issue: WON THAT THE RIGHT OF WAY IS NOT PART
OF THE ABSOLUTE DEED OF SALE DATED JANUARY
11, 1993;
Ruling: An easement or servitude is a real right constituted
on anothers property, corporeal and immovable, by virtue of
which the owner of the same has to abstain from doing or to

allow somebody else to do something on his property for the

benefit of another thing or person.[17] The statutory basis of
this right is Article 613 of the Civil Code which reads:
Art.
619. Easements
are
established either by law or by the will of
the owners. The former are called legal and
the latter voluntary easements.
From the allegations in petitioners complaint, it is clear that
what they seek to enforce is an alleged grant in the
deed by respondents of an easement reading: they
shall be provided a 2 meters wide road right-of-way on
the western side of their lot but which is not included
in this sale.
Article 1358 of the Civil Code provides that any transaction
involving the sale or disposition of real property must be in
writing.[18] The stipulation harped upon by petitioners that
they shall be provided a 2 meters wide road right-of-way on
the western side of their lot but which is not included in this
sale is not a disposition of real property. The proviso that
the intended grant of right of way is not included in
this sale could only mean that the parties would have
to enter into a separate and distinct agreement for the
purpose.
Besides, a document stipulating a voluntary easement
must be recorded in the Registry of Property in order
not to prejudice third parties. So Articles 708 and 709 of
the Civil Code call for, viz:
Petitioners are neither entitled to a legal or
compulsory easement of right of way. For to be entitled
to such kind of easement, the preconditions under Articles
649 and 650 of the Civil Code must be established, viz:
Art. 649. The owner, or any person
who by virtue of a real right may cultivate or
use any immovable, which is surrounded by
other immovables pertaining
to
other
persons, and without adequate outlet to
a public highway, is entitled to demand a
right of way through the neighboring
estates, after payment of the proper
indemnity.
Art. 650. The easement of right of
way shall be established at the point least
prejudicial to the servient estate, and,
insofar as consistent with this rule, where
the distance from the dominant estate to a
public
highway
may
be
the
shortest. (Underscoring supplied)
Thus, to be conferred a legal easement of right of
way under Article 649, the following requisites must
be complied with: (1) the property is surrounded by
other immovables and has no adequate outlet to a
public highway; (2) proper indemnity must be
paid; (3) the isolation is not the result of the owner of
the dominant estates own acts; (4) the right of way
claimed is at the point least prejudicial to
the servient estate; and (5) to the extent consistent
with the foregoing rule, the distance from the
dominant estate to a public highway may be the
shortest.[21] The onus of proving the existence of
these prerequisites lies on the owner of the dominant
estate,[22]herein petitioners.
As found, petitioners and their family are also the owners
of two properties adjoining the subject property which
have access to two public roads or highways.[24]

Since petitioners then have more than adequate

passage to two public roads, they have no right to
demand the grant by respondents of an easement on
the western side of [respondents] lot.
It may not be amiss to note at this juncture that at the time
the deed was executed in 1993, the barangay road-Exhibit 1G, by which petitioners could access Burgos Street-Exhibit 1-F,
was not yet in existence; and that the Interior Street-Exhibit 1H, which petitioners via this case seek access to with a right of
way, was still acreek,[25] as reflected in the earlier-quoted
particular description of respondents parcel of land from which
the subject property originally formed part.
Right to Just Compensation
NPC vs Suarez
Facts: In order to implement its 350 KV Leyte Luzon HDVC
Power Transmission Project which aims to transmit the
excess electrical generating capacity from the Leyte
Geothermal Plant to Luzon and various load centers,
petitioner filed a complaint for expropriation of a parcel of
land (the property) in Brgy. Bibincahan, Sorsogon, Sorsogon
registered in the names of Angel Suarez, Carlos Suarez,
Ma. Teresa Suarez and Rosario Suarez (respondents).
In accordance with Section 2 of Presidential Decree No. 42,
[2]
petitioner deposited with the Philippine National
Bank,
Legazpi
City
Branch
the
amount
of P7,465.71 representing the provisional value of the
property,[3] alleged to cover an area of 24,350 square
meters. On September 23, 1996, it served a Notice to Take
Possession of the property to respondents.
Respondents filed an Answer with Counterclaim, alleging that
the property covers an area of 34,950, not 24,350
square meters, and that petitioner had already
constructed two transmission towers in the middle of
the property, cut down more or less 737 trees of
different varieties. They thus moved for the determination
of just compensation which was granted by the court
which appointed commissioners for the purpose.
The commissioners determined the just compensation by
using Market Data Analysis, Income Productivity and Zonal
Valuation of the property and arrived at the following:
FINAL VALUE:
Since the subject land is surrounded by residential
subdivisions, and the development thereof
to a residential subdivision is what the
owners
The
land
in
question
is
in
the
amount
of P783,860.46.
Petitioner assailed the report as bereft of legal basis,
the Market Data Analysis and Income Productivity
approaches being mere assumptions, whereas the
Zonal Valuation approach is being used only for real
estate tax purposes.
RTC and CA: The court adopted as basis for determining
just compensation the recommendation of the
Commissioners.
Petitioner
contends
that
since
it
merely
seeks
an aerial easement over the property, the decision of the
appellate court affirming the trial courts order for the
payment of just compensation in the amount of P783,
860.46 is erroneous.
Issue: whether NPC, in its acquisition of an easement of right
of way (aerial) over a parcel of land, only a fee, not the full
value of the land, must be paid.

Ruling: Petitioners plea for the application of Section 3A(b) of

RA 6395 which directs the payment of an amount equivalent
to only 10% of the market value of the property as just
compensation for an easement of right of way does not lie.
Granting arguendo that
what
petitioner
acquired over respondents property was
purely an easement of a right of way, still,
we cannot sustain its view that it should pay
only an easement fee and not the full value
of the property. The acquisition of such an
easement falls within the purview of the
power of eminent domain. This conclusion
finds support in similar cases in which the
Supreme Court sustained the award of just
compensation
for
private
property
condemned for public use. x x x
True, an easement of right of way transmits
no rights except the easement itself, and
respondent retains full ownership of the
property. The acquisition of such easement
is, nevertheless, not gratis. As correctly
observed by the CA, considering the nature
and the effect of the installation of
power lines, the limitations on the use
of the land for an indefinite period
would deprive respondent of normal
use of the property. For this reason, the
latter is entitled to payment of a just
compensation, which must be neither more
nor less than the monetary equivalent of the
land.[10] (Emphasis
and
underscoring
supplied).
Petitioners assertion that respondents can still make use of
the property by planting corn, rice, root crops and similar
plants fails to consider that the property was originally tilled
and suited for fruit bearing coconut trees, 617 abaca plants,
50 madre de cacao and 23 jackfruit trees. That petitioner
prohibited respondents from planting trees higher than
three meters clearly shows that the easement had
impaired respondents beneficial enjoyment of their
property to warrant the imposition of payment of its
full value.
The measure is thus not the takers gain but the owners
loss. The word just is used to intensify the meaning of
the word compensation and to thereby convey the idea
that the equivalent to be rendered for the property to
be taken shall be real, substantial, full and ample. [13]
The nature, as well as the character of the land at the
time of taking is thus the principal criterion in
determining just compensation.

Width of the Easement shall be that which is sufficient

for the needs of the dominant estate, and may
accordingly be changed from time to time. This is taken
to mean that under the law, it is the needs of the dominant
property which ultimately determine the width of the passage.
Who may demand for compulsory right of way?
It should be the owner or any person who by virtue of a real
right may cultivate or use any immovable surrounded by other
immovable pertaining to other persons, who is entitled to
demand a right of way through the neighboring estates.
SC: While a usufructuary is entitled to demand a right of way
pursuant to Article 649, a mere lessee does not enjoy the
same right. With respect to the latter, his action is against the
lessor who is bound to maintain him in the enjoyment of the
property.

Tomas Encarnacion vs CA
Facts: Petitioner Tomas Encarnacion and private respondent
Heirs of the late Aniceta Magsino Viuda de Sagun are the
owners of two adjacent estates situated in Buco, Talisay,
Batangas.
Petitioner owns the dominant estate. Private respondents coown the 405-square-meter servient estate.. In other words,
the servient estate stands between the dominant
estate and the national road.
Prior to 1960, when the servient estate was not yet
enclosed with a concrete fence, persons going to the
national highway just crossed the servient estate at no
particular point. However, when private respondents
constructed a fence around the servient estate, a
roadpath measuring 25 meters long and about a meter
widewas constituted to provide access to the highway.
One-half meter width of the path was taken from the
servient estate and the other one-half meter portion
was taken from another lot owned by Mamerto
Magsino. No compensation was asked and none was
given for the portions constituting the pathway. 1
It was also about that time that petitioner started his
plant nursery business on his land where he also had
his abode. He would use said pathway as passage to
the highway for his family and for his customers.
Petitioner's plant nursery business flourished and with
that, it became more and more difficult for petitioner
to haul the plants and garden soil to and from the
nursery and the highway with the use of pushcarts.
In January, 1984, petitioner was able to buy an ownertype jeep which he could use for transporting his
plants. However, that jeep could not pass through the
roadpath and so he approached the servient estate
owners requested that they sell to him one and onehalf (1 1/2) meters of their property to be added to the
existing pathway so as to allow passage for his jeepney
but it was turned down.
Petitioner then instituted an action to seek the issuance of a
writ of easement of a right of way over an additional width of
at least two (2) meters over the De Saguns' 405-square-meter
parcel of land.
RTC and CA: Plaintiff at present has two outlets to the
highway. The plaintiff has an adequate outlet to the highway
through the dried river bed where his jeep could pass.
Convenience is not one of the conditions included in the
requirement on compulsory easement.
Issue: Whether or not the petitioner is entitled to an
additional easement of right of way
Ruling: Yes. While there is a dried river bed less than
100 meters from the dominant tenement, that access
is grossly inadequate.1wphi1

Where a private property has no access to a public

road, it has the right of easement over adjacent
servient estates as a matter of law. 4
Article 651 of the Civil Code provides that "(t)he width of
the easement of right of way shall be that which is
sufficient for the needs of the dominant estate, and
may accordingly be changed from time to time." This is
taken to mean that under the law, it is the needs of the
dominant property which ultimately determine the
width of the passage. And these needs may vary from time
to time.
When petitioner started out as a plant nursery operator, he
and his family could easily make do with a few pushcarts to
tow the plants to the national highway. But the business grew
and with it the need for the use of modern means of
conveyance or transport. Manual hauling of plants and garden
soil and use of pushcarts have become extremely
cumbersome and physically taxing. To force petitioner to leave
his jeepney in the highway, exposed to the elements and to
the risk of theft simply because it could not pass through the
improvised pathway, is sheer pigheadedness on the part of
the servient estate and can only be counter-productive for all
the people concerned. Petitioner should not be denied a
passageway wide enough to accomodate his jeepney
since that is a reasonable and necessary aspect of the
plant nursery business.
We are well aware that an additional one and one-half
(1 1/2) meters in the width of the pathway will reduce
the servient estate to only about 342.5 square meters.
But petitioner has expressed willingness to exchange
an equivalent portion of his land to compensate
private respondents for their loss.
Since the easement to be established in favor of
petitioner is of a continuous and permanent nature,
the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the
servient estate pursuant to Article 649 of the Civil
Code which states in part:
Art. 649. The owner, or any person who by virtue of a
real right may cultivate or use any immovable, which
is surrounded by other immovables pertaining to
other persons and without adequate outlet to a
public highway, is entitled to demand a right of way
through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of
the value of the land occupied and the amount of the
damage caused to the servient estate.
Payment of Indemnity

It shall consist of the value of the land

occupied and the amount of the damage
caused to the servient estate.
However, whenever a piece of land which is
acquired by sale, exchange or partition is

surrounded by other states of the vendor,

exchanger or co-owner, the owner is entitled to
a grant of right of way without indemnity.150
Such grant of right of way is deemed a tacit
condition of the contract and essentially
voluntary in character.
However, if the owner acquires his land by way
of a simple donation, there is no such tacit
condition because the donor receives nothing
from the donee.
Talisay-Silay Milling vs. CA

Facts:
The Central entered into identical milling
contracts with the sugarcane planters in the mill
district, among them the respondent landowners.
Under these contracts, the Central was granted the
right to construct and maintain railroad lines
traversing the planters' properties for the hauling of
sugarcane from the various plantations in the mill
district to the mill site. The identical milling contracts,
as with the contractual railway easements, were for a
period of fifty years to expire at the end of the 1969l970 sugar crop year. The respondents Trino Montinola,
Estate of Bernardino Jalandoni, and about 39 others refused
to extend the 50-year contractual right of way granted
to the Central's railway complex in the Talisay Silay mill
district and outlying areas.
On July 25, 1970 the Central lodged a complaint again
the respondent landowners "for the conversion of the
contractual easement of right of way into a legal
easement."
6) That there is no other way by which
the locomotives of the plaintiff can
pass in order to reach the plantations
of planters growing sugar canes in the
Talisay-Silay Mill District and milling
with plaintiff, except thru the railroad
lines travelling the parcels of land and
there is no outlet to a public highway to
which it can haul the canes of said
planters to its mill
8) That the railroad tracks traversing the
different parcels of land are on portions
thereof least prejudicial to the ownersdefendants herein;
9) The plaintiff by means of letters sent
to each and every defendant herein,
offered to lease the area in their
respective properties
Issue: WON Central is entitled to acquire legal easement on
the subject portion of the land
Ruling: The factual disparity of the case at bar from the
situations obtaining in the Bacolod-Murcia, etc., cases is not
substantial and does not give additional leverage to the
Central insofar as it must deal with the respondent
landowners respecting its desire to obtain a legal easement of
right of way for its railway system. The Central claims that
it has fulfilled all the preconditions prescribed in
articles 649 and 650 of the Civil Code or, at the very

least, has alleged their attendance in its verified

complaint. This claim of the Central is self-serving.
First, the Central, even as it assumes the role of a
dominant estate, wants a railway access to the fields
of its planters to be able to haul the latter's sugarcane
to the milling site. It does not seek access to a public
highway. As a matter of fact, the court a quomade a finding
from the sketch submitted by the Central that "the entire
length of one side or plaintiff's mill site abuts the
provincial road, which certainly is a most adequate
outlet to a public highway."
Second, the Central's offer to lease the affected portions
of the respondent landowners' properties for P0.20 per
square meter per annum is not the "prepayment"
referred to in our previous decisions. Prepayment
means the delivery of the proper indemnity required by
law for the damage that might be incurred by the
servient estate in the event the legal easement is
constituted. 2 The fact that a voluntary agreement upon the
extent of compensation to be paid cannot be reached by the
parties involved, is not an impediment to the establishment of
such easement. Precisely, the action of the dominant
estate against the servient estate should include a
prayer for the fixing of the amount which may be due
from the former to the latter. Notably, the action filed
by the Central did not opt for this.
Third, as regards the requisite that the isolation is not the
result of the Central's own acts, the record shows that the
Central has acted to secure the continuance of its
easements of right of way at the eleventh hour when
its fifty year milling contracts with the respondent
landowners were on their last few months of life. This
laches on the part of the Central makes the denial of the
preliminary injunction all the more justified, for "a remedy
based on equity may not be awarded in favor of those who
sleep on their rights." 3
EASEMENT OF PARTY WALL

(4) Whenever the dividing wall bears the burden of the

binding beams, floors and roof frame of one of the
buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way
that the coping sheds the water upon only one of the
estates;
(6) Whenever the dividing wall, being built of masonry,
has stepping stones, which at certain intervals project
from the surface on one side only, but not on the
other;
(7) Whenever lands inclosed by fences or live hedges
adjoin others which are not inclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the
owner of the property or tenement which has in its
favor the presumption based on any one of these
signs. (573)
Art. 661. Ditches or drains opened between two
estates are also presumed as common to both, if there
is no title or sign showing the contrary.
There is a sign contrary to the part-ownership
whenever the earth or dirt removed to open the ditch
or to clean it is only on one side thereof, in which case
the ownership of the ditch shall belong exclusively to
the owner of the land having this exterior sign in its
favor. (574)
Art. 662. The cost of repairs and construction of party
walls and the maintenance of fences, live hedges,
ditches, and drains owned in common, shall be borne
by all the owners of the lands or tenements having the
party wall in their favor, in proportion to the right of
each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his partownership, except when the party wall supports a
building belonging to him. (575)
Art. 663. If the owner of a building, supported by a
party wall desires to demolish the building, he may
also renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent any
damage which the demolition may cause to the party
wall, on this occasion only, shall be borne by him. (576)

Art. 658. The easement of party wall shall be governed

by the provisions of this Title, by the local ordinances
and customs insofar as they do not confl ict with the
same, and by the rules of co-ownership. (571a)

Art. 664. Every owner may increase the height of the

party wall, doing so at his own expense and paying for
any damage which may be caused by the work, even
though such damage be temporary.

Art. 659. The existence of an easement of party wall is

presumed, unless there is a title, or exterior sign, or
proof to the contrary:

The expenses of maintaining the wall in the part newly

raised or deepened at its foundation shall also be paid
for by him; and, in addition, the indemnity for the
increased expenses which may be necessary for the
preservation of the party wall by reason of the greater
height or depth which has been given it. If the party
wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at
his own expense and, if for this purpose it be
necessary to make it thicker, he shall give the space
required from his own land. (577)

(1) In dividing walls of adjoining buildings up to the

point of common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural
lands. (572)
Art. 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there is
a window or opening;
(2) Whenever the dividing wall is, on one side, straight
and plumb on all its facement, and on the other, it has
similar conditions on the upper part, but the lower part
slants or projects outward;
(3) Whenever the entire wall is built within the
boundaries of one of the estates;

Art. 665. The other owners who have not contributed

in giving increased height, depth or thickness to the
wall may, nevertheless, acquire the right of partownership therein, by paying proportionally the value
of the work at the time of the acquisition and of the
land used for its increased thickness. (578a)
Art. 666. Every part-owner of a party wall may use it in
proportion to the right he may have in the co-

ownership, without interfering with the common and

respective uses by the other co-owners. (579a)

Nature of a Party Wall:

It is a servitude
In ordinary co-ownership, none of the co-owners may
do anything on the co-owned property for his own
exclusive benefit because he would be impairing the
rights of others. But in a party wall, there is no such
juridical limitation upon the action of the owner.
As explained by Senator Tolentino, when the law
grants to the owners of a party wall the right to make
in it works for the exclusive benefit of the person
making them, and not in the interest of the others,
such grant cannot be by mere title of co-ownership,
but by virtue of a right of servitude.

Domingo Lao vs. Alburo

On May 8, 1914, counsel for the said husband and wife
filed for the registration of four parcels of land,
together with the buildings thereon, of which they
claimed to be the absolute owners.
The application recites that the first of the four abovementioned properties was appraised in the last
assessment, the land at P4,664 and the buildings at P4,000;
the second parcel, the land at P5,492 and the buildings at
P3,600; the third parcel, the land at P6,329 and the buildings
at P4,000; and the fourth parcel, the land at P8,529 and the
buildings at P22,500; and that the said properties are all
unencumbered and no one has any right or share
therein except the applicants, who acquired them by
purchase, the first parcel from Felix Zalvidea, by a
public instrument of June 11, 1912; the second parcel,
from Clara Lichauco and her husband Catalino Arevalo,
by a public instrument of September 12, 1912; the
third parcel, from Antonio Abraham Brimo, by a public
instrument of March 28, 1911; and the fourth parcel,
from Marcela Lao, by a public instrument of April 17,
1914. The application recited the names of the tenants who
occupy the first three properties and states that the applicants
occupy the fourth. The names and addresses of the owners or
proprietors of the adjoining properties are also given.
After due service of notice, counsel for the administrator of
the estate of the deceased Lorenza Alburo objected alleging
that in the part of the application relative to the second parcel
of the plan No. 1, a stone wall shown in that plan to be
northeast of the said parcel had been improperly
included; that this wall had belonged to the said
Lorenza Alburo, for it had existed since March 8, 1881; that
the principal timbers of the building that had belonged
to the said deceased had rested on it for more than
thirty-five years, and the latter's successors had been
and were now in the quiet, peaceable and
uninterrupted possession of the said wall.
RTC: Domingo Lao and Albina de los Santos, conclusively and
satisfactorily proved that they were, and had been for about
forty years, the lawful owners and possessors of the four
properties sought to be registered; wherefore the court
decreed the registration thereof in their names, but
ordered that record be made in the decree that the
wall marked on the plan of the parcel No. 2 as a stone
wall was a party wall.

Issue: Who owns the stone wall?

Article 572 of the Civil Code provides that the
easement of party walls is presumed, unless there is a
title or exterior mark or proof to the contrary in the
dividing walls of adjoining buildings up to the common
point of elevation. As the court held judgment appealed
from that the wall which lies between the properties of the
applicant and the objectors was a party wall, and as the
applicants appealed from this ruling, it devolves upon us to
decide whether it is in fact a party wall, as counsel for
the administrator of the estate of the deceased Alburo
or for her heirs finally admitted that it was in assenting
to that decision, although he averred in his written objection
that it was the exclusive property of the objectors; or whether,
on the contrary, this wall is a part of property marked
No. 2 on the plan Exhibit A, as the applicants claims.
Article 573 of the Civil Code also declares that it shall
be understood that there are exterior signs which
conflict with the easement of party wall, when, among
other circumstances, the entire wall is built on one of
the lots and not on the line dividing the two adjoining
parcels; when the dividing wall, being constructed of
stone and cement, has stone projecting at intervals
from the surface on one side only and not on the other;
and when it supports joists, beams, floors, and the roof
timbers of one of the houses but not of the adjoining
building.1awphil.net
The record shows it to have been duly proven that:

the enclosing wall of Lot No. 2 of the plan is

much higher than the adjoining building of the
objectors;

that along the top of the said wall there is a

gutter which catches the rain water from the
eaves of the roof of the applicants' building
and carries it thence to Calle Juan Luna
through an iron pipe fastened to the said wall;
that one-half of the top of the said wall is
covered by the roof of the applicants' building;

that the supports of the said wall project toward

the side of the applicants' land and that none
of the buttresses are on the side of the
objectors' lot;

that the stones of the wall in dispute are bound

or inset in the rear enclosing wall of the
applicants' property in such wise that the two
walls that inclose the lot form but a single
construction,

the exterior signs of which show that the wall

in question is not a party wall, but that it forms
a part of the applicant's building and belongs
to them

The division or space between the applicants' wall and

the wall on the objectors' land could be seen; the latter
wall was that of an old building that had belonged to

the said deceased and was destroyed by an

earthquake; and that in the rear of the objectors' land
were the ruins of a wall which had also flanked the wall
in dispute, and these ruins, according to the said
witness Mendoza were what was left of the wall of a
latrine formerly existing there.
These exterior signs contrary to the existence of a
party-wall easement cannot be offset by the
circumstance that the dispute wall projects into Calle
Juan Luna 74 centimeters farther than the applicants'
building, and neither can the fact that the face of this
projecting wall is on the same street line as the
objectors' building, for the reason that, in view of the said
signs contrary to the existence of the easement of party wall,
the projection of the wall does not prove that it was a
party wall belonging in common to the applicants and
the objectors and that the latter shared in the
ownership thereof.
The objectors have not proved that a part or one-half of the
wall in litigation was erected on the land that belonged to the
deceased Lorenza Alburo. The fact that the owners of the
objectors' property may have surreptitiously inserted
some of the timbers or joists of their building in the
wall belonging to the applicants is not enough to
convert this latter into a party wall, when there are so
many exterior signs to indicate the exclusive
ownership of the wall and to conflict with the existence
of the easement that the objectors endeavor to
establish.
Presumption of Easement of Party Wall
The law presumes the existence of an easement of party wall
in the following cases:
(1) In dividing walls of adjoining buildings up to the
point of common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns or rural communities; and
(3) In fences, walls and live hedges dividing rural
lands.
However, this presumption will not apply if:
1.
2.
3.

there is a title to the contrary

there is an exterior sign to the contrary
there is proof to the contrary

Instances when exterior sign exists:

1.
2.

3.
4.
5.

6.

Whenever in the dividing wall of buildings there is a

window or opening;
Whenever the dividing wall is, on one side, straight
and plumb on all its facement, and on the other, it
has similar conditions on the upper part, but the
lower part slants or projects outward;
Whenever the entire wall is built within the
boundaries of one of the estates;
Whenever the dividing wall bears the burden of the
binding beams, floors and roof frame of one of the
buildings, but not those of the others;
Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way
that the coping heds the water upon only one of the
estates;
Whenever the dividing wall, being built of masonry,
has stepping stones, which at certain intervals

7.

project from the surface on one side only, but not on

the other;
Whenever lands inclosed by fences or live hedges
adjoin others which are not inclosed.

In all the foregoing cases, the ownership of the walls, fences

or hedges shall be deemed to belong exclusively to the owner
of the property or tenement which has in its favor the
presumption based on any one of the these signs.
Right to Use
Every part-owner of a party wall may use it in proportion to
the right he may have in the co-ownership even without the
consent of the other owners so long as he does not interfere
with the common and respective uses by the other co-owners.
Right to Increase Height of Party Wall
Each of the co-owner has the right to increase the height of
the party wall subject to two conditions:
1.
2.
3.

Done at his expense

Pay damages which may be caused by his work even
if the damage is temporary
If the party wall cannot bear the increased height,
the owner desiring to raise it shall be obliged to
reconstruct it at his own expense, and, if for this
purpose it be necessary to make it thicker, he shall
give the space required from his own land.

Note: The co-ownership is maintained up to the point where

the original wall extended. But with respect to the additional
height, the same shall be exclusively owned by the part-owner
at whose instance the party wall was raised.
As a consequence, the expenses in maintaining the additional
height, as well as the increase in expenses which may be
necessary for the preservation of the party wall by reason of
the greater height, shall be borne by him.
EASEMENT OF LIGHT AND VIEW
Art. 667. No part-owner may, without the consent of
the others, open through the party wall any window or
aperture of any kind. (580)
Art. 668. The period of prescription for the acquisition
of an easement of light and view shall be counted:
(1) From the time of the opening of the
window, if it is through a party wall; or
(2) From the time of the formal prohibition
upon the proprietor of the adjoining land
or tenement, if the window is through a
wall on the dominant estate. (n)
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not a party wall,
adjoining a tenement or piece of land belonging to
another, can make in it openings to admit light at the
height of the ceiling joists or immediately under the
ceiling, and of the size of thirty centimeters square,
and, in every case, with an iron grating
imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can
close them should he acquire part-ownership thereof,
if there be no stipulation to the contrary.
He can also obstruct them by constructing a building
on his land or by raising a wall thereon contiguous to
that having such openings, unless an easement of light
has been acquired. (581a)

Art. 670. No windows, apertures, balconies, or other

similar projections which afford a direct view upon or
towards an adjoining land or tenement can be made,
without leaving a distance of two meters between
the wall in which they are made and such contiguous
property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a
distance of sixty (60) centimeters.
The nonobservance of these distances does not give
rise to prescription.
(582a)
Art. 671. The distance referred to in the preceding
article shall be measured in cases of direct views from
the outer line of the wall when the openings do not
project, from the outer line of the latter when they
do, and in cases of oblique views from the dividing line
between the two properties. (583)
Art. 672. The provisions of Article 670 are not
applicable to buildings separated by a public way or
alley, which is not less than three meters wide, subject
to special regulations and local ordinances. (584a)
Art. 673. Whenever by any title a right has been
acquired to have direct views, balconies or belvederes
overlooking an adjoining property, the owner of the
servient estate cannot build thereon at less than a
distance of three meters to be measured in the manner
provided in Article 671. Any stipulation permitting
distances less than those prescribed in Article 670 is
void. (585a)
Kinds:
The easement really consists of;
1.
2.

Positive
Negative

Note: the easement of lights in the case of windows

opened in ones own wall is of a negative character,
and, as such, can not be acquired by prescription except by
counting the time of possession from the date on which the
owner of the dominant estate may, by an instrument
acknowledged before a notary public, have prohibited the
owner of the servient estate from doing something which it
would be lawful for him to do were it not for the easement.
If the window, on the other hand, is opened in a party wall,
and not in a wall the sole and exclusive property of the owner
of the dominant tenement, the easement of lights is positive
and the 10-year period of prescription commences from the
time of the opening of the window.

public, the owner of the servient estate, from executing an act

which would be lawful without the easement.53
The foregoing principles are best explained if we are going to
consider the acquisition of easement of light and view through
prescription.
At the outset, it must be pointed out that a building may
receive light in various manners in the enjoyment of an
easement of light, because the openings through which the
light penetrates may be
made in ones own wall, in the wall of ones neighbor, or in a
party wall.
The legal doctrine applicable in either one of these cases is
different, owing to the fact that, although anyone may open
windows in his own wall, no one has a right to do so in the
wall of another without the
consent of the owner, and it is also necessary, in accordance
with Article 667 of the New Civil Code, to obtain the consent
of the other co-owner when the opening is to be made in a
party wall.
Gargantos vs Yanon
Facts: late Francisco Sanz was the former owner of a
parcel of land with the buildings and improvements. He
subdivided the lot into three and then sold each
portion to different persons. One portion was purchased
by Guillermo Tengtio who subsequently sold it to Vicente Uy
Veza. Another portion, with the house of strong
materials thereon, was sold in 1927 to Tan Yanon,
respondent herein. This house has on its northeastern
side, doors and windows over-looking the third
portion, which, together with the camarin and small
building thereon, after passing through several hands,
was finally acquired by Juan Gargantos, petitioner
herein.
Gargantos applied to the Municipal Mayor for a permit to
demolish the roofing of the old camarin and the permit was
granted, Gargantos asked the Municipal Council of Romblon
for another permit, this time in order to construct a
combined residential house and warehouse on his lot.
Tan Yanon opposed approval of this application.
Prov. Fiscal and District Engr. Recommended the granting of
the building permit to Gargantos. Yanon filed an action to
restrain Gargantos from constructing a building that would
prevent plaintiff from receiving light and enjoying the
view trough the window of his house, unless such
building is erected at a distance of not less than three
meters from the boundary line between the lots of
plaintiff and defendant but it was dismissed.

(a) If the easement is positive, the 10-year period is counted

from the day on which the owner of the dominant estate, or
the person who may have made use of the easement,
commenced to exercise it upon the servient estate; or

Gargantos: respondent never acquired any easement either

by title or by prescription. Assuredly, there is no deed
establishing an easement. Likewise, neither petitioner nor his
predecessors-in-interest have ever executed any deed
whereby they recognized the existence of the easement, nor
has there been final judgment to that effect. Invoking our
decision in Cortes vs. Yu-Tibo (2 Phil., 24), respondent has
not acquired an easement by prescription because he
has
never
formally
forbidden
petitioner
from
performing any act which would be lawful without the
easement, hence the prescriptive period never started.

(b) If the easement is negative, the 10-year period is counted

from the day on which the owner of the dominant estate
forbade, by an instrument acknowledged before a notary

CA: reversed the decision of RTC and granted the

restraining order unless "he erects the same at a

Prescription
If the easement is both continuous and apparent, it may be
acquired by virtue of prescription within a period of ten (10)
years. The commencement of the ten-year period of
prescription will depend on whether the easement is positive
or negative, as follows:

distance of not less than three meters from the

boundary line of his property, in conformity with
Article 673 of the New Civil Code."
Issue: whether the property of respondent Tan Yanon
has an easement of light and view against the property
of petitioner Gargantos.
Ruling:
It is obvious, however, that Article 538, O.C.C. (now Article
621, N.C.C.) and the doctrine in the Yu-Tibo case are not
applicable herein because the two estates, that now
owned by petitioner, and that owner by respondent,
were formerly owned by just one person, Francisco
Sanz. It was Sanz who introduced improvements on
both properties. On that portion presently belonging to
respondent, he constructed a house in such a way that
the northeastern side thereof extends to the wall of
the camarin on
the
portion
now
belonging
to
petitioner. On said northeastern side of the house,
there are windows and doors which serve as passages
for light and view. These windows and doors were in
existence when respondent purchased the house and lot from
Sanz. The deed sale did not provide that the easement
of light and view would not be established. This then is
precisely the case covered by Article 541, O.C.C (now Article
624, N.C.C) which provides that the existence of an
apparent sign of easement between two estates,
established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so
that the easement will continue actively and passively,
unless at the time the ownership of the two estate is
divided, the contrary is stated in the deed of alienation
of either of them, or the sign is made to disappear
before the instrument is executed. The existence of the
doors and windows on the northeastern side of the
aforementioned house, is equivalent to a title, for the
visible and permanent sign of an easement is the title
that characterizes its existence (Amor vs. Florentino, 74
Phil., 403).
We find that respondent Tan Yanon's property has an
easement of light and view against petitioner's
property. By reason of his easement petitioner cannot
construct on his land any building unless he erects it at a
distance of not less than three meters from the boundary line
separating the two estates.
Cortes vs. Yu-Tibo
Facts: The case was brought for the purpose of restraining
the continuation of certain buildings commenced by the
defendant.
The wife of the plaintiff owns house No. 65 in Calle Rosario.
House No 65 has windows which receives light and air from
the adjacent house, which is house No 63 of the same street.
Plaintiff contends that these windows have been in
existence since 1843. The defendant, tenant of house No 63
has commenced works that raised the roof of house No 63
which covered house No 65, depriving house No 65 of air and
light formerly received through the window.
The contention of the plaintiff is that by the constant and
uninterrupted use of the windows referred to above
during a period of fifty-nine years he acquired from

prescription an easement of light in favor of the house

No. 65, and as a servitude upon house No. 63, and,
consequently, has acquired the right to restrain the making of
any improvements in the latter house which might in any
manner be prejudicial to the enjoyment of the said easement.
He contends that the easement of light is positive; and
that therefore the period of possession for the
purposes of the acquisition of a prescriptive title is to
begin from the date on which the enjoyment of the
same commenced.
The defendant, on the contrary, contends that the
easement is negative, and that therefore the time for the
prescriptive acquisition thereof must begin from the
date on which the owner of the dominant estate may
have prohibited, by a formal act, the owner of the
servient estate from doing something which would be
lawful but for the existence of the easement.
RTC: below in its decision held in the easement of light is
negative, and this ruling has been assigned by the plaintiff
as error to be corrected by this court.
Issue: Was the easement positive or negative? When did the
prescriptive period start to run?
Ruling: The Court clarified that mere act of opening one owns
window is an act of dominion not of easement. The easement
here is the (possible) prohibition of creating any
improvements on the property of the defendants (negative
easement) that may impede or limit the use of the window.
Thus, plaintiff is totally wrong in saying that prescription for
the easement starts to kick in when the window was made
and acknowledge by the adjacent owner. In fact, what is
needed in this situation is a formal act through a
notarial prohibition so that prescriptive period will
start. The fact that the defendant has not covered the
windows of the apellant/ plaintiff does not necessarily imply
the recognition of the acquisitive prescription of the alleged
easement as this might just be a result of a mere tolerance
on the part of the defendant.
Plaintiffs asked for a rehearing but was again denied. Plaintiff
mentions about their windows and watersheds to be
apparent easements, or just projitiendi and jus spillitiendi.
The court says that the plaintiffs are obviously confused
between the right exercised by owners and the rights
provided in easements.
Ruling: It is a general rule that no part owner can, without
the consent of the other, make in a party wall a window or
opening of any kind (Art. 580)
The very fact of making such opening in such a wall may be
the basis for acquisition of a prescriptive title without the
necessity of any active opposition because it always
presupposes the express or implied
consent of the owner of the wall, which in time, implies a
voluntary waiver of the right to oppose.
The exception is when the windows are not opened on the
neighbor's side, there is need of a prohibition from exercising
that neighbor's right to build on his land or cover the closed
window on the party wall.
The period of prescription starts to run from such prohibition if
the neighbor consents to it.
Note: The law refers to all kinds of windows, even regulation
windows. According to article 528, windows with "similar
projections" include sheds.
The exception applies in this case because:
1) what is concerned is a party wall;
2) there was no prohibition on Yu-Tibo to build
anything that would cover the Cortes' window (Yu-Tibo wanted
to raise his roof which would in effect cover 1/2 of the window)
Observance of Certain Distance

The law prohibits the making of windows, apertures,

balconies, or other similar projections which afford a direct
view upon or towards an adjoining land or tenement without
leaving a distance of two meters between the wall in which
they are made and such contiguous property.
With respect to the side or oblique views upon or towards
such conterminous property, the law requires that the
distance be sixty (60) centimetres.
Direct views:

Measured from the outer line of the wall when the

openings do not project
Measured from the outer line of the latter when they
do

Oblique views:

Measured from the dividing line between the two

properties

Note: The foregoing requirement does not apply, however,

to buildings separated by a public way or alley, which is not
less than three meters wide, unless there is a special
regulation and local ordinance which provides to the contrary.
Effect of Violation of Distance:

If opening of the window, may be ordered to close

Since the easement is a negative one, the 10-year
period begins to run only from the time of the formal
prohibition mentioned in Articles 621 and 668 of the
New Civil
Code.
If not action, it can be acquired by prescription

Openings where Distance are Not Observed

GR: If a building is right on the boundary line or the distances
required in Article 670 are not observed, the owner of a wall
adjoining a tenement or piece of land belonging to
another, which is not a party wall, may not make an
opening in the said wall.
Exceptions:
1.

2.

Opening must not be more than 30 centimeters

square and made at the height of the ceiling joists or
immediately under the ceiling, and with an iron
grating imbedded in the wall and with a wire screen;
and
it must be for the purpose of admitting light only and
not for the purpose of view

What if the above conditions are violated, effect:

1.
2.

the owner of the property adjoining the wall may

demand for closure
may compel the other to comply with the formal
requirements

Other remedies:
Even in the absence of any violation, the owner of the
adjacent property may close the opening should he
acquire part ownership of the wall where the opening
has been made, if there be no stipulation
to the contrary.
No violation, not entitled to demand closure, and no
acquisition of part-ownership may obstruct the opening by
constructing a building on his land or by raising a wall
thereon contiguous to that having such opening.
(Merely an exercise of right of ownership)

Note: He may not resort to this remedy if the owner of the

wall with the opening has already acquired an easement of
light.
Drainage of Building
Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the
rain water shall fall on his own land or on a street or
public place, and not on the land of his neighbor,
even though the adjacent land may belong to two or
more persons, one of whom is the owner of the roof.
Even if it should fall on his own land, the
owner shall be obliged to collect the water in such a
way as not to cause damage to the adjacent land or
tenement. (586a)
Art. 675. The owner of a tenement or a piece of land,
subject to the easement of receiving water falling from
roofs, may build in such manner as to receive the
water upon his own roof or give it another outlet in
accordance with local ordinances or customs, and in
such a way as not to cause any nuisance or damage
whatever to the dominant estate. (587)
Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to
give an outlet through the house itself to the rain
water collected thereon, the establishment of an
easement of drainage can be demanded, giving an
outlet to the water at the point of the contiguous lands
or tenements where its egress may be easiest, and
establishing a conduit for the drainage in such manner
as to cause the least damage to the servient estate,
after payment of the property
indemnity. (583)
The easement of drainage of buildings is the right to divert or
empty the rain waters from ones own roof or shed to the
neighbors estate either drop by drop or through conduits.
Legal Easement of Drainage:
An easement of drainage may be demanded subject to
compliance with the following requisites:
(1) The yard or court of a house must be surrounded by
other houses (the dominant estate) and it is not
possible to give an outlet through the house itself to
the rain collected therefrom;
(2) The outlet to the water must be at the point of the
contiguous lands or tenements (the servient
estate) where its egress may be easiest;
(3) The conduit for the drainage must be established in
such manner as to cause the least damage to the
servient estate; and
(4) Proper indemnity must be paid to the owner of the
servient estate
Intermediate Distances and Work for Certain Constructions
and Plantings
Art. 677. No constructions can be built or plantings
made near fortify ed places or fortresses without
compliance with the conditions required in special
laws, ordinances, and regulations relating thereto.
(589)
Art. 678. No person shall build any aqueduct, well,
sewer, furnace, forge, chimney, stable, depository of

corrosive substances, machinery, or factory which by

reason of its nature or products is dangerous or
noxious, without observing the distances prescribed by
the regulations and customs of the place, and without
making the necessary protective works,
subject, in regard to the manner thereof, to the
conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by
stipulation on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall
be taken as may be considered necessary, in order to
avoid any damage to the neighboring
lands or tenements. (590a)

Art. 684. No proprietor shall make such excavations

upon his land as to deprive any adjacent land or
building of suffi cient lateral or subjacent
support.

Art. 679. No trees shall be planted near a tenement or

piece of land belonging to another except at the
distance authorized by the ordinances or customs of
the place, and, in the absence thereof, at a distance of
at least two meters from the dividing line of the
estates if tall trees are planted and at a distance of at
least fifty centimeters if shrubs or small
trees are planted.

Art. 687. Any proprietor intending to make any

excavation contemplated in the three preceding
articles shall notify all owners of adjacent lands.

Art. 685. Any stipulation or testamentary provision

allowing excavations that cause danger to an adjacent
land or building shall be void.
Art. 686. The legal easement of lateral and subjacent
support is not only for buildings standing at the time
the excavations are made but also for constructions
that may be erected.

Concept

Every landowner shall have the right to demand that

trees hereafter planted at a shorter distance from his
land or tenement be uprooted.

The right of lateral and subjacent support is the right

to have land supported by the adjoining land or the
soil beneath.

Each of two adjoining landowners is entitled to the

support of the others land.199

The provisions of this article also apply to trees which

have grown spontaneously. (591a)

Support is lateral when the supported and the

supporting lands are divided by a vertical plane.

Art. 680. If the branches of any tree should extend

over a neighboring estate, tenement, garden or yard,
the owner of the latter shall have the right to demand
that they be cut off insofar as they may spread over his
property, and, if it be the roots of a neighboring tree
which should penetrate into the land of another, the
latter may cut them off himself within his property.
(592)

Support is subjacent when the supported

land is above and the supporting land is beneath it.

Art. 681. Fruits naturally falling upon adjacent land

belong to the owner of said land. (n)
This topic prohibits the planting of trees near a tenement or
piece of land belonging to another person unless the following
distance requirement is observed:
(a) the distance authorized by local ordinances or customs of
the place, if any; or
(b) in default of the foregoing, at a distance of at least two (2)
meters from the dividing line of the estate in case of tall trees
and at a distance of at least 50 centimeters in case of shrubs
or small trees.
Note: If the foregoing distance requirement is not followed,
the owner of the adjacent land has the right to demand for the
uprooting of the trees which were planted in violation of the
rule.

EASEMENT AGAINST NUISANCE

Art. 682. Every building or piece of land is subject to
the easement which prohibits the proprietor or
possessor from committing nuisance
through noise, jarring, offensive odor, smoke, heat,
dust, water, glare and other causes.
Art. 683. Subject to zoning, health, police and other
laws and regulations, factories and shops may be
maintained provided the least possible annoyance is
caused to the neighbourhood
LATERAL AND SUBJACENT SUPPORT

Note: Easement of lateral and subjacent support is a negative

one it is in the form of prohibition on the part of a
landowner from making any excavation that will deprive the
adjacent land or building of sufficient lateral or subjacent
support. If the right of lateral and subjacent support is
violated, the adjoining landowner is entitled to seek
injunctive relief, in addition to the right to recover damages.

Castro vs Monsod
Facts: Petitioner is the registered owner of a parcel of land
located on Garnet Street, Manuela Homes, Pamplona, Las
Pias City. Respondent, on the other hand, is the owner of the
property adjoining the lot of petitioner, located on Lyra Street,
Moonwalk
Village,
Phase
2,
Las
Pias
City.
In 2000, respondent caused the annotation of an adverse
claim against sixty-five (65) sq.m. of the property of
petitioner. The adverse claim was filed without any claim of
ownership over the property. Respondent was merely
asserting the existing legal easement of lateral and subjacent
support
at
the
rear
portion
of
his
estate.
Petitioner averred that when she bought the property from
Manuela Homes in 1994, there was no annotation or existence
of
any
easement
over
the
property.
The trial court ratiocinated that the adverse claim of
respondent was non-registrable considering that the basis of
his claim was an easement and not an interest adverse to the
registered owner, and neither did he contest the title of
petitioner.
On appeal, the CA reversed the decision of the trial court and
ruled that while respondents adverse claim could not be
sanctioned because it did not fall under the requisites for
registering an adverse claim, the same might be duly
annotated in the title as recognition of the existence of a legal
easement of subjacent and lateral support. The purpose of the
annotation was to prevent petitioner from making injurious
excavations.

ISSUES: Whether or not the easement of lateral and

subjacent support exists on the subject adjacent
properties and, if it does, whether the same may be
annotated at the back of the title of the servient
estate.
Ruling: Article 684 of the Civil Code provides that no
proprietor shall make such excavations upon his land as to
deprive any adjacent land or building of sufficient lateral or
subjacent support. An owner, by virtue of his surface right,
may make excavations on his land, but his right is subject to
the limitation that he shall not deprive any adjacent land or
building of sufficient lateral or subjacent support. Between
two adjacent landowners, each has an absolute property right
to have his land laterally supported by the soil of his neighbor,
and if either, in excavating on his own premises, he so
disturbs the lateral support of his neighbors land as to cause
it, or, in its natural state, by the pressure of its own weight, to
fall away or slide from its position, the one so excavating is
liable. Here, the residential house and lot of respondent is
located on an elevated plateau of fifteen (15) feet above the
level of petitioners property; hence, an easement of
subjacent and lateral support exists in favor of respondent.
However, respondents assertion that he has an adverse claim
over the 65 sq.m. property of petitioner is misplaced since he
does not have a claim over the ownership of the land. The
annotation of an adverse claim over registered land under
Section 70 of Presidential Decree 1529 requires a claim on the
title of the disputed land. Therefore, an annotation of the
existence of the subjacent and lateral support is no longer
necessary.

VOLUNTARY EASEMENT
Art. 688. Every owner of a tenement or piece of land
may establish thereon the easements which he may
deem suitable, and in the manner and form which he
may deem best, provided he does not contravene the
laws, public policy or public order. (594)
Art. 689. The owner of a tenement or piece of land, the
usufruct of which belongs to another, may impose
thereon, without the consent of the usufructuary, any
servitudes which will not injure the right of usufruct.
(595)
Art. 690. Whenever the naked ownership of a
tenement or piece of land belongs to one person and
the benefi cial ownership to another, no perpetual
voluntary easement may be established thereon
without the
consent of both owners. (596)
Art. 691. In order to impose an easement on an
undivided tenement, or piece of land, the consent of
all the co-owners shall be required.
The consent given by some only, must be held in
abeyance until the last one of all the co-owners shall
have expressed his conformity.
But the consent given by one of the co-owners
separately from the others shall bind the grantor and
his successors not to prevent the exercise of the right
granted. (597a)
Art. 692. The title and, in a proper case, the
possession of an easement acquired by prescription
shall determine the rights of the dominant estate and
the obligations of the servient estate. In default

thereof, the easement shall be governed by such

provisions of this Title as are applicable
thereto. (598)
Art. 693. If the owner of the servient estate should
have bound himself, upon the establishment of the
easement, to bear the cost of the work required for the
use and preservation thereof, he may free himself from
this obligation by renouncing his property to the owner
of the dominant
estate. (599)
Concept
If the claimant is not entitled to demand for an easement as a
matter of right because the requisites for legal easement are
not present, the easement
may only be constituted upon the will of the owner of the
servient estate in which case, the easement is classified as
voluntary.
Note: only the owner of the property may constitute an
easement over a tenement because the creation of a
servitude is a disposition of a part of the right of ownership
and only an owner can do that.

Villanueva vs. Velasco

Facts: Petitioner Bryan Villanueva is the registered owner of
the parcel of land covered by Transfer Certificate of Tite. He
bought it from Pacific Banking Corporation, the mortgagee of
said property. The bank had acquired it from the spouses
Maximo and Justina Gabriel at a public auction on March 19,
1983. When petitioner bought the parcel of land there
was a small house on its southeastern portion. It
occupied one meter of the two-meter wide easement of
right of way the Gabriel spouses granted to the
Espinolas, predecessors-in-interest of private respondents, in
a Contract of Easement of Right of Way. The pertinent portion
of the contract dated November 28, 1979, states:
. . . in order to have an access to and from their
aforementioned land where their houses are constructed
and to have an outlet to Tandang Sora Ave. which is
the nearest public road and the least burdensome to
the servient estate and to third persons, it would be
necessary for them to pass through spouses MAXIMO
GABRIEL and JUSTINA CAPUNOs land and for this
purpose, a path or passageway of not less than two (2)
meters wide of said spouses property is necessary for
the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA
and for all their needs in entering their property.
WHEREFORE, in view of the fact that the property of the
ESPINOLA had been bought by them from MAXIMO CAPUNO,
father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and
JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO,
NENITA and AURORA ESPINOLA and their families to have a
permanent
easement of
right
of
way
over
the
aforementioned property of said spouses limited to not more
than two meters wide, throughout the whole length of the
southeast side of said property and as specifically indicated in
the attached plan which is made an integral part of this
Contract as Annex A;
Unknown to petitioner, even before he bought the land,
the Gabriels had constructed the aforementioned small

house that encroached upon the two-meter easement.

Petitioner was also unaware that private respondents, Julio
Sebastian and Shirley Lorilla, had filed a civil case for
easement, damages and with prayer for a writ of preliminary
injunction and/or restraining order against the spouses
Gabriel.[4] As successors-in-interest, Sebastian and Lorilla
wanted to enforce the contract of easement.
Issue: whether
petitioner.

the

easement

on

the

property

binds

servitude upon the property held in usufruct, it is not,

in reality, an easement or servitude because it will
not bind the owner or the property itself.

Easement Over a Co-owned Property

Ruling: At the outset, the subject easement (right of way)

originally was voluntarily constituted by agreement
between the Gabriels and the Espinolas. But as correctly
observed by the Court of Appeals, the easement in the
instant petition is both (1) an easement by grant or a
voluntary easement, and (2) an easement by necessity
or a legal easement.
A legal easement is one mandated by law, constituted
for public use or for private interest, and becomes a
continuing property right.[] As a compulsory easement, it is
inseparable from the estate to which it belongs, as provided
for in said Article 617 of the Civil Code.
The essential requisites for an easement to be compulsory
are:
(1) the dominant estate is surrounded by other immovables
and has no adequate outlet to a public highway;
(2) proper indemnity has been paid;
(3) the isolation was not due to acts of the proprietor of the
dominant estate;
(4) the right of way claimed is at a point least prejudicial to
the servient estate; and
(5) to the extent consistent with the foregoing rule, where the
distance from the dominant estate to a public highway may
be the shortest.]
The small house occupying one meter of the two-meter
wide easement obstructs the entry of private
respondents cement mixer and motor vehicle. One
meter is insufficient for the needs of private respondents. It is
well-settled that the needs of the dominant estate determine
the width of the easement.[17] Conformably then, petitioner
ought to demolish whatever edifice obstructs the
Establishment of Easement on Property Held in Usufructuary

In short, the right created is not a real one but a

mere personal right which is binding against the
usufructuary only. Hence, upon the termination of the
usufruct the burden so imposed by the usufructuary
likewise ceases.

If the tenement or piece of land is in a state of coownership, the unanimous consent of all co-owners is
required in order to constitute a voluntary easement
upon the same.207 Consent by the co-owners may
be given by them either simultaneously or
successively

Abandonment of the Property

If upon the establishment of a voluntary easement,

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

The owner of the servient estate need not renounce

his ownership over the entire property if the
servitude affects only a part thereof in which case, he
may abandon only that part which is burdened with
the servitude.

Should abandonment be reduced in some form?

Yes, since there exists a transfer of ownership over a real
property. It must appear in a public document, however, only
for convenience.

NUISANCE
Art.
694.
A
nuisance
is
any
act,
omission,
establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of others;
or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
1) Definition, aspects of, Distinctions
- Literally, it means annoyance, anything that works hurt or
injury.

Since easement consists of a limited use and

enjoyment of the thing without possession, the
establishment of a voluntary easement on a
tenement or piece of land is not inconsistent with the
existence of a usufruct over the same property.
Hence, the owner of such tenement or piece of land
may impose any servitude thereon and he may do so
even without the consent of the usufructuary.

- that class of wrongs that arise from the unreasonable,

unwarrantable, or unlawful use by a person of his own
property, either real or personal, or from his own improper,
indecent, or unlawful personal conduct, working an
obstruction of or injury to the right of another or of the public,
and producing such material annoyance, inconvenience,
discomfort, or hurt, that the law will presume resulting
damage.

It is only the owner of the tenement or piece of land

who may constitute an easement over his property.
If it is the usufructuary who will impose the same

- nuisance could be anything it could be an act or

omission of a person or simply an establishment, business or
condition of a property or anything else which interferes

with the rights of a citizen, either in person, property, the

enjoyment of his property, or his comfort.
- Article 431 of the New Civil Code specifically mandates that
the owner of a thing cannot make use thereof in such a
manner as to injure the rights of a third person. The law on
nuisance further clarifies the rule stated in Article 431.
Therefore, the law on nuisance is a restriction or limitation
upon ownership.

- establishing punitive damages in this state, this court

recognized that in certain situations of trespass, the actual
harm is not in the damage done to the land, which may be
minimal, but in the loss of the individuals right to exclude
others from his or her property and, the court implied that this
right may be punished by a large damage award despite the
lack of measurable harm (Jacque v Steenberg)
- Requisites for Recovery Under Private Nuisance:

- If a nuisance will result in injury to another person, the

provisions of Articles 696, 697, 699, 703 and 705 allow
recovery of damages. But in such cases, the source of
obligation of the person responsible to pay damages is quasi
delict or tort.

The essence of a private nuisance claim is the

protection of a property owners interest in the
private use and enjoyment of his land.

Plaintiff must be able to prove two things:

- Differs from negligence. Liability for negligence is based on

want of a proper care, while, ordinarily, a person who creates
or maintains a nuisance is liable for the resulting injury to
others regardless of the degree of care or skill exercised to
avoid such injury.
Art. 695. Nuisance is either public or private. A public
nuisance affects a community or neighborhood or any
considerable number of persons, although the extent
of the annoyance, danger or damage upon individuals
may be unequal. A private nuisance is one that is not
included in the foregoing definition.

Public, Private Nuisance, Per Se, and Per Accidens

- A public nuisance affects a community or neighborhood or
any considerable number of persons, although the extent of
the annoyance, danger or damage upon individuals may be
unequal.
- A private nuisance, on the other hand, affects only an
individual or a limited number of individuals.
- As distinguished from a public nuisance, a private nuisance
includes any wrongful act which destroys or deteriorates the
property of an individual or of a few persons or interferes with
their lawful use or enjoyment thereof, or any act which
unlawfully hinders them in the enjoyment of a common or
public right and causes them a special injury different from
that sustained by the general public.
- Mixed Nuisance. One which is both public and private in its
effects, public because it injures many persons or all the
community, and private in that it also produces special
injuries to private rights.
- Private Nuisance Distinguished From Trespass to Land.
Essential difference is that trespass is an invasion of the
plaintiffs interest in the exclusive possession of his land, while
nuisance is an interference with his use and enjoyment of it.
- Thus, where there is no actual physical invasion of the
plaintiffs property, the cause of action is for nuisance rather
than trespass.
- Trespass is said to protect the interest in possession of land,
while nuisance is said to protect the use and enjoyment of
land.
- Any intentional intrusion that deprives another of possession
of land, even if only temporarily, is considered a trespass, and
one who commits an intentional trespass is subject to liability
irrespective of whether he thereby causes any harm to any
legally protected interest of the other. (due to the right to
exclude others from his or her land or property)

(1) That there was damage to the property; and

(2) The interference is either:
(a) Intentional and unreasonable; or
(b) Unintentional and otherwise negligent or reckless
conduct; or
(c) Resulting in abnormally dangerous activities in an
inappropriate place.
- There Must Be Damage. Unlike in trespass to land which
does not require damage, it is necessary in private nuisance
that the plaintiff must suffer some form of damage. Damage
may be proved in one of two ways:
(1) by proving physical damage to the property (otherwise
known as tangible nuisance); or
(2) by proving personal discomfort (loss of amenity) in the
claimants use of the premises (otherwise known as
intangible nuisance
Physical damage: (for example, damage to trees and
shrubs) then it would be necessary only to show that the harm
had been caused by the defendants action and that some
kind of harm was a foreseeable consequence of the
defendants action.
- Damage relates to the amenity of the land: a claim for
private nuisance may likewise prosper if the defendants
actions cause the land to become less valuable.
Eg:
noise from a go-kart track
bad smell emanating form a pig farm
however, interference with television reception due to the
construction of a tall tower was not actionable in either public
or private nuisance as an interference with the use or
enjoyment of land.
-

Substantial,
Intentional
and
Unreasonable
Interference
After proving that there is damage to the property:
the plaintiff must prove that the interference with
the private use and enjoyment of anothers land is
either:
(a) Intentional and unreasonable; or
(b) Or unintentional and otherwise negligent or
reckless conduct; or
(c) Resulting in abnormally dangerous activities in an
inappropriate place.

- Interference is intentional when the actor knows or should

know that the conduct is causing a substantial and
unreasonable interference. Interference is unreasonable when
the gravity of the harm outweighs the social value of the

activity alleged to cause the harm. This is the doctrine of

comparative utility or balancing of utilities doctrine.
- In deciding the issue of unreasonableness, courts are
therefore called upon to maintain a balance between the
interests and rights of the defendant to use his land and the
claimants interests.
- Factors to determine reasonable interference:
(1) The locality of the plaintiff because inhabitants of
industrial areas must expect more interference;
(2) The extent of the interference (even in industrial areas,
there are limits);
(3) The time of day (a continuous loud noise made during the
middle of the night, for example, is considered less acceptable
than the same during the day
- Nuisance Per Se and Per Accidens. Difference is that in the
former, injury in some form is certain to be inflicted, while in
the latter, the injury is uncertain or contingent until it actually
occurs.
- Nuisance Per Se a nuisance under any and all circumstances,
regardless of location or surroundings, because it constitutes
a direct menace to public health or safety.
Eg: Those which are prohibited by law, such as houses of ill
fame (or prostitution) and gambling houses.
- Nuisance Per Accidens may become a nuisance by reason of
the circumstances of the location and surroundings or manner
in which it is performed or operated, and its existence being a
question of fact, it cannot be abated without due hearing in a
tribunal authorized to decide whether such a thing does in law
constitute a nuisance.

Doctrine of Attractive Nuisance

-

One who maintains on his premises dangerous

instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise
ordinary care to prevent children from playing
therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child
is technically a trespasser in the premises.
Principal reason for the doctrine is that the condition
or appliance in question although its danger is
apparent to those of age, is so enticing or alluring to
children of tender years as to induce them to
approach, get on or use it, and this attractiveness is
an implied invitation to such children.
Hidalgo enterprise v Guillermo Balandan

Facts:
Hidalgo Enterprises, Inc. "was the owner of an ice-plant
factory, in whose premises were installed two tanks full of
water which were not provided with any kind of fence or top
covers. Through the wide gate entrance, which is continually
open, motor vehicles hauling ice and persons buying said
commodity passed, and anyone could easily enter the said
factory, as he pleased. There was no guard assigned on the
gate. Mario Balandan, a boy barely 8 years old, while playing
with and in company of other boys of his age entered the
factory premises through the gate, to take a bath in one of
said tanks; and while thus bathing, Mario sank to the bottom
of the tank, and died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of

Laguna, took the view that the petitioner maintained an
attractive nuisance (the tanks), and neglected to adopt the
necessary precautions to avoid accidents to persons entering
its premises. It applied the doctrine of attractive nuisance
which says:
One
who
maintains
on
his
premises
dangerous
instrumentalities or appliances of a character likely to attract
children in play, and who fails to exercise ordinary care to
prevent children from playing therewith or resorting thereto, is
liable to a child of tender years who is injured thereby, even if
the child is technically a trespasser in the premises.
The principle reason for the doctrine is that the condition or
appliance in question although its danger is apparent to those
of age, is so enticing or alluring to children of tender years as
to induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children.
Issue:
Is a swimming pool or water tank an instrumentality or
appliance likely to attract the little children in play? In other
words is the body of water an attractive nuisance?
Held:
The great majority of American decisions say no. The
attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of
some unusual condition or artificial feature other than the
mere water and its location.
The reason why a swimming pool or pond or reservoir of water
is not considered an attractive nuisance was as follows:
Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of
drowning if the owner of private property creates an
artificial pool on his own property, merely duplicating the work
of nature without adding any new danger, . . . (he) is not liable
because of having created an "attractive nuisance."
xxx
- attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of
some unusual condition or artificial feature other than the
mere water and its location.

Art. 696. Every successive owner or possessor of

property who fails or refuses to abate a nuisance in
that property started by a former owner or possessor
is liable therefor in the same manner as the one who
created it.
Art. 697. The abatement of a nuisance does not
preclude the right of any person injured to recover
damages for its past existence.
Art. 698. Lapse of time cannot legalize any nuisance,
whether public or private.
Art. 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local
ordinance; or
(2) A civil action; or
(3) Abatement, without judicial proceedings.

Art. 700. The district health officer shall take care that
one or all of the remedies against a public nuisance
are availed of.
Art. 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.

Art. 702. The district health officer shall determine

whether
or
not
abatement,
without
judicial
proceedings, is the best remedy against a public
nuisance.
Art. 703. A private person may file an action on
account of a public nuisance, if it is specially injurious
to himself.
Art. 704. Any private person may abate a public
nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing
which constitutes the same, without committing a
breach of the peace, or doing unnecessary injury. But
it is necessary:

illegal construction, the City and/or Municipal

Engineer, who is charged with the responsibility of
abating public nuisances.
private person may likewise abate a public nuisance
by removing, or if necessary, by destroying the thing
which constitutes the same, without committing a
breach of the peace, or doing unnecessary injury.
This rule, however, applies only to nuisances per se
and prior to the abatement, it is necessary:
(1) That demand be first made upon the owner or
possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district
health officer and executed with the assistance of the
local police; and
(4) That the value of the destruction does not exceed
three thousand pesos (P3,000)

- Private person or a public official who extra-judicially abates

a nuisance shall be liable for damages in the following
situations:
(1) if he causes unnecessary injury; or

(1) That demand be first made upon the owner or

possessor of the property to abate the nuisance;

(2) if an alleged nuisance is later declared by the courts to be

not a real nuisance.

(2) That such demand has been rejected;

- Whether a nuisance is a public or a private one, a civil action

for its abatement or for injunction may be filed

(3) That the abatement be approved by the district

health officer and executed with the assistance of the
local police; and
(4) That the value of the destruction does not exceed
Three thousand pesos (P3,000).
Art. 705. The remedies against a private nuisance are:

(1) A civil action; or

-

(2) Abatement, without judicial proceedings.

Art. 706. Any person injured by a private nuisance may
abate it by removing, or if necessary by destroying the
thing which constitutes the nuisance, without
committing a breach of the peace or doing
unnecessary injury. However, it is indispensable that
the procedure for extrajudicial abatement of a public
nuisance by a private person be followed.

Art. 707. A private person or a public official

extrajudicially abating a nuisance shall be liable for
damages:
(1) If he causes unnecessary injury; or

In the said action for damages, not only the person

who caused the nuisance but every successive owner
or possessor of the property who fails or refuses to
abate the same in that property shall be liable for
damages in the same manner as the one who
created the nuisance.

Estate of Gregoria Francisco et. Al v CA

Facts:

(2) If an alleged nuisance is later declared by the

courts to be not a real nuisance.
Remedies for Abatement, Abatement without
Proceedings, Remedies against a Private Nuisance

Public nuisance which is not nuisance per se: in

which case the remedy of summary abatement is not
available; the action for its abatement or injunction
should be commenced by the city or municipal
mayor.
Private nuisance: any person injured by the same
may file the action for abatement or for injunction.
Aside from the action for abatement or injunction, a
claim for damages may likewise be maintained by
one injured by a private nuisance.
Public nuisance
GR: no action for damages by a private individual
XPN: it is specially injurious to himself.

Judicial

Whether the nuisance is public or private, the

following remedies are available: (1) a civil action; or
(2) abatement, without judicial proceedings.
With regard to a public nuisance, the additional
remedy of criminal prosecution under the provisions
of the Revised Penal Code or any applicable local
ordinance is also available.
Whether a nuisance is a public or a private one, it
may be abated, and the abatement may either be
without the necessity of judicial proceedings or only
upon due hearing, but only if it is a nuisance per se
Under Article 700 of the New Civil Code, it is the City
and/or the Municipal Health Officer, or in cases of

Herein petitioner claimed that the Quonset building located in

Port Area, Basilan which was purchased by Gregoria Francisco
(deceased) was with a permit to occupy the lot issued by the
Philippine Ports Authority (Port of Zamboanga). The said
property was used for storage of copra and was alleged by the
Municipality of Basilan as represented by Mayor Benjamin
Valencia, herein respondent, that it was a nuisance and would
endanger the health, safety and general welfare in pursuant
to the Municipal Ordinance "clean-up campaign on illegal
squatters and unsanitary surroundings along Strong
Boulevard." The Respondent Municipal Mayor ordered the
demolition
and
Respondent
municipal
employees
implemented the demolition, for which reason they are also
impleaded.
ISSUE: Whether or not Respondent Mayor could summarily,
without judicial process, order the demolition of petitioner's
quonset building.

HELD:
NO. It is a contravention of the requirements of due
process. Moreover, the enforcement and administration of the
provisions of the Ordinance resides with the Zoning
Administrator. It is said official who may call upon the City
Fiscal to institute the necessary legal proceedings to enforce
the provisions of the Ordinance .Respondents cant seek cover
under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. The storage of copra
in the quonset building is a legitimate business. By its nature,
it cant be said to be injurious to rights of property, of health
or of comfort of the community. While the Sangguniang Bayan
may provide for the abatement of a nuisance, it cant declare
a particular thing as a nuisance per se and order its
condemnation.
Municipal councils do not have the power to find as a fact
that a particular thing is a nuisance when such thing is not a
nuisance per se nor can they authorize the extra judicial
condemnation and destruction of that as a nuisance which, in
its nature, situation or use is not such. These things must be
determined in the ordinary courts of law. It was entitled to an
impartial hearing before a tribunal authorized to decide
whether the quonset building did constitute a nuisance in law.
They had deprived petitioner of its property without due
process of law.
Parayno v Jovellanos
Facts:
Petitioner was the owner of a gasoline filling station in
Calasiao, Pangasinan. Some residents of Calasiao petitioned
the Sangguniang Bayan (SB) of said municipality for the
closure or transfer of the station to another location. The
matter was referred to the Municipal Engineer, Chief of Police,
Municipal Health Officer and the Bureau of Fire Protection for
investigation. Upon their advise, the Sangguniang Bayan
recommended to the Mayor the closure or transfer of location
of petitioners gasoline station. In Resolution No. 50, it
declared that the existing gasoline station is a blatant
violation and disregard of existing law.
According to the Resolution, 1) the gasoline filling station is in
violation of The Official Zoning Code of Calasiao, Art. 6,
Section 44, the nearest school building which is San Miguel
Elementary School and church, the distances are less than
100 meters. (No neighbors were called as witnesses when
actual measurements were done by HLURB Staff, Baguio City
dated 22 June 1989); 2) it remains in thickly populated area
with commercial/residential buildings, houses closed (sic) to
each other which still endangers the lives and safety of the
people in case of fire; 3) residents of our barangay always
complain of the irritating smell of gasoline most of the time
especially during gas filling which tend to expose residents to
illness, and 4) It hampers the flow of traffic.
Petitioner moved for the reconsideration of the resolution but
was denied by the SB. Hence she filed a case before the RTC
claiming that the gasoline filling station was not covered
under Sec 44 of the mentioned law but is under Sec 21. Case
was denied by the court and by the CA. Hence this appeal.

ISSUE: Whether or not the closure/transfer of her gasoline

filling station by respondent municipality was an invalid
exercise of the latters police powers

HELD:

The respondent is barred from denying their previous claim

that the gasoline filling station is not under Sec 44. The
Counsel in fact admitted that : That the business of the
petitioner [was] one of a gasoline filling station as defined in
Article III, Section 21 of the zoning code and not as a service
station as differently defined under Article 42 of the said
official zoning code;
The foregoing were judicial admissions which were conclusive
on the municipality, the party making them. hence, because
of the distinct and definite meanings alluded to the two terms
by the zoning ordinance, respondents could not insist that
gasoline service station under Section 44 necessarily
included gasoline filling station under Section 21. Indeed,
the activities undertaken in a gas service station did not
automatically embrace those in a gas filling station.
As for the main issue, the court held that the respondent
municipality invalidly used its police powers in ordering the
closure/transfer of petitioners gasoline station. While it had,
under RA 7160, the power to take actions and enact measures
to promote the health and general welfare of its constituents,
it should have given due deference to the law and the rights
of petitioner.
A local government is considered to have properly exercised
its police powers only when the following requisites are met:
(1) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the
State and (2) the means employed are reasonably necessary
for the attainment of the object sought to be accomplished
and not unduly oppressive. The first requirement refers to the
equal protection clause and the second, to the due process
clause of the Constitution.
Respondent municipality failed to comply with the due process
clause when it passed Resolution No. 50. While it maintained
that the gasoline filling station of petitioner was less than 100
meters from the nearest public school and church, the records
do not show that it even attempted to measure the distance,
notwithstanding that such distance was crucial in determining
whether there was an actual violation of Section 44. The
different local offices that respondent municipality tapped to
conduct an investigation never conducted such measurement
either.
Moreover, petitioners business could not be considered a
nuisance which respondent municipality could summarily
abate in the guise of exercising its police powers. The
abatement of a nuisance without judicial proceedings is
possible only if it is a nuisance per se. A gas station is not a
nuisance per se or one affecting the immediate safety of
persons and property, hence, it cannot be closed down or
transferred summarily to another location.
On the alleged hazardous effects of the gasoline station to the
lives and properties of the people of Calasiao, we again note:
Hence, the Board is inclined to believe that the project being
hazardous to life and property is more perceived than factual.
For, after all, even the Fire Station Commander..
recommended to build such buildings after conform (sic) all
the requirements of PP 1185. It is further alleged by the
complainants that the proposed location is in the heart of the
thickly populated residential area of Calasiao. Again, findings
of the [HLURB] staff negate the allegations as the same is
within a designated Business/Commercial Zone per the Zoning
Ordinance.
WHEREFORE, the petition is hereby GRANTED. The assailed
resolution of the Court of the Appeals is REVERSED and SET
ASIDE. Respondent Municipality of Calasiao is hereby directed
to cease and desist from enforcing Resolution No. 50 against
petitioner insofar as it seeks to close down or transfer her
gasoline station to another location.

Lucena Grand Central Terminal v Jac Liner

Facts: The City of Lucena enacted an ordinance which
provides, inter alia, that: all buses, mini-buses and out-of-town
passenger jeepneys shall be prohibited from entering the city
and are hereby directed to proceed to the common terminal,
for picking-up and/or dropping of their passengers; and (b) all
temporary terminals in the City of Lucena are hereby declared
inoperable starting from the effectivity of this ordinance. It
also provides that all jeepneys, mini-buses, and buses shall
use the grand central terminal of the city. JAC Liner, Inc.
assailed the city ordinance as unconstitutional on the ground
that, inter alia, the same constituted an invalid exercise of
police power, an undue taking of private property, and a
violation of the constitutional prohibition against monopolies.
Issue: Whether or not the ordinance satisfies the requisite of
valid exercise of police power, i.e. lawful subject and lawful
means.
Held: The local government may be considered as having
properly exercised its police power only if the following
requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the
interference of the State, and (2) the means employed are
reasonably necessary for the attainment of the object sought
to be accomplished and not unduly oppressive upon
individuals. Otherwise stated, there must be a concurrence of
a lawful subject and lawful method
The questioned ordinances having been enacted with the
objective of relieving traffic congestion in the City of Lucena,
they involve public interest warranting the interference of the
State. The first requisite for the proper exercise of police
power is thus present. This leaves for determination the issue
of whether the means employed by the Lucena Sangguniang
Panlungsod to attain its professed objective were reasonably
necessary and not unduly oppressive upon individuals. The
ordinances assailed herein are characterized by overbreadth.
They go beyond what is reasonably necessary to solve the
traffic problem. Additionally, since the compulsory use of the
terminal operated by petitioner would subject the users
thereof to fees, rentals and charges, such measure is unduly
oppressive, as correctly found by the appellate court. What
should have been done was to determine exactly where the
problem lies and then to stop it right there.
The true role of Constitutional Law is to effect an equilibrium
between authority and liberty so that rights are exercised
within the framework of the law and the laws are enacted with
due deference to rights. It is its reasonableness, not its
effectiveness, which bears upon its constitutionality. If the
constitutionality of a law were measured by its effectiveness,
then even tyrannical laws may be justified whenever they
happen to be effective.

Jaime S. Perez v Spouses Madrona and Pante

Facts:
Spouses are registered owners of a residential property in
Green Heights Subdivision, Marikina City. In 1989, spouses
built their house thereon and enclosed it with concrete fence
and steel gate.
1999, James Perez as Chief Demolition Officer sent a letter to
the spouses ordering them to remove the fence encroaching
the public drainage. As response, Madrona sent a response
letter to Perez condemning the order of demolition with the
following contention: (1) contained an accusation libellous in
nature as it is condemning him and his property without due
process; (2) has no basis and authority since there is no court
order authorizing him to demolish their structure; (3) cited

legal bases which do not expressly give petitioner authority to

demolish; and (4) contained a false accusation since their
fence did not in fact extend to the sidewalk.
Respondents likewise sought the issuance of TRO to enjoin
petitioner and all persons acting under him doing any act of
demolition on the property. Petitioner filed a motion to lift the
order of default, but the RTC denied the motion. Perez filed a
petition for certiorari before CA assailing the default order, CA
dismissed the petition for certiorari for lack of merit.
The RTC held that respondents, being lawful owners of the
subject property, are entitled to the peaceful and open
possession of every inch of their property and petitioners
threat to demolish the concrete fence around their property is
tantamount to a violation of their rights as property owners
who are entitled to protection under the Constitution and
laws. The RTC also ruled that there is no showing that
respondents fence is a nuisance per se and presents an
immediate danger to the communitys welfare, nor is there
basis for petitioners claim that the fence has encroached on
the sidewalk as to justify its summary demolition.
Issues: (1) Did the trial court err in reinstating the complaint of
respondents? (2) Are the requisites for the issuance of a writ
of injunction present? and (3) Is petitioner liable to pay
attorneys fees and costs of suit?
(1) For injunction to issue, two requisites must concur: first,
there must be a right to be protected and second, the acts
against which the injunction is to be directed are violative of
said right. Here, the two requisites are clearly present: there is
a right to be protected, that is, respondents right over their
concrete fence which cannot be removed without due process;
and the act, the summary demolition of the concrete fence,
against which the injunction is directed, would violate said
right.
(2) Respondents fence is not a nuisance per se. By its nature,
it is not injurious to the health or comfort of the community. It
was built primarily to secure the property of respondents and
prevent intruders from entering it. And as correctly pointed
out by respondents, the sidewalk still exists. If petitioner
believes that respondents fence indeed encroaches on the
sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance
per accidens, its summary abatement without judicial
intervention is unwarranted.
(3) Petitioner argues that he was just performing his duties
and as public officer, he is entitled to the presumption of
regularity in the performance of his official functions. Unless
there is clear proof that he acted beyond his authority or in
evident malice or bad faith, he contends that he cannot be
held liable for attorneys fees and costs of suit. As
respondents were forced to file a case against petitioner to
enjoin the impending demolition of their property, the award
of attorneys fees and costs of suit is justified. Clearly,
respondents wanted to settle the problem on their alleged
encroachment without resorting to court processes when they
replied by letter after receiving petitioners first notice.

Aquino v Municipality of Malay, Aklan

FACTS:
Boracay Island West Cove Management Philippines, Inc.
applied for a building permit covering the construction of a
three-storey hotel over a parcel of land in Malay, Aklan, which
is covered by a Forest Land Use Agreement for Tourism
Purposes (FLAgT) issued by the Department of Environment
and Natural Resources (DENR). The Municipal Zoning
Administrator denied petitioners application on the ground

that the proposed construction site was within the no build

zone demarcated in Municipal Ordinance 2000-131.
Petitioner appealed the denial action to the Office of the
Mayor but despite follow up, no action was ever taken by the
respondent mayor.
A Cease and Desist Order was issued by the municipal
government, enjoining the expansion of the resort, and on
June 7, 2011, the Office of the Mayor of Malay, Aklan issued
the assailed EO 10, ordering the closure and demolition of
Boracay West Coves hotel.
EO 10 was partially implemented on June 10, 2011.
Thereafter, two more instances followed wherein respondents
demolished the improvements introduced by Boracay West
Cove.
Petitioner filed a Petition for Certiorari with prayer for
injunctive relief with the CA Alleging that the order was issued
and executed with grave abuse of discretion

Art. 708. The Registry of Property has for its object the
inscription or annotation of acts and contracts relating
to the ownership and other rights over immovable
property.
Art. 709. The titles of ownership, or of other rights
over immovable property, which are not duly inscribed
or annotated in the Registry of Property shall not
prejudice third persons.
Art. 710. The books in the Registry of Property shall be
public for those who have a known interest in
ascertaining the status of the immovables or real
rights annotated or inscribed therein.
Art. 711. For determining what titles are subject to
inscription or annotation, as well as the form, effects,
and cancellation of inscriptions and annotations, the
manner of keeping the books in the Registry, and the
value of the entries contained in said books, the
provisions of the Mortgage Law, the Land Registration
Act, and other special laws shall govern.

Contentions of West Cove:

1) The hotel cannot summarily be abated because it is not a
nuisance per se, given the hundred million peso-worth of
capital infused in the venture.
2) Municipality of Malay, Aklan should have first secured a
court order before proceeding with the demolition.
Contention of the Mayor: The demolition needed no court
order because the municipal mayor has the express power
under the Local Government Code (LGC) to order the removal
of illegally constructed buildings
The CA dismissed the petition solely on procedural ground,
i.e., the special writ of certiorari can only be directed against a
tribunal, board, or officer exercising judicial or quasi-judicial
functions and since the issuance of EO 10 was done in the
exercise of executive functions, and not of judicial or quasijudicial functions, certiorari will not lie.
ISSUE:
Whether the judicial proceedings should first be conducted
before the LGU can order the closure and demolition of the
property in question.
HELD:
The Court ruled that the property involved cannot be
classified as a nuisance per se which can therefore be
summarily abated. Here, it is merely the hotels particular
incident, its location and not its inherent qualities that
rendered it a nuisance. Otherwise stated, had it not been
constructed in the no build zone, Boracay West Cove could
have secured the necessary permits without issue. As such,
even if the hotel is not a nuisance per se, it is still a nuisance
per accidens
Generally, LGUs have no power to declare a particular thing as
a nuisance unless such a thing is a nuisance per se. Despite
the hotels classification as a nuisance per accidens, however,
the LGU may nevertheless properly order the hotels
demolition. This is because, in the exercise of police power
and the general welfare clause, property rights of individuals
may be subjected to restraints and burdens in order to fulfill
the objectives of the government. Moreover, the Local
Government Code authorizes city and municipal governments,
acting through their local chief executives, to issue demolition
orders. The office of the mayor has quasi-judicial powers to
order the closing and demolition of establishments.

REGISTRY OF PROPERTY & MODES OF ACQUIRING

OWNERSHIP
ARTICLE 712. Ownership is acquired by occupation and
by intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by testate and intestate
succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.
1)

Concept of Mode and Title

Mode of acquiring ownership and other real rights is
the specific cause which produces them as a result of
the co-existence of special status of things, capacity
and intention of person and fulfillment of the
requisites of law.

Ownership, under the Civil Code, is acquired through any of

these modes:
1) Occupation;
2)
intellectual creation;
3) law;
4) donation;
5) succession;
6) tradition; and
7) prescription.
Other real rights, on the other hand, are acquired through any
of the following modes:
(1) law;
(2) donation;
(3) succession;
(4) tradition and
(5) prescription.
-

Article 712 distinguishes between modes which are

merely for acquisition (e.g., occupation, intellectual
creation and prescription) and modes which are for
both acquisition and transmission of ownership (e.g.,
law, donation, succession and tradition).

Modes of acquiring ownership are generally classified

into two (2) classes, the original mode and the
derivative mode.

Original mode has no auctor or a person who has

ownership and who transmits the same to a
successor. Examples of original modes are
occupation, law, intellectual creation and acquisitive
prescription.

Derivative mode, on the other hand, is an

acquisition which depends on the existence of the
right of a certain other person, called the auctor.

Examples of derivative
succession and donation.

various modes of losing ownership and other real

rights:
1. voluntary depends upon the will of the
owner

abandonment

alienation
2.

modes

are

tradition,

Involuntary- independent of the will of the

owner.

Destruction of the thing, which may

either be physical or juridical as
when the thing goes out of
commerce;

revocatory acts, which may include

the nullity, rescission, revocation or
resolution of that which gave rise
to the acquisition;

extinguishment by legal precept

and in virtue of certain acts, by the
owner or third persons (e.g.,
accession
and
acquisitive
prescription);

extinguishment by judicial decree,

such as confirmation of a judicial
sale as a result of levy on
execution; and

extinguishment by act of the State,

such as confiscation of the effects
and instruments of a crime and
expropriation for public use

different owner shall belong to the latter, provided

they have not been enticed by some artifice or fraud.
Art. 718. He who by chance discovers hidden treasure
in anothers property shall have the right granted him
in Article 438 of this Code.
Art. 719. Whoever finds a movable, which is not
treasure, must return it to its previous possessor. If
the latter is unknown, the finder shall immediately
deposit it with the mayor of the city or municipality
where the finding has taken place.
The finding shall be publicly announced by the mayor
for two consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or
without expenses which considerably diminish its
value, it shall be sold at public auction eight days after
the publication.
Six months from the publication having elapsed
without the owner having appeared, the thing found,
or its value, shall be awarded to the finder. The finder
and the owner shall be obliged, as the case may be, to
reimburse the expenses.
Art. 720. If the owner should appear in time, he shall
be obliged to pay, as a reward to the finder, one-tenth
of the sum or of the price of the thing found.
Occupation
-

Abandonment- a unilateral act of the holder of the right which

does not, therefore, require its acceptance; only that the one
renouncing it must have the legal capacity to do so, coupled
with the intention to renounce the right.
Alienation - the voluntary transfer of the right to another
person, which may either be by acts mortis causa or
by acts inter vivos. It may either be onerous or gratuitous.
Art. 713. Things appropriable by nature which are
without an owner, such as animals that are the object
of hunting and fishing, hidden treasure and abandoned
movables, are acquired by occupation.
Art. 714. The ownership of a piece of land cannot be
acquired by occupation.
Art. 715. The right to hunt and to fish is regulated by
special laws.

Art. 716. The owner of a swarm of bees shall have a

right to pursue them to anothers land, indemnifying
the possessor of the latter for the damage. If the
owner has not pursued the swarm, or ceases to do so
within two consecutive days, the possessor of the land
may occupy or retain the same. The owner of
domesticated animals may also claim them within
twenty days to be counted from their occupation by
another person.

This period having expired, they shall pertain to him

who has caught and kept them.
Art. 717. Pigeons and fish which from their respective
breeding places pass to another pertaining to a

Seizure or apprehension of things corporeal which

have no owner with the intention of acquiring them
and according to the rules laid down by law.
Consists in taking possession of a thing over which
no one has a proprietary right.
The rule of the law is res nullius cedit occupanti.

Ways by which occupation may be effected (

4 requisites):
1) Thing must be a res nullius that is, a
thing which either never had an owner,
or which, by virtue of a previous
abandonment (dereliction), has not an
owner at the time of its occupation.
2) It must be appropriable by nature or
one that can be seized or apprehended.
In other words, it must be corporeal.
3) It must be brought into the actual
possession or control of the one
professing to acquire it.
4) The person must acquire it with the
intention of acquiring ownership. He
must therefore have the necessary
capacity to consent.
all animals which are still in their natural state of
freedom become the property of the captor by virtue
of occupation
Applies to hunting and fishing. And this rule applies
even though the capture be made on anothers land,
without prejudice, however, to the liability of the
captor for any damage resulting from his trespass.
The rule on acquisition of ownership by virtue of
occupation stated in Article 713 of the New Civil Code
does not apply to animals which are classified as
rare, threatened or endangered species.
Special rule in case of acquisition of ownership of
swarm of bees through occupation. Owner of a
swarm of bees has a right to purse them to anothers
land, with the obligation of indemnifying the
possessor of the latter for the damage.
However, owner of the swarm of bees should not
enter an enclosed estate. It is necessary to obtain

the permission of the owner of the estate before

entering
In case the owner of the swarm of bees fails to purse
the swarm, or if he initially makes a pursuit but he
ceases to do so within two (2) consecutive days

Law considers him as to have abandoned

ownership of the swarm of bees in which
case, the swarm may now be acquired by
the owner of the estate by way of
occupation.

If the owner of the estate fails to seize or

capture the swarm of bees, the same shall
remain to be res nullius.
Wild animals are those which are found in their state
of natural freedom may be acquired by occupation.
Domesticated or tamed animals animals which
were formerly wild but which have been subdued and
retained the habit of returning to the premises of the
possessor.
Once they lose such habit, they are considered wild
animals again
Ownership over these animals is not affected by the
simple fact that they are no longer under the control
of the present possessor-owner.
Possessor-owner of domesticated animals has a
period of twenty (20) days counted from their
occupation by another person within which to reclaim
them; otherwise, captor shall acquire ownership of
the animals by occupation.
domestic animals are considered as movable
property
Ownership thereof may not be acquired by
occupation unless these animals are abandoned by
their owner.
The ownership over them can be acquired, however,
by another person through acquisitive prescription
the period of prescription being four years if the
possessor is in good faith or eight years, in any
event.
A treasure, in the legal sense, is any hidden and
unknown deposit of money, jewelry, or other precious
objects, the lawful ownership of which does not
appear
treasure belongs wholly to the finder if found upon
owns ground;
If found or discovered by chance in anothers
property and the finder not being a trespasser, the
treasure is equally divided between the finder and
the owner of the ground.
A different rule applies, however, if the finding of the
treasure is pursuant to deliberate treasure-hunting
activity
Things the ownership of which has been abandoned
are capable of occupation. But the abandonment
must be absolute and must further comply with the
requirements
The effect of such abandonment is to make the thing
a res nullius the moment the abandonment is
complete. Anyone may therefore acquire ownership
of the same by occupation.
Abandoned v. Mislaid or lost property

Abandoned: necessary that hope of

recovery or recapture is gone and intent to
recover is lost.

Lost or mislaid: hope of recovery or

recapture and intent to recover are still
alive. Hence, its ownership is not lost yet by
its owner. So long as the property is not
under the control of another person, the
present owner does not lose both the
ownership and possession of the same.

In lost property, it is only the possession

which is considered lost by the owner (res

alicujus) hence, ownership may not be

acquired by the finder through occupation.
What finder should go through in case of
lost property:
o
Bound to return it to its previous
owner, if known, or to immediately
deposit the same with the mayor of
the city or municipality where the
finding has taken place, if the
owner is unknown.
o
If the finder fails to comply with
these procedural requirements and
appropriates
for
himself
the
movable property he found, he
shall be liable for the crime of theft.
o
If the lost property is turned over to
the mayor, the latter is then
required
to
make
a
public
announcement of such finding for
two consecutive weeks in a manner
he deems best.
o
If after six months, the owner does
not appear, the thing found, or its
value, shall be awarded to the
finder, with the obligation to
reimburse the expenses incurred in
the publication

Art. 721. By intellectual creation, the following persons

acquire ownership:
(1) The author with regard to his literary, dramatic,
historical, legal, philosophical, scientific or other work;
(2) The composer, as to his musical composition;
(3) The painter, sculptor, or other artist, with respect
to the product of his art;
(4) The scientist or technologist or any other person
with regard to his discovery or invention. (n)
ART. 722. The author and the composer, mentioned in
Nos. 1 and 2 of the preceding article, shall have the
ownership of their creations even before the
publication of the same. Once their works are
published, their rights are governed by the Copyright
laws.
The painter, sculptor or other artist shall have
dominion over the product of his art even before it is
copyrighted.
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
ART. 723. Letters and other private communications in
writing are owned by the person to whom they are
addressed and delivered, but they cannot be published
or disseminated without the consent of the writer or
his heirs. However, the court may authorize their
publication or dissemination if the public good or the
interest of justice so requires.
ART. 724. Special laws govern copyright and patent.
Intellectual Creation
-

Intellectual property refers to creations of the mind:

inventions, literary and artistic works, and symbols,
names, images, and designs used in commerce.
Intellectual Property Code of the Philippines, defines
the scope of the term intellectual property rights,
as follows:

a) Copyright and related rights;

b) Trademarks and service marks;
c) Geographic indications;
d) Industrial designs;
e) Patents;
f) Layout-designs (topographies) of
circuits; and
g) Protection of undisclosed information
-

Ownership is acquired from the moment of their

creation2 even before the same are published,
copyrighted or patented.
Creator being the owner has the right to share it with
others. He also enjoys the exclusive right to its
publication but this exclusive right is limited only
to the first publication.
Unless placed under the protection of the Copyright
Law, once published, the work is dedicated to the
public, and the author loses the exclusive right to
control subsequent publications by others.
With respect to the ownership of letters and other
private communications in writing, a distinction must
be made between the material or physical object (the
letter itself) and the ideas or thoughts contained in
the letter (its contents). former is owned by the
person to whom it is addressed and delivered (the
recipient) but the latter is owned by the author or
writer (the sender)
While the recipient may have the control and
possession of the physical letter itself by virtue of his
ownership of the same, the authors consent is
required in cases of publication or dissemination of
the letter.
If the authors consent is not obtained in the
publication and dissemination of the contents of the
letter, the latter may seek injunctive relief from the
courts, in addition to his right to recover damages.

Art. 624. The existence of an apparent sign of

easement between two estates, established or maintained by
the owner of both, shall be considered, should either of them
be alienated, as a title in order that the easement may
continue actively and passively, unless, at the time the
ownership of the two estates is divided, the contrary should
be provided in the title of conveyance of either of them, or the
sign aforesaid should be removed before the execution of the
deed. This provision shall also apply in case of the division of a
thing owned in common by two or more persons. (541a)
Art. 681. Fruits naturally falling upon adjacent land belong to
the owner of said land. (n)
Art. 1434. When a person who is not the owner of a thing
sells or alienates and delivers it, and later the seller or grantor
acquires title thereto, such title passes by operation of law to
the buyer or grantee.
Tradition or Delivery

A mode is the legal means by which dominion or

ownership is created, transferred or destroyed, but
title is only the legal basis by which to affect
dominion or ownership.

Mode and title may be distinguished, as follows:

A mode directly and immediately produces a real

right; whereas, title merely serves as a means and a
pretext to that acquisition.

Mode is the cause, while title is the means.

Mode creates a real right, while title creates merely a

personal right.

Ownership is transferred, not by contract alone, but

by tradition or delivery.

The delivery of a thing, therefore, constitutes a

necessary and indispensable requisite for the
purpose of acquiring the ownership of the same by
virtue of a contract.

Sale is not a mode, but merely a title. Sale by itself

does not transfer or affect ownership; the most that
sale does is to create the obligation to transfer
ownership. It is tradition or delivery, as a
consequence of sale, that actually transfers
ownership.

Delivery as a mode of acquiring ownership:

Rights, refers to the transfer of possession
accompanied by an intention to transfer ownership or
other real rights.
Requisites:

(1) Pre-existence of the right to be transmitted in the

estate of the grantor, the same being a derivative mode
of acquiring ownership;
(2) Just cause or title (causa
transmission, such as sale;

traditionis)

for

the

(3) Intention on the part of the grantor to grant and on

the part of the grantee to acquire;

Instances of acquisition by law

Refers to those special legal provisions which directly

vest ownership or real rights in favor of certain
persons, independently of the other modes of
acquiring and transmitting ownership or other real
rights.

a)

A mode requires not only the intention to acquire but

also either a right previously vested over the thing on
the part of the person who makes the transmission or
the special condition or state of the thing to be
transferred as the fact that they are res nullius;
whereas, title requires mere intention.

integrated

Law as a mode
-

(4) Capacity to transmit (on the part of the grantor) and

capacity to acquire (on the part of the grantee); and
(5) An act which gives it outward form, physically,
symbolically or legally.
Tradition is classified into:
(1)
(2)
(3)
(4)

Real tradition;
Constructive or feigned tradition;
Quasi-tradition; and
Tradition by operation of law

Real tradition (or physical or actual delivery)

takes place when the thing is placed in the control

and possession of the grantee

if movable, is when the thing is transferred from

hand to hand

if immovable, by certain material and possessory

acts by the grantee in the presence and with the
consent of the grantor, such as gathering fruits or
entering upon the property which are generally
called taking possession.
In the Law on Sales, the thing sold is understood as delivered,
when it is placed in the control and possession of the vendee.
Constructive Tradition

Delivery represented by other signs or acts indicative

thereof.

Constructive delivery may take place through:

1) traditio simbolica (symbolical tradition) - transfer of
ownership is effected by the delivery of symbols or
things which represent those to be delivered.
2)

traditio longa manu - transfer of ownership is

effected by the grantor by simply pointing out to the
grantee the things which are being transferred and
which at the time must be within their sight.

3)

traditio brevi manu - grantee has already acquired

actual control or possession of the thing, as when the
thing is leased to him. In this case, a mere
declaration on the part of the grantor that the
grantee shall now hold the thing which is already in
his control and possession, as owner, operates as a
form of delivery

4)

traditio constitutum possessorium delivery is

effected by a mere declaration on the part of the
transferor that he will hold the thing for the
transferee; may take place when the owner of the
thing alienates it but continues possessing it under
another contract or capacity, as lessee for example.

5)

Execution of public instrument - equivalent to the

delivery of the thing which is the object of the
contract. Execution of a public instrument gives rise
only to a prima facie presumption of delivery. Such
presumption is destroyed when the instrument itself
expresses or implies that delivery was not intended;
or when by other means it is shown that such
delivery was not effected, because a third person
was actually in possession of the thing.

Equatorial Realty Development, Inc. v. Mayfair Theater, Inc.

Carmelo & Bauermann, Inc. (Carmelo) used to own a parcel
of land with improvements. It entered into a contract of lease
with Mayfair Theater, Inc. (Mayfair). The lease contained a
right of first refusal. Within the term of the lease, Carmelo sold
the property to Equatorial Realty Development, Inc.
(Equatorial), in violation of Mayfairs right of refusal. Mayfair
filed a complaint for rescission of the contract of sale between
Carmelo and Equatorial on the ground that its right of first
refusal was violated. Mayfair obtained a favorable judgment
and the decree of rescission became final. When Mayfair
tendered the payment of the purchase price with Carmelo,
Equatorial, on the other hand, demanded rentals from Mayfair
alleging itself as the owner by reason of the contract of sale
from the time of the execution of the contract of sale up to
finality of the decision in the case fi led by Mayfair. On this
issue, the Supreme Court held that Equatorial Realty did not
become the owner of the contested property because there
was no tradition or delivery of the property sold to Equatorial.
The Court explained
By a contract of sale, one of the contracting parties obligates
himself to transfer ownership of and to deliver a determinate
thing and the other to pay therefor a price certain in money or
its equivalent.
Ownership of the thing sold is a real right, which the buyer
acquires only upon delivery of the thing to him in any of the
ways specified in Articles 1497 to 1501, or in any other
manner signifying an agreement that the possession is
transferred from the vendor to the vendee. This right is
transferred, not by contract alone, but by tradition or delivery.
Non nudis pactis sed traditione dominia rerum transferantur.
And there is said to be delivery if and when the thing sold is
placed in the control and possession of the vendee. Thus, it
has been held that while the execution of a public instrument
of sale is recognized by law as equivalent to the delivery of
the thing sold, such constructive or symbolic delivery, being

merely presumptive, is deemed negated by the failure of the

vendee to take actual possession of the land sold.
Delivery has been described as a composite act, a thing in
which both parties must join and the minds of both parties
concur. It is an act by which one party parts with the title to
and the possession of the property, and the other acquires the
right to and the possession of the same. In its natural sense,
delivery means something in addition to the delivery of
property or title; it means transfer of possession. In the Law
on Sales, delivery may be either actual or constructive, but
both forms of delivery contemplate the absolute giving up of
the control and custody of the property on the part of the
vendor, and the assumption of the same by the vendee.
xxx xxx xxx
Let us now apply the foregoing discussion to the present
issue. From the peculiar facts of this case, it is clear that
petitioner never took actual control and possession of the
property sold, in view of respondents timely objection to the
sale and the continued actual possession of the property. The
objection took the form of a court action impugning the sale
which, as we know, was rescinded by a judgment rendered by
this Court in the mother case. It has been held that the
execution of a contract of sale as a form of constructive
delivery is a legal fiction. It holds true only when there is no
impediment that may prevent the passing of the property
from the hands of the vendor into those of the vendee. When
there is such impediment, fiction yields to reality the
delivery has not been effected. Hence, respondents
opposition to the transfer of the property by way of sale to
Equatorial was a legally sufficient impediment that effectively
prevented the passing of the property into the latters hands.
This was the same impediment contemplated in Vda. De
Sarmiento v. Lesaca, in which the Court held as follows:
The question that now arises is: Is there any stipulation in the
sale in question from which we can infer that the vendor did
not intend to deliver outright the possession of the lands to
the vendee?
We find none. On the contrary, it can be clearly seen therein
that the vendor intended to place the vendee in actual
possession of the lands immediately as can be inferred from
the stipulation that the vendee takes actual possession
thereof x x x with full rights to dispose, enjoy and make use
thereof in such manner and form as would be most
advantageous to herself. The possession referred to in the
contract evidently refers to actual possession and not merely
symbolical inferable from the mere execution of the
document.
Has the vendor complied with this express commitment? She
did not. As provided in Article 1462, the thing sold shall be
deemed delivered when the vendee is placed in the control
and possession thereof, which situation does not here obtain
because from the execution of the sale up to the present the
vendee was never able to take possession of the lands due to
the insistent refusal of Martin Deloso to surrender them
claiming ownership thereof. And although it is postulated in
the same article that the execution of a public document is
equivalent to delivery, this legal fiction only holds true when
there is no impediment that may prevent the passing of the
property from the hands of the vendor into those of the
vendee. x x x.

Cebu Winland Development Corp. vs Ong Siao

FACTS: Cebu Winland Development Corporation is the owner
and developer of a condominium project. Ong Siao Hua is a
buyer of two condominium units and four parking slots from
petitioner. While the Cebu Winland Tower Condominium was
under construction, petitioner offered to sell to respondent
condominium units at promotional prices. As an added
incentive, petitioner offered a 3% discount provided 30% of
the purchase price is paid as down payment and the balance
paid in 24 equal monthly installments. Ong accepted the offer
of petitioner and bought two condominium units designated

as Unit Nos. 2405 and 2406, as well as four parking slots

designated as slots 91, 99, 101 and 103 (subject
properties).The area per condominium unit as indicated in
petitioner's price list is 155 square meters and the price per
square meter is P22, 378.95. The price for the parking slot is
P240, 000 each. Respondent paid and issued 24 postdated
checks for the balance of the purchase price. On October 10,
1996, possession of the subject properties was turned over to
respondent. Upon examination of the deed of absolute sale,
Ong found that the stated floor area is only 127 square meters
contrary to the area indicated in the price list which was 155
square meters. He demanded from CWD to refund the amount
representing excess payments for the difference in the area.
Latter refused to refund.
ISSUES: 1. W/N Ong Siao Huas action has prescribed pursuant
to Article 1543, in relation to Articles 1539 and 1542.
HELD: 1. NO, the action has not prescribed. Under the Civil
Code, the vendor is bound to transfer the ownership of and
deliver the thing which is the object of the sale. Under the
Civil
Code,
ownership
does
not
pass
by
mere
stipulation but only by delivery. The delivery under any of
the forms provided by Articles 1497 to 1505 of the Civil Code
signifies that the transmission of ownership from vendor to
vendee has taken place. Article 1497 contemplates what is
known as real or actual delivery, when the thing sold is placed
in the control and possession of the vendee. Article 1498, on
the one hand, refers to symbolic delivery by the execution of a
public instrument. It appears that respondent was already
placed in possession of the subject properties. However,
the deeds of absolute sale were still to be executed by the
parties upon payment of the last installment. This shows that
ownership of the said properties was withheld by petitioner.
Following case law, it is evident that the parties did not intend
to immediately transfer ownership of the subject properties
until full payment and the execution of the deeds of absolute
sale. Consequently, there is no "delivery" to speak of in this
case since what was transferred was possession only and not
ownership of the subject properties. The Court ruled that the
transfer of possession of the subject properties on October
10,1996 to respondent cannot be considered as "delivery"
within the purview of Article 1543 of the Civil Code. It follows
that since there has been no transfer of ownership of the
subject properties since the deeds of absolute sale have not
yet been executed by the parties, the action filed by
respondent has not prescribed.

For purposes of prescription, there is just title when

the adverse claimant came into possession of the
property through one of the modes recognized by law
for the acquisition of ownership or other real rights,
but the grantor was not the owner or could not
transmit any right.

Just title must be proved for purposes of prescription;

it is never presumed.

Period of prescription
Movable property, the period of ordinary prescription
is four (4) years, while the period of extraordinary
prescription is eight (8) years.
-

For real property, the period of ordinary prescription

is ten (10) years, while the period of extraordinary
prescription is thirty (30) years.

Computation of time necessary for prescription the

following rules:
(1) The present possessor may complete the period
necessary for prescription by tacking his
possession to that of his grantor or predecessorin-interest;
(2) It is presumed that the present possessor who
was also the possessor at a previous time, has
continued to be in possession during the
intervening time, unless there is proof to the
contrary;
(3)

Prescription does not apply in the following cases:

1) The rule is well-settled that prescription does not
run against registered land. A title, once
registered, cannot be defeated even by adverse,
open and notorious possession.
2)

Does not run against the State. Hence, property

of the State or any of its subdivisions which are
classified as belonging to public dominion shall
not be the object of prescription. Neither may
acquisitive prescription be invoked against the
patrimonial property of the State.

3)

The possession of a trustee is not adverse. Not

being adverse, he does not acquire by
prescription the property held in trust.

X
-

Quasi-tradition is used to indicate the transfer of

rights or incorporeal things through the exercise of
the rights by the grantee with the acquiescence of
the grantor.
Tradition by operation of law, on comprises all those
cases not covered by the previous modes of delivery
and by which tradition is effected solely by virtue of a
legal precept.

Acquisitive prescription may bar the action of the

beneficiary against the trustee in an express
trust for the recovery of the property held in
trust where:

Prescription

a mode of acquiring (or losing) ownership and other

real rights through the lapse of time in the manner
and under conditions laid down by law, namely, that
the possession should be in the concept of an owner,
public, peaceful, uninterrupted and adverse.

Acquisitive prescription of ownership and other real

rights may be ordinary or extraordinary.

Ordinary acquisitive prescription requires possession

of things in good faith and with just title for the time
fixed by law; without good faith and just title,
acquisitive prescription can only be extraordinary in
character.

The first day shall be excluded and the last day

included.

a)
b)
c)

The trustee has performed unequivocal acts

of repudiation amounting to an ouster of the
cestui que trust;
such positive acts of repudiation have been
made known to the cestui que trust;
the evidence thereon is clear and
conclusive.

4)

No prescription shall lie in favor of a co-owner or

co-heirs as long as he expressly or impliedly
recognizes the co-ownership.

5)

Possession must be in a concept of an owner.

Thus:

6)

7)

8)

9)

GR: mere possession with a juridical title,

such as by a usufructuary, a trustee, a
lessee, an agent or a pledgee, not being in
the concept of an owner, cannot ripen into
ownership by acquisitive prescription

XPN: The juridical relation is first expressly

repudiated and such repudiation has been
communicated to the other party.

Acts of possessory due to license or by mere

tolerance of the owner would likewise be
inadequate. No matter how long, do these will
not start the running of prescription.
Possession
obtained
through
force
or
intimidation does not also ripen into ownership
because the law on acquisitive prescription
requires that the possession be peaceful

Prescription does not run between:

Husband and wife, even though there

be a separation of property agreed
upon in the marriage settlements or by
judicial decree.
Parents and children, during the
minority or insanity of the latter, and
between guardian and ward during the
continuance of the guardianship.

Capacity to Acquire Ownership By Acquisitive Prescription

As a rule, persons who are capable of acquiring
property or rights by other legal modes may acquire
the same by means of prescription. As a
consequence if just title is required (as the case of
ordinary acquisitive prescription), the capacity to
acquire property by prescription shall be the same
capacity required for the particular title in question.
Hence, for purposes of ordinary prescription where
just title is required, the capacity to acquire property
by prescription shall be the same capacity required
for the particular title in question
For purposes of extraordinary prescription where
just title is not required, the capacity for possession
is required.
Art. 725. Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right in
favor of another, who accepts it.

DONATION
Definition, concept of, elements

Possessory
acts
which
are
executed
clandestinely and without the knowledge of the
possessor does not likewise ripen into ownership
because the law on acquisitive prescription
requires that the possession be public.

An act of liberality whereby a person disposes

gratuitously of a thing or right in favor of another,
who accepts it.
essential elements of donation are as follows:
a) the essential reduction of the patrimony of the
donor;
b) the increase in the patrimony of the done
c) The intent to do an act of liberality or animus
donandi.
liberality should be strictly construed
As such donation may be defined as the act of
liberality by which a person impoverishes himself by

a fraction of his patrimony in favor of another person

who is thereby enriched.
Donative intent or animus donandi is presumed
present.
Intent to donate must be effectively carried out.
Hence, a mere declaration of an intention or desire to
donate is not a donation.
Donation is a contract. The Civil Code defines
contract as a meeting of the minds between two
persons whereby one binds himself, with respect to
the other to give something or to render some
service.
Like any contract, donation also requires the
concurrence of the reciprocal consent of the parties
and it does not become perfect until it is accepted by
the donee
As a mode of acquiring ownership, donation results in
an effective transfer of title over the property from
the donor to the donee and the donation is perfected
from the moment the donor knows of the acceptance
by the donee. And once a donation is accepted, the
donee becomes the absolute owner of the property
donated

Art. 726. When a person gives to another a thing or

right on account of the latters merits or of the
services rendered by him to the donor, provided they
do not constitute a demandable debt, or when the gift
imposes upon the donee a burden which is less than
the value of the thing given there is also a donation.
Art. 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
imposed.
Art. 728. Donations which are to take effect upon the
death of the donor partake of the nature of
testamentary provisions, and shall be governed by the
rules established in the Title on Succession.
Art. 729. When the donor intends that the donation
shall take effect during the lifetime of the donor,
though the property shall not be delivered till after the
donors death, this shall be a donation inter vivos. The
fruits of the property from the time of the acceptance
of the donation, shall pertain to the donee, unless the
donor provides otherwise.
Art. 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond
the natural expectation of life of the donor, does not
destroy the nature of the act as a donation inter vivos
unless a contrary intention appears.
Art. 731. When a person donates something, subject to
the resolutory condition of the donors survival, there
is a donation inter vivos.
Art. 732. Donations which are to take effect inter vivos
shall be governed by the general provisions on
contracts and obligations in all that is not determined
in this Title.
Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts, and remuneratory
donations by the provisions of the present Title as
regards that portion which exceeds the value of the
burden imposed.
Classification of donations

Simple - is one where the underlying cause is plain

gratuity or pure liberality (no strings attached). This
is donation in its truest form.

IGNAO: MOTION TO DISMISS

Remuneratory or compensatory
o
One made for the purpose of rewarding the
donee for past services, which services do
not amount to a demandable debt.
o
Made for the purpose of rewarding the
donee for past services, which services do
not amount to a demandable debt.
o
Necessary that the services to be repaid be
not demandable obligations, otherwise, the
so-called donation is in reality payment.
o
likewise necessary that the services must
have already been performed for if the
services are still to be performed in the
future, the donation is onerous.
Conditional or modal
o
Is one where the donation is made in
consideration of future services or where the
donor imposes certain conditions, limitations
or charges upon the donee, the value of
which is inferior to that of the donation
given.
o
governed by the law on contracts up to
extent of the burden and by the law on
donations under the present Title as regards
that portion which exceeds the value of the
burden imposed
Onerous
o
Is the kind of donation made for a valuable
consideration, the cost of which is equal to
or more than the thing donated.
o
The validity of and the rights and obligations
of the parties is governed not by the law on
donations but by the law on contracts

- Simple and remuneratory donations are governed primarily,

by Title III of Book III (the law on donations) and, suppletorily,
by the law on obligations and contracts

if illegal or impossible conditions are imposed in

simple or remuneratory donations, then the donation
is valid because the illegal or impossible conditions
are simply considered as not imposed and will, thus,
be disregarded
Donations with an onerous cause, on the other hand,
are governed not by the law on donations but by the
rules on contracts
if an impossible or illegal condition is imposed in such
kind of donation, the obligation thus created shall be
annulled
Roman Catholic v CA

FACTS:
RIETA FILED NULLIFICATION OF DEED OF DONATION,
RECISSION OF CONTRACT AND RECONVEYANCE OF REAL
PROPERTY WITH DAMAGES against Ignao and ROMAN
CATHOLIC BISHOP OF IMUS, CAVITE/MANILA.
Executed deed of donation covering a parcel of land
i.
CONDITION: Donee shall not dispose or sell the property
within a period of one hundred (100) years from the execution
of the deed of donation, otherwise would render ipso facto null
and void; deed and property would revert back to donors.

Bishop of Imus executed a deed of absolute sale to Ignao for

P114,000

No legal capacity to sue

No cause of action
Prescribed (added by Roman Catholic Bishop of Imus)
Not a real party in interest (Bishop of Manila)
Was ruled that the complaint for cause of action has already
prescribed
APPEALED TO CA:
WON the action for rescission of contracts (deed of
donation and deed of sale) has prescribed
WON the dismissal of the action for rescission of contracts
(deed of donation and deed of sale) on the ground of
prescription carries with it the dismissal of the main
action for reconveyance.
CA held that action not prescribed.
ISSUE:
Has the cause of action already prescribed?
Held: NO.
ARTICLE 764: "(t)his action shall prescribe after 4 years
from the non-compliance with the condition, may be
transmitted to the heirs of the donor, and may be
exercised against the donee's heirs.
Is there a cause of action? UNJUSTIFIED CAUSE OF
ACTION
HELD:
Judgment SET ASIDE and another judgment DISMISSED.
1.
DEED HAS AUTOMATIC REVERSION EXPRESSED,
JUDICIAL DECLARATION NOT NECESSARY HENCE.
a.
Judicial action for rescission of a contract is not
necessary where the contract provides that it may be
revoked and cancelled for violation of any of its terms and
conditions.
b. Judicial action is proper only when there is absence of
a special provision granting the power of cancellation.
2. UNDUE RESTRICTION ON RIGHTS OF OWNERSHIP,
CONTRARY TO PUBLIC POLICY.
a.
DONATION: effective transfer of title over the
property from the donor to the donee. Once a donation is
accepted, the donee becomes the absolute owner of the
property donated. Although the donor may impose
certain conditions in the deed of donation, the same must
not be contrary to law, morals, good customs, public
order and public policy.
b. Condition imposed must not be perpetual or for an
unreasonable period of time.
Inter Vivos and Mortis Causa
-

Donations may be classified as to their taking

Mortis causa:

If the donation is made in contemplation of

the donors death, meaning that the full or
naked ownership of the donated properties
will pass to the donee only because of the
donors death, then it is at that time that the
donation takes effect, and it is a donation
mortis causa which should be embodied in a
last will and testament.
According to Manresa, a transfer mortis
causa, which should be embodied in a last
will and testament, since it is in reality, a
legacy.
Time of effectivity (aside from the form)
distinguishes inter vivos from mortis causa.
Effectivity is determined by the time when
the full or naked ownership of the donated
properties is transmitted to the donees.
If it is mortis causa, the donation must be in
the form of a will, with all the formalities for
the validity of wills, otherwise it is void and
cannot transfer ownership.

upon the death of the donor admits that

the donor did not intend to transfer the
ownership of the properties to the donee
during her lifetime. In addition, the deeds
expressly provide that the donation shall be
rescinded in case the donee predecease the
donor, which is one of the decisive
characteristics of a donation mortis causa.

In the following cases, the conveyance was

considered a void mortis causa transfer because it
was not cast in the form of a last will and testament
as required in Article 728 of the Civil Code:
a)

b)

c)

Where it was stated in the deed of donation

that the donor wanted to give the donee
something to take effect after his death
and that this donation shall produce effect
only by and because of the death of the
donor, the property herein donated to pass
title after the donors death. In the Padilla
case, the donation was regarded as mortis
causa although the donated property was
delivered to the donee upon the execution
of the deed and although the donation was
accepted in the same deed.
Where it was provided that the donated
properties would be given to the donees
after the expiration of thirty (30) days from
the donors death, the grant was made in
the future tense, and the word inherit was
used. The Court explained that the verb to
inherit clearly implies the acquisition of
property only from and after the death of
the alleged donors.
Where the alleged donation expressly
reserved the right to dispose of the
properties conveyed at any time before his
death, and limited the donation to
whatever property or properties left
indisposed by (the donor) during (his)
lifetime. The Court explained that the
alleged donor clearly retained his ownership
until his death and the reservation is
tantamount to a reservation of the right to
revoke the donation.

d)

Where the circumstances surrounding the

execution of the deed of donation reveal
that the donation could not have taken
effect before the donors death and the
rights to dispose of the donated properties
and to enjoy the fruits remained with the
donor during her lifetime.

e)

Where it was stated that the donations shall

become effective upon the death of the
donor and that in the event that the
donee should die before the donor, the
donation shall be deemed automatically
rescinded and of no further force and
effect. The phrase to become effective

An essential characteristic of mortis causa is

that the conveyance or alienation should be
(expressly or by necessary implication)
revocable ad nutum, i.e., at the discretion of
the grantor or so-called donor, simply
because the latter has changed his mind.

The distinguishing characteristics of a donation

mortis causa:
1) It conveys no title or ownership to the transferee
before the death of the transferor or what
amounts to the same thing, that the transferor
should retain the ownership (full or naked) and
control of the property while alive;
2) That before his death, the transfer should also
be revocable by the transferor at will, ad nutum;
but revocability may be provided for indirectly by
means of a reserved power in the donor to
dispose of the properties conveyed;
3) That the transfer should be void if the transferor
should survive the transferee.
Inter vivos:

If the donation takes effect during the

donors lifetime or independently of the
donors death, meaning that the full or
naked ownership (nuda proprietas) of the
donated properties passes to the donee
during the donors lifetime, not by reason of
his death but because of the deed of
donation, then the donation is inter vivos.

Did the donor intend to transfer the

ownership of the property donated upon the
execution of the donation? If this is so, then
it is inter vivos;

If the donation is inter vivos, it must be

executed and accepted with the formalities
prescribed by Articles 748 and 749 of the
Civil Code
o
Except for onerous donations cause
contracts will apply.

Donation inter vivos, once accepted,

becomes irrevocable.
We must distinguish between the actual donation
and the execution thereof:

Effectivity during the lifetime of the donor or

at his death is not delivery of the property

Donation already exists PERFECTLY AND

IRREVOCABLY from the moment that the
donor disposes freely of his property and
such disposal is accepted by the donee

Thus, he who makes a donation effective

upon a certain date, even though to take
place at death, disposes of that which he
donated and he cannot afterwards revoke
the donation nor dispose of the said
property in favor of another.

In ascertaining the intention of the donor, all

of the deeds provisions must be read
together.

May likewise be ascertained by the

circumstances attendant upon its execution.

Hence, it is not sufficient that the

instrument of donation states that it is
mortis causa, if it can be gathered from the
body of the instrument that the main

consideration is not death of the donor but

rather services rendered to him by the
donee, or his affection for the latter, and
title is transferred immediately to the
donee, even though the gift is conditioned
to take effect after death of the donor
insofar as possession and enjoyment of the
property is concerned.

It is now a settled rule that the title given to

a deed of donation is not the determinative
factor which makes the donation inter vivos
or mortis causa.

The distinction between a transfer inter

vivos and mortis causa is important as the
validity or revocation of the donation
depends upon its nature
Cases where conveyance was considered a valid
donation inter vivos, hence, essentially irrevocable:
a) When
the
attending
circumstances
demonstrated the intent of the donor to
transfer the ownership over the properties
upon its execution since prior to the
execution of the donation inter vivos, the
donor spouses already executed three
donations mortis causa. Such fact, shows
that the donor spouses were aware of the
difference between donations inter vivos
and mortis causa. In addition, the donor
made reservation of lifetime usufruct and
sufficient properties for their maintenance
which indicated that the donor intended to
transfer the naked ownership over the
properties. Lastly, the fact that the donee
accepted the donation is an indication that
the donation is inter vivos
b)
Where the donation expressly provides that it is
irrevocable although there are provisions in the deed which
state that the same will only take effect upon the death of the
donor and that there is prohibition to alienate, encumber,
dispose, or sell the same.
c) Where the donation expressly declares that
it is irrevocable and the owner makes
reservation for himself, during his lifetime,
of the owners share of the fruits or produce,
the deed is a donation inter vivos although it
provides that the donation shall become
effective after the death of the donor.
d) When the deed of donation provides that
the donor will not dispose or take away the
property donated (thus making the donation
irrevocable), he is in effect making a
donation inter vivos. He parts away with his
naked
title
but
maintains
beneficial
ownership while he lives.
-

In Austria-Magat v. Court of Appeals, while there is a

prohibition to alienate the donated property, the
deed, on the other hand, expressly declares that the
donation is irrevocable. According to the Court in the
Austria-Magat case, the prohibition to alienate does
not go against the irrevocable character of the
donation. Such provision, adds the Court, is only
necessary assurance that during the donors lifetime,
the latter would still enjoy the right of possession
over the property; but, his naked title of ownership
has been passed on to the donees.
But what about a provision empowering or
authorizing the donor to alienate the property
conveyed? What is its effect upon the conveyance?
According to the Court, is characteristic of
conveyances post mortem or mortis causa: for the
right of the transferor to alienate the donated
property to someone else necessarily imports that
the conveyance to the donee will not become final
and definite in favor of the latter until the death of

the donor should exclude every possibility that the

property may be alienated to some other person.

Laureta v Mata
Facts:
A deed of donation was executed by Severa Laureta in favor
of Pedro Emilio Mata.
Partly it said there that for the purpose of giving the young
Pedro Emilio Mata, single seventeen years old, resident of this
municipality and son of Pastor Mata, already deceased, and
Ester Magno, a reward for the services which he is rendering
me, and as a token of my affection toward him and of the fact
that he stands high in my estimation, I hereby donate 'mortis
causa' to said youth all the properties described
Grantor Severa died and Ester Magno, entered upon and took
possession of the lands. As appointed administrator of the
estate of the grantor, Paulo Laureta made a demand upon the
defendants for possession of the lands which was refused, so
he filed an action to recover possession of the premises and
the sum of P9,000 as the value of the products of the land, the
sum of P1,200 damages, for the unlawful and wrongful
withholding of possession, and costs.
Issue: effect that any title or right of possession which Pedro
Emilio Mata has to the possession of the premises is founded
upon the deed executed by Severa Laurente
Held:
The deed of donation is a donation in praesenti and conveyed
the fee simple title to the lands in question subject only to the
life estate of the donor.
During her lifetime the grantor had a legal right to convey the
fee simple title to her lands to any person in her discretion,
reserving to herself a life estate. The conveyance of the lands
took effect upon the making and delivery of the deed,
reserving a life estate only in the donor. The conveyance itself
was not to become effective until the death of the donor, but,
in legal effect, it recites that an actual conveyance is made
subject to the life estate of the donor.
It appears from the instrument itself that Ester Magno
accepted the donation on behalf of the son, and the
acceptance is incorporated in the body of the instrument and
is signed by the donor and acceptor in the presence of
witnesses and the instrument as a whole is legally
acknowledged before a notary public. Legally speaking, it was
a delivery and an acceptance of the deed. The facts bring the
case squarely within article 623 of the Civil Code. Here, there
was a donation and an acceptance both in the same
instrument which made it a perfected donation within the
meaning of article 623.

Concepcion v Concepcion
Facts:
Manuela Concepcion allegedly executed a deed of donation
which is mortis causa in favor of Emilia Concepcion. When she
died, the six nephews of the donor instituted special
proceedings for the summary settlement of the estate of their
aunt, the donor. Emilia, done, opposed the said petition
claiming that the 6 parcels subject of donation belonged to
her.

RTC merely ordered the partition of the estate of Manuela

Concepcion among all her heirs who are besides the six
petitioners, Emilia Concepcion and her four brothers.
Emilia refused to give up the parcels said to have been
donated to her, including a house and a granary as well as
personal properties, the six original petitioners in the special
proceedings filed the present action to have themselves
declared owners of and entitled to the possession of their
shares in those properties claimed by Emilia in the proportion
of one-eleventh (1/11) for each.
After trial RTC found that the donation was one mortis causa
and because it was not executed in the manner required by
the law on wills, it was declared null and void; the properties
therein included were all declared part of the estate of the
deceased Manuela Concepcion subject to distribution among
the heirs.

Trial Court: (1) The donation is a donation mortis causa based

on the provision on the deed of donation that it would take
effect upon the death of the donor. (2) The provision stating
that the donor reserved the right to revoke the donation is a
feature of a donation mortis causa which must comply with
the formalities of a will (3) Inasmuch as the donation did not
follow the formalities pertaining to wills, the same is void and
produced no effect whatsoever. Hence, the sale by the donor
of the said property was valid since she remained to be the
absolute owner thereof during the time of the said
transaction.
CA: A provision in the deed of donation in question providing
for the irrevocability of the donation is a characteristic of a
donation inter vivos. By those words, the donor expressly
renounced the right to freely dispose of the house and lot in
question. The right to dispose of a property is a right essential
to full ownership. Hence, ownership of the house and lot was
already with the donees even during the donors lifetime.

Issue:
Whether deed of donation is inter vivos or mortis causa
Held:

HELD:
We affirm the appellate courts decision.

Here, the donation is entitled and called donacion onerosa

mortis causa. From the body, however we find that the
donation was of a nature remunerative rather than onerous. It
was for past services rendered, services which may not be
considered as a debt to be paid by the donee but services
rendered to her freely and in goodwill. The donation instead of
being onerous or for a valuable consideration, as in payment
of a legal obligation, was more of remuneratory or
compensatory nature, besides being partly motivated by
affection.

In Cuevas v. Cuevas, we ruled that when the deed of donation

provides that the donor will not dispose or take away the
property donated (thus making the donation irrevocable), he
in effect is making a donation inter vivos. He parts away with
his naked title but maintains beneficial ownership while he
lives. It remains to be a donation inter vivos despite an
express provision that the donor continues to be in possession
and enjoyment of the donated property while he is alive. In
the Bonsato case, we held that:

We should not give too much importance or significance to or

be guided by the use of the phrase "mortis causa" in a
donation and thereby to conclude that the donation is not one
of inter vivos. In the case of De Guzman et al. vs. Ibea et al.
(67 Phil., 633), this Court through Mr. Chief Justice Avancea
said that if a donation by its terms is inter vivos, this character
is not altered by the fact that the donor styles it mortis causa.

What is most significant [in determining the type of donation]

is the absence of stipulation that the donor could revoke the
donations; on the contrary, the deeds expressly declare them
to be irrevocable, a quality absolutely incompatible with the
idea of conveyances mortis causa where revocability is of the
essence of the act, to the extent that a testator can not
lawfully waive or restrict his right of revocation.
Maglasang et. Al v Heirs of Corazon Cabatingan
FACTS:

Austria Magat v Hon CA

FACTS:
On December 17, 1975, Basilisa Comerciante, mother of
petitioner and one of respondents, furnished a Deed of
Donation to donate her house and lot to her four children
(petitioner and respondent included), provided that the
funeral expenses will be deducted from the total value of the
lot before it is to be divided among the children. The children
signed to the same deed in acceptance to the donation. That
same day, they also signed into a notarized document stating
that the property and the document pertaining to the same
will be under the custody of the original owner (Comerciante)
for as long as she lives. On February 6, 1979, Comerciante
executed a Deed of Absolute Sale over the same house and
lot in favor of the petitioner, prompting the respondents to file
an action against the petitioner for the annulment of the deed
of sale on September 21, 1983. The lower court ruled in favor
of the respondent (petitioner herein), but the Court of Appeals
reversed the trial court decision.
CONTENTIONS:

On February 17, 1992, Conchita Cabatingan executed in favor

of her brother, petitioner Nicolas Cabatingan, a "Deed of
Conditional of Donation (sic) Inter Vivos for House and Lot"
covering one-half () portion of the former's house and lot
located at Cot-cot, Liloan, Cebu. Four (4) other deeds of
donation were subsequently executed by Conchita Cabatingan
on January 14, 1995, bestowing upon petitioners Nicolas,
Merly S. Cabatingan and Estela C. Maglasang for two parcels
of land. One of the provisions in the deeds are as follows:
"That for and in consideration of the love and affection of the
DONOR for the DONEE, the DONOR does hereby, by these
presents, transfer, convey, by way of donation, unto the
DONEE the above-described property, together with the
buildings and all improvements existing thereon, to become
effective upon the death of the DONOR; PROVIDED,
HOWEVER, that in the event that the DONEE should die before
the DONOR, the present donation shall be deemed
automatically rescinded and of no further force and effect."

When Conchita died in May 9, 1995, and upon learning of the

existence of the foregoing donations, respondents filed an
action to annul the said four (4) deeds of donation.
Respondents allege that petitioners, through their sinister
machinations and strategies and taking advantage of

Conchita Cabatingan's fragile condition, caused the execution

of the deeds of donation, and, that the documents are void for
failing to comply with the provisions of the Civil Code
regarding formalities of wills and testaments, considering that
these are donations mortis causa. Petitioners deny
respondents' allegations contending that Conchita Cabatingan
freely, knowingly and voluntarily caused the preparation of
the instruments. The lower court ruled in favor of the
respondents, while the

the donation executed in favor of Mercedes. The trial court

ruled in favor of the defendants. The Court of Appeals
reversed this judgment. Hence, this petition for review.
ISSUE: Crucial in resolving whether the donation was inter
vivos or mortis causa is the determination of whether the
donor intended to transfer the ownership over the properties
upon the execution of the deed?

ISSUE:
Whether the donations to the petitioners are donations mortis
causa or inter vivos.
HELD:
Petitioners insist that the donations are inter vivos donations
as these were made by the late Conchita Cabatingan "in
consideration of the love and affection of the donor" for the
donee, and there is nothing in the deeds which indicate that
the donations were made in consideration of Cabatingan's
death.

HELD:
The granting clause in the Deed of Donation showed that
Diego donated the properties out of love and affection for the
spouse. This is a mark of a donation inter vivos. The
reservation of lifetime usufruct indicates that the donor
intended to transfer the naked ownership over the properties.
The donor reserved sufficient properties for his maintenance
indicating that the donor intended to part with the parcels of
land donated. Lastly, the donee accepted the donation.
Acceptance is a requirement for donations inter vivos.
Sambaan v. Villanueva

Petitioners' arguments are bereft of merit.

In determining whether a donation is one of mortis causa, the
following characteristics must be taken into account: (1) It
conveys no title or ownership to the transferee before the
death of the transferor; or what amounts to the same thing,
that the transferor should retain the ownership (full or naked)
and control of the property while alive; (2) That before his
death, the transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided for indirectly
by means of a reserved power in the donor to dispose of the
properties conveyed; (3) That the transfer should be void if
the transferor should survive the transferee.

In the present case, the nature of the donations as mortis

causa is confirmed by the fact that the donations do not
contain any clear provision that intends to pass proprietary
rights to petitioners prior to Cabatingan's death. The phrase
"to become effective upon the death of the DONOR" admits of
no other interpretation but that Cabatingan did not intend to
transfer the ownership of the properties to petitioners during
her lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the Acceptance and Attestation
clauses of the Deed of Donation.
That the donations were made "in consideration of the love
and affection of the donor" does not qualify the donations as
inter vivos because transfers mortis causa may also be made
for the same reason.
Petition denied.
Gestopa v CA
FACTS:
3 deeds of donation mortis causa over several parcels of
unregistered land were executed in favor of Mercedes Danlag
y Pilapil by spouses Diego and Catalina Danlag. Diego, with
the consent of Catalina, executed a deed of donation inter
vivos over said parcels of land again in favorof respondent
Mercedes. This contained the condition that the spouses
Danlag shall continue to enjoy the fruits of the land during
their lifetime. Likewise, it imposed a limitation on Mercedes'
right to sell the land during the lifetime of the spouses without
their consent and approval. However, years later, spouses
Danlag sold several parcels of the land so donated to spouses
Gestopa. Thus, Mercedes filed with the Regional Trial Court a
petition for quieting of title, the main issue being the nature of

FACTS: Spanish mani oy!

HELD: In the case of Sambaan vs. Villanueva, (71 Phil., 303),
the donor made a donation "en consideracion al afecto y
carino que profeso a mi ahijado Jesus Flavio Villanueva."The
donor furthermore impose the condition that "esta donacion la
otorgo bajo las consideracion que: solamente surtira efectos
despues de ocurrida mi muerte, . . . ."This court citing the
same comment of Manresa just quoted above held that since
the donation was simply made in consideration not of the
death of the donor but of the affection to the donee, the
donation was inter vivos and not mortis causa, and that the
condition imposed to the effect that the donation "solamente
surtira efectos despues de ocurida mi muerte," did not argue
against the nature of the donation..

Guzman v Ibea
Facts:
Modesta Yangco donated 3 parcels of land to Juana Abella.
Modesta Yangco revoked this donation because the donee's
husband, Teodoro Ibea, had been speaking ill and
discourteously of her. On the very date of the revocation,
Modesta Yangco donated the same property to her nephew
Ignacio de Guzman. So the Guzman is now claiming the
parcels of land.
Issue: Whether Modesta Yangco, after having donated the
property described in the complaint and in the crosscomplaint to Juana Abella, could still revoke this donation.
Held:
We are of the opinion that the donation is inter vivos. The
donation contained the following clause:
" from a desire and wish to reciprocate the great patience
and esteem with which I have been treated by Juana Abella
whom I brought up from childhood to the present, and who
has stood by me through all my adversities, I hereby donate
to my portage, Juana Abella, so that she may hold the same
as her own and always, all the lands belonging to me and
described as follows:
xxx xxx xxx

"It is my will and desire under this deed that all these
properties be administered and held by the said Juana Abella
in the concept of owner, although it is provided in deed that
all the rental of these lands should be delivered to me while I
am living, for my enjoyment an disposal as I may see fit, but,
upon my death, Juana Abella may enjoy all the fruits or
harvest of these properties, with the power to adjudicate the
same by way of inheritance and dispose thereof as she may
deem convenient.
Xxx
The aforequoted clause clearly shows that the donation
became effective immediately, independently of the donor's
death. The properties donated were turned over to the donee
for her administration and possession always and as owner. As
to the naked ownership, the donation is pure, actual. It does
not impose any condition, it does not fix any period for its
transmission, it does not in any manner condition its effects
upon death. The provision in the deed that the income of the
lands be delivered to the donor for her enjoyment until she
dies, does not affect the character of the donation, because
the law precisely requires (art. 634 of the Civil Code), for the
validity of a donation, that there be reserved to the donor, in
full ownership or in usufruct, an amount sufficient to support
her in a manner appropriate to her station.
Being inter vivos, the donation may not the be revoked except
for the cause provided by law (art. 648 of the Civil Code),
among which is not included the fact that the husband of the
donee has spoken ill of the donor, especially as this is not the
act of the donee herself.
The revocation of the donation in favor of Juana Abelle being
null and void, the second donation of the same lands ion favor
of the plaintiff Ignacio de Guzmanis likewise null and void.
Zapanta v Posadas
Facts:
Father Braulio Pineda died in without any ascendants or
descendants, leaving a will in which he instituted his sister
Irene Pineda as his sole heiress. During his lifetime Father
Braulio donated some of his property by public instruments to
the six plaintiffs, severally, with the condition that some of
them would pay him a certain amount of rice, and others of
money every year, and with the express provision that failure
to fulfill this condition would revoke the donations ipso facto.
The donations contained another clause that they would take
effect upon acceptance. They were accepted during Father
Braulio's lifetime by every one of the donees.
Each of the six plaintiffs filed a separate action against the
Collector of Internal Revenue and his deputy for the sums of
which each of them paid, under protest, as inheritance tax on
the property donated to them
Issue:
Whether the donations made by Father Braulio Pineda to each
of the plaintiffs are donations inter vivos, or mortis causa, for
it is the latter upon which the Administrative Code imposes
inheritance tax
Held:
. In our opinion, said donations are inter vivos. It is so
expressly stated in the instruments in which they appear.
They were made in consideration of the donor's affection for
the donees, and of the services they had rendered him, but he
has charged them with the obligation to pay him a certain
amount of rice and money, respectively, each year during his
lifetime, the donations to become effective upon acceptance.

They are therefore not in the nature of donations mortis causa

but inter vivos.
The principal characteristics of a donation mortis causa which
distinguish it essentially from a donation inter vivos, are that
in the former it is the donor's death that determines the
acquisition of, or the right to, the property, and that it is
revocable at the will of the donor. In the donations in question,
their effect, that is, the acquisition of, or the right to, the
property, was produced while the donor was still alive, for,
according to their expressed terms they were to have this
effect upon acceptance, and this took place during the donor's
lifetime.
Neither does the fact that these donations are revocable, give
them the character of donations mortis causa, inasmuch as
the revocation is not made to depend on the donor's exclusive
will, but on the failure to fulfill the condition imposed. In
relation to the donor's will alone, these donations are
irrevocable. On the other hand, this condition, in so far as it
renders the donation onerous, takes it further away from the
dispositions mortis causa and brings it nearer to contract
Sicad v CA

FACTS:
Aurora Montinola executed a deed entitled Deed of Donation
Inter Vivos in favor of her three grandchildren Catalino
Valderrama, Judy Valderrama, and Jesus Valderrama. The deed
however provided that that the donation shall be effective
only 10 years after Montinolas death. In 1980, the original
title of the parcel of land subject of the donation was
cancelled and a new title was given to the Valderramas.
Montinola however retained the original title and she
continued to perform acts of ownership over the parcel of
land.
In 1987, Montinola revoked the donation because of acts of
ingratitude committed against her by the Valderramas; that
the Valderramas defamed her; that she overheard the
Valderramas plotting against her life. In 1990, she petitioned
to have her title be reinstated and her grandchildrens title be
cancelled. She said that the donation is actually a donation
mortis causa and that the same is void because the
formalities of a will were not complied with. In the same year,
she sold her property to spouses Ernesto and Evelyn Sicad.
The Valderramas opposed the petition. In 1993, while the case
was still pending, Montinola died. The petition was continued
by the spouses Sicad.

ISSUE: Whether or not the Deed of Donation Inter Vivos is

actually a donation mortis causa.

HELD:
Yes, the deed is a donation mortis causa. Montinola not only
reserved for herself all the fruits of the property allegedly
conveyed, but what is even more important, specially
provided that without the knowledge and consent of the
Montinola, the donated properties could not be disposed of in
any way, thereby denying to the transferees the most
essential attribute of ownership, the power to dispose of the
properties. A donation which purports to be one inter vivos
but withholds from the done (in this case the Valderramas) the
right to dispose of the donated property during the donors
lifetime is in truth one mortis causa. In a donation mortis
causa the right of disposition is not transferred to the donee

while the donor is still alive. The donation is therefore void

because the formalities of a will, which is essentially a
donation mortis causa, were not complied with.

VALIDITY OF CONDITIONS IN AN ONEROUS DONATION

An onerous donation is that which imposes upon the

donee a reciprocal obligation or, to be more precise,
this is the kind of donation made for a valuable
consideration, the cost of which is equal to or more
than the thing donated.
When the donation is onerous, it is completely
governed not by the law on donations but by the law
on contracts
Donations with an onerous cause are governed not
by the law on donations but by the rules on
contracts. Hence, the formalities required for a valid
donation under Articles 748 and 749 of the Code do
not apply. And since an onerous donation is governed
by the law on obligations and contracts, if an
impossible or illegal condition is imposed in such kind
of donation, the obligation thus created shall be
annulled pursuant to the provisions of Article 1183 of
the Civil Code, which states:
Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
by law shall annul the obligation which depends upon
them. If the obligation is divisible, that part thereof
which is not affected by the impossible or unlawful
condition shall be valid. The condition not to do an
impossible thing shall be considered as not having
been agreed upon. (1116a)

Roman Catholic Archbishop of Manila v. Court of Appeals 198

SCRA 300 (1991)
o

In 1930, the spouses Eusebio de Castro and Martina

Rieta, executed a deed of donation in favor of the
Roman Catholic Archbishop of Manila covering a
parcel of land located at Kawit, Cavite.
The deed of donation provides that the donee shall
not dispose or sell the property within a period of 100
years from the execution of the deed of donation,
otherwise a violation of such condition would render
ipso facto null and void the deed of donation and the
property would revert to the estate of the donors.
In 1980, and while still within the prohibited period,
the Roman Catholic Bishop of Imus, sold the property
to spouses Florencio and Soledad Ignao. When the
heirs of Eusebio Castro and Martina Rieta learned
about the sale, they filed an action for the
nullification of the deed of donation, rescission of the
sale in favor of the spouses Ignao and reconveyance
of the property.
When the case was elevated to the Supreme Court,
the Court declared the prohibition imposed on the
donation as contrary to public policy. Applying the
provisions of Article 727 of the Code, the Court
further held that such condition shall be considered
as not imposed. The Court explained

The cause of action of private respondents is based on

the alleged breach by petitioners of the resolutory
condition in the deed of donation that the property
donated should not be sold within a period of one
hundred (100) years from the date of execution of the
deed of donation.
Said condition, in our opinion, constitutes an undue
restriction on the rights arising from ownership of
petitioners and is, therefore, contrary to public policy.
Donation, as a mode of acquiring ownership, results in an
effective transfer of title over the property from the donor

to the donee. Once a donation is accepted, the donee

becomes the absolute owner of the property donated.
Although the donor may impose certain conditions in the
deed of donation, the same must not be contrary to law,
morals, good customs, public order and public policy. The
condition imposed in the deed of donation in the case
before us constitutes a patently unreasonable and undue
restriction on the right of the donee to dispose of the
property donated, which right is an indispensable
attribute of ownership.
Such a prohibition against alienation, in order to be valid,
must not be perpetual or for an unreasonable period of
time. Certain provisions of the Civil Code illustrative of
the aforesaid policy may be considered applicable by
analogy. Under the third paragraph of Article 494, a donor
or testator may prohibit partition for a period which shall
not exceed twenty (20) years. Article 870, on its part,
declares that the dispositions of the testator declaring all
or part of the estate inalienable for more than twenty (20)
years are void. It is significant that the provisions therein
regarding a testator also necessarily involve, in the main,
the devolution of property by gratuitous title hence, as is
generally the case of donations, being an act of liberality,
the imposition of an unreasonable period of prohibition to
alienate the property should be deemed anathema to the
basic and actual intent of either the donor or testator. For
that reason, the regulatory arm of the law is or must be
interposed to prevent an unreasonable departure from
the normative policy expressed in the aforesaid Articles
494 and 870 of the Code.
In the case at bar, we hold that the prohibition in the
deed of donation against the alienation of the property for
an entire century, being an unreasonable emasculation
and denial of an integral attribute of ownership, should be
declared as an illegal or impossible condition within the
contemplation of Article 727 of the Civil Code.
Consequently, as specifically stated in said statutory
provision, such condition shall be considered as not
imposed. No reliance may accordingly be placed on said
prohibitory paragraph in the deed of donation. The net
result is that, absent said proscription, the deed of sale
supposedly constitutive of the cause of action for the
nullifi cation of the deed of donation is not in truth
violative of the latter hence, for lack of cause of action,
the case for private respondents must fail.

Lagazo v. Court of Appeals 287 SCRA 18 (1998)

o

o
o

Tito Lagazo filed an action against Alfredo Cabanlit

for the recovery of a parcel of land in Sta. Mesa,
Manila which used to be owned by plaintiffs
grandmother, Catalina Jacob Vda. De Reyes.
Plaintiffs claim was anchored on an alleged donation
made by his grandmother in his favor. Defendant, on
the other hand, claimed that he bought the property
from Eduardo Espaol, to whom Catalina allegedly
sold the lot.
After trial, the trial court ruled in favor of plaintiff.
On appeal, the Court of Appeals reversed the
decision of the trial court mainly because of the
absence of any evidence that plaintiff accepted the
donation in the manner required by Article 749 of the
Civil Code.
Plaintiff contended, however, that the formalities for
a donation of real property should not apply to his
case since it was an onerous donation for he
allegedly paid for the amortizations due on the land
before and after the execution of the deed of
donation.

o
o

In upholding the decision of the Court of Appeals that

the subject donation was simple, the Supreme Court
ruled
We rule that the donation was simple, not onerous.
Even conceding that petitioners full payment of the
purchase price of the lot might have been a burden
to him, such payment was not however imposed by
the donor as a condition for the donation. Rather, the
deed explicitly stated: That for and in consideration
of the love and affection which the DONEE inspires in
the DONOR, and as an act of liberality and generosity
and considering further that the DONEE is a grandson
of the DONOR, the DONOR hereby voluntarily and
freely gives, transfer[s] and conveys, by way of
donation unto said DONEE, his heirs, executors,
administrators and assigns, all the right, title and
interest which the said DONOR has in the above
described real property, together with all the
buildings and improvements found therein, free from
all lines [sic] and encumbrances and charges
whatsoever; [emphasis supplied] It is clear that the
donor did not have any intention to burden or charge
petitioner as the donee. The words in the deed are in
fact typical of a pure donation. We agree with
Respondent Court that the payments made by
petitioner were merely his voluntary acts. This much
can be gathered from his testimony in court, in which
he never even claimed that a burden or charge had
been imposed by his grandmother.

2.

3.

4.
5.

PERFECTION OF DONATION
Art. 734. The donation is perfected from the moment
the donor knows of the acceptance by the done
o

o
o

Before notice of the acceptance, therefore, the

offerer (donor) is not bound and may withdraw the
offer of donation. Such revocation will have the effect
of preventing the perfection of the donation,
although it may not be known to the offeree (donee).
The power to revoke is implied in the criterion that no
donation exists until the acceptance is known. As the
tie or bond springs from the meeting or concurrence
of the minds, since up to that moment, there exists
only a unilateral act, it is evident that he who takes it
must have the power to revoke it by withdrawing his
proposition. In the same manner, the acceptance
made by the offeree (donee) may be revoked before
it comes to the knowledge of the offeror (donor).
It is explicit in Article 725 that acceptance is
necessary in a donation.Without acceptance, the
donation is not perfected. The rationale behind the
requirement of acceptance is that nobody is obliged
to receive a benefit against his will
A donation, as a mode of acquiring ownership, results
in an effective transfer of title over the property from
the donor to the donee and once a donation is
accepted, the donee becomes the absolute owner of
the property donated, notwithstanding the condition
imposed by the donee.
Once the donation is accepted, it is generally
considered irrevocable.
Upon the death of either the donor or the donee prior
to the perfection of the donation, the offer of
donation, however, becomes ineffective.

Osorio v. Osorio 41 Phil. 531

FACTS:
1.

Antonio Osorio is the owner of 1/3 of the company

Ynchausti & Cos capital. Upon his death before 1912,

6.

his heirs authorized the defendant, Tomasa Osorio,

then administratix of the estate of the deceased
On February 28, 1914, the widow of Antonio Osorio,
Petrona Reyes, now also deceased, executed before
the notary a document of gift in favor of her son
Leonardo Osorio, the plaintiff, giving to him of her
share in the one-third part which belonged to her
husband in the shipping business of Ynchausti & Co.,
a donation which was duly accepted by the donee
Leonardo Osorio, who signed said document with the
plaintiff.
On that date, February 28, 1914, the estate of
Antonio Osorio was not yet distributed among his
heirs, and the donor Petrona Reyes in order to correct
the error in said document, wherein it was stated
that said half was adjudicated to her as part of her
conjugal property, when the partition was yet being
effected, executed another document dated July 3,
1915, maintaining said donation in effect in the
sense that she ceded and donated to her son
Leonardo Osorio, for the same reasons stated in the
document of February 28, 1914, all interest or
participation in said shipping business of Ynchausti &
Co., which was adjudicated to her in the division of
the estate of D. Antonio Osorio, which division was
approved by the Court of First Instance of Cavite on
May 10, 1915.
The project of partition was approved on May 10,
1915, with the consent of the heirs, by the CFI of
Cacite
After the death of Antonio Osorio and before the
distribution of the estate, Ynchausti & Co. purchased
the steamer Governor Forbes and recognized the
heirs of Antonio Osorio as having an interest to the
extent of one- third in the ownership and business of
said steamer
Leonardo, the plaintiff alleges that, by virtue of the
donation made in his favor by Petrona Reyes, he is
the owner of said shares and of their value which is
P61,000; the defendant, Tomasa, on the other hand
contends that said shares are not included in the
donation in question and belong to the heirs of
Petrona Reyes.

RTC: In favor of Leonardo

Tomasas arguments:

the donation made by Da. Petrona Reyes is void

because she donated on February 28, 1914, a future
property, such as the share in the business of the
deceased Osorio, which was adjudicated to her on
May 10, 1915, and because in 1914 she did not have
the right to all or part of the share which her
deceased husband had in the shipping business of
Ynchausti & Co.

ISSUE: WON the donation in favor of Leonardo was of value

and effect
RULING: The donation in favor of Leonardo was valid.
They do not have the character of future property because
Antonio having, according to the evidence, died before 1912,
his heirs acquired a right to succeed him from the moment of
his death, because of the principle announced in article 657
and applied by article 661 of the Civil Code, according to
which the heirs succeed the deceased by the mere fact
of his death. More or less time may elapse before the heirs
enter into the possession of the hereditary property, but this is
not an obstacle, for the acquisition of said property retroacts
in any event to the moment of death, according to article 989
of the Civil Code. The right is acquired although subject to the
adjudication of the corresponding hereditary portion. We
conclude that the donor, Petrona Reyes, on February 28, 1914,
had a vested right to a certain part of the inheritance of her

husband D. Antonio Osorio, who died in 1912, and could

legally dispose of her right through an act of liberality, as she
had done.
The allegation that the document of July 3, 1915, is void,
because it does not show the acceptance of the donee, is of
no importance. In the second document, the donor only tried
to correct what she believed to be an error in the first, wherein
it is stated that in the partition of the property of her husband
there was adjudicated to her the part of the interest in the
shipping business of Ynchausti & Co. which she donated to her
son Leonardo, when in fact said partition was yet pending.
After its approval by the CFI of Cavite, the donor executed the
document of 1915, ratifying and correcting the document of
donation. She did not make a new donation. She executed a
personal act which did not require the concurrence of the
donee. It is the duty of the donee, in order that the
donation may produce legal effects, to accept the
donation and notify the donor thereof. The acceptance
is necessary because nobody is obliged to receive a
benefit against his will. And all this was complied with
in the document of 1914. The wills of the donor and of the
donee having concurred, the donations as a mode of
transferring ownership, becomes perfect, according to article
623 of the Civil Code.
The widow Da. Petrona Reyes having disposed of half,
donating it to her son Leonardo Osorio, it clearly results, in our
opinion, that the sum of P61,000, or the corresponding shares
of the new corporation "The Ynchausti Steamship Co." are
included in said donation, and therefore belong to Leonardo.
Pajarillo Et. Al v. IAC, GR No. 72908, August 11, 1989
FACTS:
1.

The petitioners are the widow and children of the

brother of the principal private respondent. She and
her brother appear to be the only remaining issue of
the mother who seems to have caused all the
present confusion
2. The mother was Juana Balane de Suterio, who had a
brother named Felipe Balane and a sister named
Perfecta Balane de Cordero. Perfecta died in 1945
leaving inter alia a tract of land consisting of about
28 hectares and covered by TCT No. 4671 in the
Registry of Deeds of Quezon Province. On May 20,
1946, Juana and Felipe executed a public instrument
entitled "Extra-judicial Settlement of the Estate of the
Deceased Perfecta Balane de Cordero.
3. In the EJ Settlement contained the following:
That whereas, we Felipe Balane and Juana Balane de
Suterio, the only heirs of the property described above left by
the deceased Perfects Balane de Cordero, do hereby agree in
carrying out the antemortem wish of our beloved deceased
sister that in consideration of love and affection the property
described above be donated to Salud Suterio de Matias.
That whereas, the estate left by the said Perfecta
Balane de Castro, deceased, is not free from obligation or
debt. It has an incumbrance of about ONE THOUSAND PESOS
(P1,000.00) to the Philippine National Bank, Tayabas Branch.
That whereas, Salud Suterio de Matias, to whom this
property is donated extrajudicially as agreed upon by both
heirs, shall assume the said obligation to the Philippine
National Bank, Tayabas Branch.
4. On June 20,1946, Salud Suterio executed a public
instrument accepting the donation.
5. These instruments were never registered nor was
title transferred in Salud's name although she says
she immediately took possession of the land.
Meantime, intestate proceedings were instituted on
the estate of Perfecta and the said land was among
those included in the inventory of the properties
belonging to the decedent. Salud interposed no

6.

7.

objection to its inclusion nor did she oppose its

subsequent adjudication to her mother Juana in the
project of partition. It is not clear if the land was ever
registered in Juana's name. However, there is
evidence that Juana confirmed the earlier donation of
the land to Salud but requested that she be allowed
to possess the same and enjoy its fruits until her
death. It has also not been controverted that Salud
paid the P1,000.00 loan for which the land was
mortgaged.
Salud says that sometime in 1951, acceding to this
request, she transferred the possession of the land to
her mother, who was then staying with Claudio and
his family. During the period they were occupying the
land, Claudio paid the realty taxes thereon. On May
25, 1956, Juana executed a deed of absolute sale
conveying the land to Claudio for the declared
consideration of P12,000.00. Claudio died in 1961
and his mother in 1963. On June 30, 1965, the
private respondents led a complaint for the
reconveyance of the property on the ground that the
deed of sale in favor of Claudio was fictitious and its
registration in his name was null and void.
Salud (joined by her husband) alleged that she was
unaware until later of the supposed sale of the land
to Claudio. She faulted it as having been procured
through fraud and improper influence on her sick and
aged mother. She claimed that no compensation was
actually paid by Claudio and that the transaction was
deliberately concealed from her by her brother and
the defendants. For their part, the defendants
assailed the donation to Salud as legally in
efficacious and defective and contended that her
complaint was barred by prescription, estoppel and
res judicata. They also filed a counter claim
questioning the sale to Salud by her mother of
another tract of land, in which they said they were
entitled to share as Juana's heirs.

TRIAL COURT: upheld the donation to the plaintiff and

annulling the deed of sale and the registration of the land
in favor of Claudio Suterio, Sr. The defendants were
required to reconvey the land to Salud Suterio even as
their counter claim was dismissed for lack of evidence.
CA: Affirmed Trial Court
The petitioners also assail the intrinsic validity of the
extrajudicial settlement and submit that it is not really a
donation as conceptually understood in civil law. Their
argument is that the real donor of the property was
Perfecta, the deceased sister, who, however, could no
longer bestow the intended gift. It is also pointed out that
the donation is defective in form because of
noncompliance with the requirements of the law
regarding its acceptance. As it was executed in 1946, the
applicable rule is Article 633 of the old Civil Code reading
as follows:
Art. 633. In order that a donation of real property be valid
it must be made by public instrument in which the
property donated must be optically described and the
amount of the charges to be assumed by the donee
expressed. The acceptance may be made in the deed of
gift or in a separate public writing; but it shall produce no
effect if not made during the lifetime of the donor. If the
acceptance is made by separate public instrument,
authentic notice thereof shall be given the donor, and this
proceeding shall be noted in both instruments.
There is no question that the donation was accepted in a
separate public instrument and that it was duly
communicated to the donors. Even the petitioners cannot
deny this. But what they do contend is that such
acceptance was not "noted in both instruments," meaning

the extrajudicial partition itself and the instrument of

acceptance, as required by the Civil Code.

3.

ISSUE: WON the donation was valid

SC: Yes, the donation is valid. It is perfectly true that here
is nothing in either of the two instrument's showing that
"authentic notice" of the acceptance was made by Salud
to Juana and Felipe. And while the first instrument
contains the statement that "the donee does hereby
accept this donation and does hereby express her
gratitude for the kindness and liberality of the donor," the
only signatories thereof were Felipe Balane and Juana
Balane de Suterio. That was in fact the reason for the
separate instrument of acceptance signed by Salud a
month later.
A strict interpretation of Article 633 can lead to no other
conclusion than the annulment of the donation for being
defective in form as urged by the petitioners. This would
be in keeping with the unmistakable language of the
above-quoted provision. However, we find that under the
circumstances of the present case, a literal adherence to
the requirement of the law might result not in justice to
the parties but conversely a distortion of their intentions.
It is also a policy of the Court to avoid such an
interpretation.
The purpose of the formal requirement is to insure that
the acceptance of the donation is duly communicated to
the donor. In the case at bar, it is not even suggested that
Juana was unaware of the acceptance for she in fact
confirmed it later and requested that the donated land be
not registered during her lifetime by Salud. Given this
significant evidence, the Court cannot in conscience
declare the donation ineffective because there is
no notation in the extrajudicial settlement of the
donee's acceptance. That would be placing too
much stress on mere form over substance. It would
also disregard the clear reality of the acceptance of the
donation as manifested in these separate instrument
dated June 20, 1946, and as later acknowledged by Juana.

4.

There is nothing in this instrument to suggest that the

donation was to take effect upon the death of the donors
as to make it a donation mortis cause as urged by the
petitioners. The donation became effective upon
acceptance by Salud except that, in obedience to her
mother's request, she chose not to register the land in the
meantime and to allow her mother to enjoy its fruits.
What was deferred was not its effectivity but only its
enjoyment by Salud. Registration was not necessary to
make the donation a binding commitment insofar as the
donors and the donee were concerned.
It is clear that Juana Balane de Suterio had no right to sell
the subject land to Claudio because she was no longer its
owner, having previously donated it to her daughter
Salud. Juana herself was holding the land merely as a
trustee of Salud, who had transferred possession to her
mother at the old woman's request. The deed of sale was
itself vitiated by bad faith as Claudio is presumed to have
known of the previous donation to his sister Salud, whose
acceptance of the donation was formally witnessed by his
own wife, the herein principal petitioner. 118 8 When
Claudio registered the land in his name knowing there
was a aw in his title, an implied trust was created in favor
of Salud as the real owner of the property.
Dolar v. Barangay Lublub 475 Scra 458
Facts:
1.
2.

5.

Dolar vs Brgy. Lublub et al.

FACTS:

Petitioner and Serafin Jaranilla were co-owners of

a parcel of land with an area of 4.6 hectares,
identified as Lot No. 1, Pcs-06-000744 (Lot No. 1,
for brevity), situated in Brgy. Lublub, Municipality
of Dumangas, Iloilo. Said property forms part of
Lots No. 4181 and 4183 of the Dumangas
Cadastre, On September 16, 1981, petitioner
and Jaranilla donated Lot No. 1 to respondent
Barangay Lublub, subject to the following
conditions:
a. That the area donated shall be for the
purpose of con[s]tructing building
and/or establishing public plaza, sports
complex, public market, health centers
and the like for the use of the Barangay
of Lublub . . . which area shall be
hereinafter
be
known
as
DON
VENANCIO DOLAR PLAZA and shall be
so designated in a proper landmark;
b. That the construction and development
of the area above-described shall be
initiated and completed within five (5)
years from the execution of this Deed of
Donation and should the same be not
made or completed then this Deed of
Donation shall have no force and effect
whatsoever and the ownership of the
above-described property will revert
back to the DONORS including all or any
unfinished improvement the DONEE
might have placed or constructed.
c. That . . . should the use of the area be
converted to uses other thanherein
stipulated,
then
this
DEED
OF
DONATION shall be deemed revoked
and the ownership shall revert back to
the DONORS . . . (Underscoring added).
Then barangay captain Jose Militar accepted the
donation in behalf of Brgy. Lublub. Respondent
barangay however failed to have the donation
registered under its name while petitioner
acquired TCT covering the donated area.
Sometime in June 1989, petitioner executed
another
deed
donating
to
Brgy.Lublub,
represented by its incumbent barangay captain,
the very same area he and Serafin Jaranilla had
earlier donated to the same donee. The second
deed of donation contained exactly the same
conditions expressly set forth in the first. On May
6, 1998, in the Regional Trial Court (RTC) at Iloilo
City, petitioner filed against Brgy. Lublub a
complaint for Quieting of Title and Recovery of
Possession With Damages involving the 4.6hectare area he had earlier donated. Basically,
petitioner claimed that the donation in question
had ceased to be effective, the donee barangay
having failed to comply with the conditions of
the donation.
Trial court, on the finding that petitioner's action
was already barred by extinctive prescription
under Article 764, 11 in relation to Articles 733
12 and 1144 (1) 13 of the Civil Code, granted the
Barangay's motion to dismiss in Civil Case No.
98-033 and denied petitioner's similar motion in
Civil Case No. 00-140. The action to revoke
donation was to have been filed within ten (10)
years from the time the action accrued, i.e., from
the time of the non-compliance of the conditions.
ISSUES:
Whether or not the acceptance of the donation is
defective making it invalid.
Whether or not the deed of donation in question
is no longer effective by reason of the automatic
reversion clause therein.

Whether or not the action to quiet title has

prescribed.
Whether or not the donation was invalid because
it was not registered in the Registry of Property
RULING:
The Supreme Court held that the donation being
valid and effective, virtually forecloses any claim
which petitioner may have over the donated
property against the donee and other occupants
thereof, and his action to quiet title has no merit.
Militar was clothed with authority to accept the
donation for respondent barangay. On this point,
petitioner cites Section 88 of Batas Pambansa
Blg. 337 [16] - the law then in force - and
Sections 91 and 389 the Local Government Code
of 1991. In gist, these provisions empower the
punongbarangay to enter into contracts for the
barangay upon authorization of the Sangguniang
Barangay, or, in the alternative, theSanggunian
may authorize the barangay head to enter into
contracts for the barangay. Moreover, from the
allegations of all the parties, it would appear
that, through the years, the Sanggunian of
Lublub as well as all the succeeding Sangunians
of P.D. Monfort North neither repudiated the
acceptance of the donation by Militar nor acted
in a manner reflective of their opposition to the
donation. On the contrary, the respondent
barangay has been enjoying the material and
public-service
benefits
arising
from
the
infrastructures projects put up on the subject
property. In a very real sense, therefore, the
Sangguniang Barangay and the good people of
P.D. Monfort North, by availing themselves of
such benefits for more than two decades now,
effectively ratified Militar's acceptance of the
donation.
If the corresponding contract of donation
expressly provides for automatic rescission
and/or reversion in case of breach of the
condition therein, and the donee violates or fails
to comply with the condition, the donated
property reverts back automatically to the donor.
Such provision, De Luna teaches, is in the nature
of an agreement granting a party the right to
rescind a contract in case of breach, without
need of going to court and that upon the
happening of the resolutory condition or noncompliance with the conditions of the contract,
the donation is automatically revoked without
need of a judicial declaration to that effect.
Where, however, the donee denies, as here, the
rescission or challenges the propriety thereof,
then only the final award of the court can, to
borrow from University ofthe Philippines vs.de
los Angeles, "conclusively settle whether the
resolution is proper or not."
When a deed of donation expressly provides for
automatic revocation and reversion of the
property donated, the rules on contract and the
general rules on prescription should apply, and
not Article 764 of the Civil Code. Since Article
1306 of said Code authorizes the parties to a
contract to establish such stipulations, . . . not
contrary to law, . . . public order or public policy,
we are of the opinion that, at the very least, that
stipulation of the parties providing for automatic
revocation of the deed of donation, without prior
judicial action for that purpose, is valid subject to
the determination of the propriety of the
rescission sought. Where such propriety is
sustained, the decision of the court will be
merely declaratory of the revocation, but it is not
in itself the revocatory act. In the case at bench,
it cannot be gainsaid that respondent barangay

denied or challenged the purported revocation of

the donation.
Lest it be overlooked, the rule on the
imprescriptibility of actions to quiet title admits
of exceptions. The trial court correctly mentioned
one, referring to a situation where the plaintiff in
an action to quiet title is not in actual possession
of the land. In the case at bench, petitioner is
not in possession of the property.
It may be recalled, respondent barangay had,
under the terms of the deed of donation, five (5)
years from the execution of the conveying deed
in September 1981, or up September 1986,
within which to introduce and complete the
contemplated development of the donated area.
Following Article 764 of the Civil Code, petitioner
had four (4) years from September 1986, or up
to September 1990, within which to seek the
revocation of the subject donation on the ground
of breach of contract. The Court can grant that
the prescription of actions for the revocation of
onerous donations, as here, are governed by the
general rules on prescription, which, in context,
is Article 1144 of the Civil Code providing that
actions upon a written contract shall be brought
within ten (10) years from accrual of the right of
action. Ten years from September 1986 the
date when petitioner's right to revoke accrued
would be September 1996. Here, however, what
partakes as petitioner's suit to revoke was filed
only in May 1998. In all, petitioner's right of
action to revoke or cancel the donation had
indeed prescribed, regardless of whether the
applicable legal provision is Article 764 or the
favorable Article 1144 of the Civil Code.
It should be stated in this regard, however, that
respondent barangay had disputed the existence
of the grounds upon which petitioner anchored
his right to revoke, claiming it had already
complied with the construction and development
conditions of the donation. From the records, it
would appear that respondent barangay's boast
of compliance is not an empty one. As we see it,
the establishment on the donated area of
telephone service, a water service, a police
mobile force, and a courtroom, all for the
benefits of the barangay residents, substantially
satisfies the terms and conditions of the subject
donation. The concrete paving of roads and the
construction of government offices, sports
complex for public enjoyment and like
infrastructures which, per respondent barangay's
estimate, cost not less than P25 Million, add
persuasive dimension to the conclusion just
made. Petitioner's long silence vis- -vis the kind
of development structures that Barangay Lublub
had decided to put up or allowed to be
established on the subject area cannot but be
taken as an indicia of his satisfaction with
respondent barangay's choice of public service
projects. The prolonged silence was broken only
after the provincial and municipal governments
advertised, then sold the property in a public
auction to satisfy questionable tax liabilities.
As between the parties to the donation and their
assigns, the registration of the deed of donation
with the Registry of Deeds is not needed for its
validity and efficacy. In Pajarillo vs. Intermediate
Appellate
Court
the
Court
emphatically
dismissed the notion that registration was
necessary to make the donation a binding
commitment insofar as the donor and the donee
were concerned.

Persons who may give or receive a donation

Who may donate?

To be a donor, the law requires that a person must be in
possession of the capacity to contract and the capacity to
dispose of his property and is not specifically prohibited to
make a donation.
Capacity of the donee

The law does not require that the donee must

possess capacity to act, which is defined as the
power to do acts with legal effect,147 it being
sufficient that he must possesses juridical capacity or
the fitness to be the subject of legal relations. So
long as the donee possesses juridical capacity and
not specially disqualified by law, he may accept
donations.148 Stated otherwise, all persons, whether
natural or juridical, who are not specially disqualified
by law may become donees. Hence, minors, persons
who cannot enter into a contract and even conceived
and unborn children may become donees.

While minors, other incapacitated persons and

conceived and unborn children may become donees,
the law requires that the acceptance of the donation
must be made through their parents or legal
representatives
Persons Disqualified to Become Donees:
Persons who are disqualified to become donees are those to
whom donations cannot be made by express provisions of law.
Hence, the following persons are disqualified to become
donees:
(1) Those who were guilty of adultery or concubinage at the
time of the donation;
(2) Those who were found guilty of the same criminal offense,
if the donation is made in consideration thereof;
(3) Public officers or their spouses, descendants and
ascendants, if the donation is made by reason of their office;
(4) Those who are incapacitated to succeed by will;
(5) The spouses, if the donation is between them and made
during the marriage, except moderate ones given on the
occasion of any family rejoicing;
(6) Those who are living together as husband and wife without
a valid marriage, if the donation is between them and made
during their cohabitation.
Persons Disqualified to Succeed by Will
In relation to Article 1027, the following persons are
disqualified to become donees under the provisions of Article
740 of the Civil Code:
(1) The priest who heard the confession of the (donor) during
his last illness, or the minister of the gospel who extended
spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within
the fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister
may belong;
(3) A guardian with respect to (donations) made by a ward in
his favor before the final accounts of the guardianship have
been approved, even if the (donor) should die after the
approval thereof; nevertheless, any (donations) made by the
ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any physician, surgeon, nurse, health officer or druggist
who took care of the (donor) during his last illness; and
(5) Individuals, associations and corporations not permitted by
law to (receive donations)

Arcaba v. Erlinda Tabancura Et. Al. GR No. 146683, November

22, 2001
FACTS:
Francisco Comille and his wife Zosima Montallana became the
registered owners of Lot No. 437-A located at Balintawak St.
and Rizal Avenue in Dipolog City, Zamboanga del Norte in
January 1956. Zosima died in 1980 hence Francisco and his

mother in law executed a deed of extrajudicial partition with

waiver of rights, where the latter waived her share consisting
of of the property in favor of Francisco. Since Francisco do
not have any children to take care of him after his retirement,
he asked Leticia, his niece, Leticias cousin, Luzviminda and
Cirila Arcaba, the petitioner, who was then a widow and took
care of Franciscos house as well as the store inside.
According to Leticia, Francisco and Cirila were lovers since
they slept in the same room. On the other hand, Erlinda
Tabancura, another niece of Francisco claimed that the latter
told her that Cirila was his mistress. However, Cirila defensed
herself that she was a mere helper who could enter the
masters bedroom when Francisco asked her to and that
Francisco was too old for her. She denied having sexual
intercourse with Francisco. When the nieces got married,
Cirila who was then 34 year-old widow started working for
Francisco who was 75 year old widower. The latter did not pay
him any wages as househelper though her family was
provided with food and lodging.
Franciscos health
deteriorated and became bedridden. Tabancura testified that
Franciscos only source of income was the rentals from his lot
near the public streets.
In January 1991, few months before Francisco died, he
executed a Deed of Donation Inter Vivos where he ceded a
portion of Lot 437-A composed of 150 sq m., together with his
house to Cirila who accepted the same. The larger portion of
268 sq m. was left under his name. This was made in
consideration of the 10 year of faithful services of the
petitioner. Atty Lacaya notarized the deed and was later
registered by Cirila as its absolute owner.
In Octoer 1991, Francisco died and in 1993, the lot received
by Cirila had a market value of P57,105 and assessed value of
P28,550. The decedents nephews and nieces and his heirs
by intestate succession alleged that Cirila was the commonlaw wife of Francisco.
ISSUE: Whether or not the deed of donation inter vivos
executed by Francisco in Arcabas favor was valid.
HELD: The court in this case considered a sufficient proof of
common law relationship wherein donation is not valid. The
conclusion was based on the testimony of Tabancura and
certain documents bearing the signature of Cirila Comille
such as application for business permit, sanitary permit and
the death certificate of Francisco. Also, the fact that Cirila did
not demand her wages is an indication that she was not
simply a caregiver employee.
Cohabitation means more than sexual intercourse, especially
when one of the parties is already old and may no longer be
interested in sex at the very least, cohabitation is a public
assumption of men and women holding themselves out to the
public as such. Hence, the deed of donation by Francisco in
favor of Cirila is void under Art. 87 of the Family Code.

Making and Acceptance of Donation

Formalities in Donation
While donation is considered as a contract and, as a rule,
contracts are obligatory in whatever form they may have been
entered into, donation, however, is a solemn contract which
requires form for purposes of validity. In other words, if the
formalities required in Articles 748 and 749 are not followed
the donation shall be void.
Applicability of Articles 748 and 749, NCC
The formalities provided for in Articles 748 and 749 are
applicable only to donations inter vivos and not to transfer
mortis causa, the latter being governed by the formalities for
the validity of wills.

The formalities required in Articles 748 and 749 apply only to

simple and remuneratory donations and find no application to
onerous ones, the latter being governed by the rules on
contracts.
Form of Donations of Personal Property
The formalities of donations involving personal properties are
governed by Article 748 of the New Civil Code. Depending on
its value, the donation of a personal property may be made
either orally or in writing.

If the value of the personal property does not

exceed five thousand pesos (P5,000.00), the
donation may be made orally subject, however,
to the requirement that there must be
simultaneous delivery of the thing or of the
document representing the right donated. If
there is no simultaneous delivery, the donation is
void. There is nothing in the law, however, which
prevents the donation from being reduced in writing.
If the donation is in writing, note that there is no
requirement of simultaneous delivery and the law
does not require that the acceptance must also be in
writing. As such, if the value of the personal property
to be donated does not exceed P5,000 and the
donation is made in writing, the acceptance may be
made either orally or in writing, expressly or tacitly,
and without need of simultaneous delivery.

If the value of the personal property to be donated

exceeds P5,000.00, the law mandates that both
the donation and the acceptance must be in
writing, otherwise, the donation shall be void. Note
that the law simply requires the donation and the
acceptance to be in written form and such
requirement is complied with if both the donation and
the acceptance are embodied either in a private
instrument or a public instrument. Further, the law
does not require that both the donation and the
acceptance be embodied in a single instrument.
Hence, the acceptance may be made in a separate
instrument and such fact is not required to be noted
in both instruments of donations and acceptance.
If what is to be donated is a real property, the law
mandates that:
(1) both the donation and the acceptance must be embodied
in a public instrument, although not necessarily embodied in a
single document;
(2) the real property donated and the value of the charges
which the donee is required to satisfy must be specified in the
deed of donation;
(3) if the acceptance is embodied in a separate public
document, the donor shall be notified thereof in an authentic
form and such step shall be noted in both instruments of
donation and acceptance.201 All the foregoing requisites
must be complied with, otherwise, the donation shall be void.
Donation and Acceptance Must Be in Public Document
In order that the donation of an immovable property may
be valid, it must be made in a public document regardless of
the value of the property. It is clear from Article 749 that a
transfer of real property from one person to another cannot
take effect as a donation unless embodied in a public
document. And since donation is perfected only from the
moment the donor knows of the acceptance by the donee,
acceptance of the donation by the donee is, therefore,
indispensable; its absence makes the donation null and void.
When applied to a donation of an immovable property, the law
further requires that the acceptance must be made in the
same deed of donation or in a separate public document.

The acknowledgement only contains the name of the donor

to be the only one who appeared before the Notary Public.
There was no mention of the donee. But in the Deed of
Donation itself, there appears a stipulation that the donee
hereby receives and accepts the gift and donation made in
her favor by the donor.
HELD:
In the same vein, the lack of an acknowledgment by the
donee before the notary public does not also render the
donation null and void. The instrument should be treated in
its entirety. It cannot be considered a private document in
part and a public document in another part. The fact that it
was acknowledged before a notary public converts the deed
of donation in its entirety a public instrument. The fact that
the donee was not mentioned by the notary public in the
acknowledgment is of no moment.

Heirs of Salud Dizon Salamat v. Tamayo

FACTS:

Quilala v. Gliceria Alcantara

FACTS:

Agustin Dizon died intestate on May 15, 1942 leaving

behind his five children Eduardo, Gaudencio, Salud,
Valenta and Natividad as surviving heirs. Among the
properties left by the decedent was a parcel of land
in Barrio San Nicolas, Hagonoy, Bulacan, with an area
of 2,188 square meters covered by Original
Certificate of Title No. 10384.
On January 8, 1944, Eduardo sold his hereditary
rights in the sum of P3,000 to his sister Salud Dizon
Salamat. The sale was evidenced by a private
document bearing the signatures of his sisters
Valenta and Natividad as witnesses.
On June 2, 1949, Gaudencio likewise sold his
hereditary rights for the sum of P4,000 to his sister
Salud. The sale was evidenced by a notarized
document which bore the signature of Eduardo Dizon
and a certain Angela Ramos as witnesses. Gaudencio
died on May 30, 1951 leaving his daughters Priscila
D. Rivera and Maria D. Jocson as heirs.
Sometime in 1987, the heirs of Salud Dizon Salamat
and the heirs of Anselma Reyes Dizon filed an action
for compulsory judicial partition of real properties
registered in the name of Agustin Dizon with the
Regional Trial Court, Branch 18 of Malolos, Bulacan.
The action was prompted by the refusal of Natividad
Dizon Tamayo to agree to the formal distribution of
the properties of deceased Agustin Dizon among his
heirs. Her refusal stemmed from her desire to keep
for herself the parcel of land covered by OCT 10384
where she presently resides, claiming that her father
donated it to her sometime in 1936 with the
conformity of the other heirs. The subject property is
also declared for taxation purposes under Tax
Declaration No. 10376 in the name of Natividad
Dizon Tamayo.
Natividad claims that her father donated the subject
property to her sometime in 1936 with the consent of
her co-heirs. In support of her claim, Natividad
presented a private document of conformity which
was allegedly signed and executed by her elder
brother, Eduardo, in 1936. The heirs of Salud and
Anselma, however, question the authenticity of the
document inasmuch as it is marred by unexplained
erasures and alterations. Notwithstanding the
unexplained erasures and alterations, the Court of
Appeals, in affirming the decision of the RTC favoring
Natividad, stated that a cursory reading of the signed
statement of Eduardo Dizon, which execution is
undisputed, showed that there was an oral donation
of the litigated land from Agustin Dizon to Natividad
Dizon Tamayo in 1936.
In reversing the decision of the Court of Appeals, the
Supreme Court held that such oral donation was void.

The Court explained It is clear from Article 749

that a transfer of real property from one person to
another cannot take effect as a donation unless
embodied in a public document. The alleged
donation in the case at bar was done orally and not
executed in a public document. Moreover, the
document which was presented by respondent in
support of her claim that her father donated the
subject parcel of land to her was a mere private
document of conformity which was executed by her
elder brother, Eduardo in 1956. It may not be amiss
to point out that the brothers Eduardo and Gaudencio
had already ceded their hereditary interests to
petitioner Salud Dizon Salamat even before 1950.
Pajarillo et. Al v. IAC (supra)
The purpose of the formal requirement for acceptance of a
donation is to ensure that such acceptance is duly
communicated to the donor. Thus, in Pajarillo v. Intermediate
Appellate Court, the Court held:

There is no question that the donation was accepted

in a separate public instrument and that it was duly
communicated to the donors. Even the petitioners
cannot deny this. But what they do contend is that
such acceptance was not noted in both
instruments, meaning the extrajudicial partition
itself and the instrument of acceptance, as required
by the Civil Code. That is perfectly true. There is
nothing in either of the two instruments showing that
authentic notice of the acceptance was made by
Salud to Juana and Felipe. And while the fi rst
instrument contains the statement that the donee
does hereby accept this donation and does hereby
express her gratitude for the kindness and liberality
of the donor, the only signatories thereof were
Felipe Balane and Juana Balane de Suterio. That was
in fact the reason for the separate instrument of
acceptance signed by Salud a month later.
A strict interpretation of Article 633 can lead to no
other conclusion that the annulment of the donation
for being defective in form as urged by the
petitioners. This would be in keeping with the
unmistakable
language
of
the
above-quoted
provision. However, we find that under the
circumstances of the present case, a literal
adherence to the requirement of the law might result
not in justice to the parties but conversely a
distortion of their intentions. It is also a policy of the
Court to avoid such an interpretation. The purpose of
the formal requirement is to insure that the
acceptance of the donation is duly communicated to
the donor.
In the case at bar, it is not even suggested that Juana
was unaware of the acceptance for she in fact
confirmed it later and requested that the donated
land be not registered during her lifetime by Salud.
Given this significant evidence, the Court cannot in
conscience declare the donation ineffective because
there is no notation in the extrajudicial settlement of
the donees acceptance. That would be placing too
much stress on mere form over substance. It would
also disregard the clear reality of the acceptance of
the donation as manifested in the separate
instrument dated June 20, 1946, and as later
acknowledged by Juan.
In the case at bar, a school building was immediately
constructed after the donation was executed.
Respondents had knowledge of the existence of the
school building put up on the donated lot through the
efforts of the Parents-Teachers Association of
Barangay Kauswagan. It was when the school
building was being dismantled and transferred to the
new site and when Vice Mayor Wilfredo Palma was
constructing a house on the donated property that

respondents came to know of the Deed of Exchange.

The actual knowledge by respondents of the
construction and existence of the school building
fulfilled the legal requirement that the acceptance of
the donation by the donee be communicated to the
donor.
Void Donation As Basis For Title by Acquisitive
Prescription

Calicdan v. Cendana
FACTS:
The donation involved a 760 sq.m. parcel of land in
Mangaldan, Pangasinan executed by Fermina Calicdan (in
1947) in favor of Silverio Cendana. This is a suit for recovery
instituted by Soledad Calicdan, one of the children of Fermina.
The donation was found to be the exclusive property of
Ferminas husband, Sixto, being an inheritance from the
latters parents.
HELD:
Although the donation is void for having been executed by
one who is not the owner, considering that it was established
that respondent Silverio Cendana has been in possession of
the land for 45 years already he has acquired title to it by
acquisitive prescription.
Effect of Donations And Limitations
Extent of Donation
A donor may donate all his property or part thereof subject
only to the following limitations:
(1) He cannot donate future property;

it is possible that, at the time of the

execution of the deed of donation or even
up to the time of acceptance, the donor may
not be the owner of the property donated,
so long as at the time the acceptance is
conveyed at which point the donation is
considered perfected the requirement of
the law (that the donor must be the owner
of the property donated) is already complied
with

In donation propter nuptias, however, the

Family Code allows a donation of future
property between the spouses Under said
provision of the Family Code, however, the
donation of future property partakes of the
nature of a testamentary provision and, as
such, it is governed by the provisions on
testamentary succession and the formalities
of wills.

Under the Family Code, either spouse may

dispose of his or her interest in the
community property or conjugal partnership
of gains only by will and not by acts inter
vivos. Hence, neither the husband nor the
wife may donate his or her interest in the
community property or conjugal partnership
of gains.
(2) He must reserve, in full ownership or in usufruct, sufficient
means for the support of himself, and of all relatives who, at
the time of the acceptance of the donation, are by law entitled
to be supported by him; and

However, if the donor fails to make such

reservation, the donation is not void but
subject only to a corresponding reduction at
the instance of any person affected and
only to the extent necessary for the support
of the donor and his relatives referred to in
Article 750 of the Civil Code

(3) He cannot give by donation more than he can give by will.

If he does, so much of what is donated as

exceeds what he can give by will is deemed
inofficious and the donation is reducible to
the extent of such excess, though without
prejudice to its taking effect in the donors
lifetime or the donees appropriating the
fruits of the thing donated.

There is a part of a persons property which

he cannot dispose of either by way of
donation inter vivos or by testamentary
provision in a will because the law has
reserved it for his compulsory heirs (those
who are entitled to the legitime and cannot
be deprived thereof by the testator unless
properly disinherited by the testator). This
portion is called the legitime.

Inofficious donations are, therefore, those

which prejudice the legitime of the
compulsory heirs. Inofficious donations are
not void although they may be subjected to
a corresponding reduction or revocation, as
the case may be, if there is impairment of
the legitime of the compulsory heirs of the
donor. And whether or not there is
impairment of such legitime is a matter that
can be determined only upon the death of
the donor after considering the estimated
net value of his property at the time of his
death.
Effect of Donations
Donations Made to Several Donees Jointly
(1) The donees are entitled to equal portions;
(2) If the donees are not husband and wife, there is no
right of accretion among them, accretion taking place only
when expressly provided for by the donor. If the donation,
however, is made to husband and wife jointly the rule is that
there is a right of accretion among them unless the donor
provides for the contrary.
When there is a right of accretion among several donees, the
share of the one who did not accept or could not accept or
who died before he had accepted shall go the other donees in
proportion to the interest of each in the donation. In such a
situation, the acceptance by any of the donees of the
donation shall result in its perfection thereby preventing the
donor from revoking that part of the donation corresponding
to the share of the one who did not accept or who died prior to
his acceptance.
(3) If the donation is made to the spouses jointly in a regime
of conjugal partnership of gains, and with designation of
determinate shares, their respective shares shall pertain to
them as his or her own exclusive property. In the absence of
designation, they shall share and share alike, without
prejudice to the right of accretion.
No Warranty Against Eviction
As a rule, the donor does not warrant the thing donated
against eviction. Hence, the donor has no liability to the
donee in case of eviction except: (1) when there is bad faith
on the part of the donor, in which case he is also liable for
hidden defects; or (2) when the donation is onerous, in which
case the donor shall be liable up to the amount equal to the
burden.
Reservation of Power to Dispose

If there is a reservation by the donor of the power to

dispose or alienate the property donated and such
right is unqualified or unrestricted, meaning, the
donor can alienate the conveyed property in favor of
other persons of his choice at any time that he
should wish to do so, the donation is mortis causa.

The provision of Article 755 of the Civil Code,

contemplates of a situation where there are several
properties donated by the donor and he reserved for

himself the power to dispose of some of the things

donated, or of some amount. Such reservation is
valid and will not affect the character of the
conveyance as donation inter vivos. If the donor
should die, however, without having made use of this
right, the property or amount reserved shall belong
to the donee.
On the other hand, if there are several properties
donated and the donor has reserved the power to
dispose of all of them, which right is neither qualified
nor restricted, meaning he can alienate all the
conveyed properties in favor of other persons of his
choice at anytime that he should wish to do so, the
donation is mortis causa, therefore, subject to the
rules governing testamentary provisions and
formalities of wills.

Separate Donation of Ownership and Usufruct

The donor may donate separately the ownership of the
property to one person and the usufruct to another or others
subject only to the condition that all the donees must be living
at the time of the donation.
Donor May Provide for Reversion
The donor may validly provide for the reversion or return of
the property donated to him for any case and circumstances.
He may likewise establish a reversion in favor of a third
person provided that such person is living at the time of the
donation. If the latter condition is violated, only the provision
for reversion is considered void without affecting the validity
of the donation.
Payment of Donors Debts
When the donation imposes upon the donee the obligation to
pay the debts of the donor, the following rules shall apply
unless a contrary intention clearly appears:
(1) the donee is understood to be liable to pay only the debts
which appear to have been previously contracted; and
(2) the liability of the donee is limited only to the value of the
property donated.
On the other hand, in the absence of any stipulation regarding
the payment of the debts of the donor, the donee shall be
responsible therefore only when the donation has been made
in fraud of creditors. And such donation is presumed to be in
fraud of creditors when at the time of the donation the donor
did not reserve sufficient property to pay his debts prior to the
donation. The liability, however, of the donee should be
limited only to the value of the property donated.
Revocation and Reduction of Donations
In General
As previously explained, a donation, as a mode of acquiring
ownership, results in an effective transfer of title over the
property from the donor to the donee and once a donation is
accepted, the donee becomes the absolute owner of the
property donated. Hence, as a rule, once the donation is
accepted, it is generally considered irrevocable.The
exceptions to irrevocability are the following grounds
expressly provided in Articles 752, 760, 764 and 765 of the
New Civil Code:
(1) the subsequent appearance of children;
o
Every donation inter vivos, made by a person having
no children or descendants, legitimate or legitimated
by subsequent marriage, or illegitimate, may be
revoked or reduced as provided in the next article,
by the happening of any of these events:
o
if the donor, after the donation, should have
legitimate or legitimated or illegitimate
children, even though they be posthumous;
o
if the child of the donor, whom the latter
believed to be dead when he made the
donation, should turn out to be living; or
o
if the donor subsequently adopt a minor
child.

o
o

Note that the happening of any of these events shall

only give rise to a cause or ground to revoke the
donation. Hence, if the proper action for revocation is
not instituted, or if it is instituted but after the lapse
of the statutory period of prescription, the donation
will forever be considered valid. For any of these
events to be considered as grounds for the
revocation of a donation it is necessary, however,
that the donor, at the time of the donation, did not
have, or at least he believed that he did not
have, any children or descendants, whether
legitimate, legitimated, illegitimate or adopted.
Effect: Upon the happening of any of the events
mentioned in Article 760, the donor shall be entitled
to demand either for the reduction or revocation
ILLUSTRATIONS: If, at the time of the subsequent
appearance of a child under Article 760, the entire
donation is found to be within the free portion of the
donors estate, in which case, the donation is neither
reduced nor revoked, and later on the donor died
after suffering financial reverses, may such donation
be revoked if found to be inofficious at the time of
the donors death? The answer is clearly in the
affirmative. In this situation, the ground for the
revocation of the donation is Article 752 of the New
Civil Code.
Let us consider, however, a donation which is either
reduced or revoked because it is found to be
inofficious at the time of the subsequent appearance
of a child under Article 760, but later on the donor
dies a richer man and, at the time of his death, the
previous donation could have been accommodated in
the free portion, may the donee be entitled to the
return of the thing donated or its value? The answer
must be in the negative. In this second situation, the
ground for the revocation of the donation is Article
760, which is an altogether different ground from
that provided in Article 752.
The prescriptive period of an action for revocation or
reduction of the donation under Article 760 is four (4)
years reckoned from the birth of the first child, or
from his legitimation, recognition or adoption, or from
judicial declaration of filiation, or from the time
information was received regarding the existence of
the child believed dead. If, however, the child dies
prior to the filing of the action, it is believed that the
action can no longer be brought. This action is not
subject to waiver or renunciation and is transmitted,
upon the death of the donor, to his legitimate or
illegitimate children and descendants, if the donor
dies within the four-year prescriptive period.

(2) the non-fulfillment of charges imposed in the donation;

o
when the law and the deed of donation speaks of
conditions of a donation, what are referred to are
actually the obligations, charges or burdens imposed
by the donor upon the donee and which would
characterize the donation as onerous.
o
Applying the rule of the Supreme Court in De Luna v.
Abrigo, which cited Article 1144(1) of the New Civil
Code as legal basis, the prescriptive period of an
action for revocation of an onerous donation by
reason
of
non-compliance
with
the
condition/obligation imposed is ten (10) years
counted from the time within which the donee must
comply with the conditions/obligations of the
donation.
o
When the donation is revoked for failure to comply
with the charges imposed on the donation, the
property donated shall be returned to the donor. Any
alienation or encumbrance made by the donee with
respect to the donated property shall be considered
void, subject, however, to the rights of a buyer or
mortgagee in good faith. If the revocation is based
upon noncompliance with any of the conditions
imposed in the donation, the donee shall return not

only the property but also the fruits thereof which he

may have received after having failed to fulfi ll the
condition.
Prescriptive Period of Action Based under Article
764: The action for revocation based on Article 764
shall prescribe after four (4) years from the noncompliance with the condition. Such action is
transmissible to the heirs of the donor and may be
exercised against the heirs of the donee.
Article 764 does not apply when donation expressly
provides for automatic reversion

(3) the ingratitude of the donee;

o
The donation may be revoked at the instance of the
donor, in the following cases:
(1) If the donee should commit some offense against
the person, the honor or the property of the donor, or
of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act
has been committed against the donee himself, his
wife or children under his authority;
(3) If he unduly refuses him support when the donee
is legally or morally bound to give support to the
donor.
o

The action for revocation of the donation by reason of

ingratitude may not be renounced in advance and
the same prescribes within a period of one year
counted from the time that the donor had knowledge
of the fact and it was possible for him to bring the
action. If it was possible for the donor to bring the
action but he did not institute the same, the right to
file the same is not transmitted to his heirs even if he
dies before the expiration of the one-year period.
If upon the death of the donor the one-year period
has not yet commenced to run because it was not
possible for the donor to bring the action during his
lifetime, the right to bring the same is transmitted to
the heirs upon the donors death. Neither may the
action be filed against the heir of the donee upon the
death of the latter, even if the latter should die
before the expiration of the one-year period.

(4) the fact that the donation is inofficious.

o
donations which exceeds the freely disposable
portion of the donors estate and thus impairs the
legitime of the compulsory heirs are inofficious and
subject to reduction with regard to the excess
o
mere fact that the donation turns out to be inofficious
at the time of the donors death does not result in the
automatic revocation of the donation. The provision
of Article 752, in relation to Article 771, is not selfexecutory. In other words, if no action for revocation
is filed, or if it is filed after the lapse of the
prescriptive period, the donation is forever
considered as valid.
o
Only those who at the time of the donors death have
a right to the legitime and their heirs and successors
in interest may ask for the reduction or revocation of
inofficious donations
o
When a donation is found to be inofficious, the same
will be reduced to the extent necessary to satisfy the
legitimes of compulsory heirs who were prejudiced
by such donation.
o
If there are two or more donations and the disposable
portion is not sufficient to cover all of them, those of
the more recent date shall be suppressed or reduced
with regard to the excess.
o
If they are of the same date, they shall be reduced
proportionately.
o
As in the case of revocation of donations for any of
the causes stated in Article 760 and by reason of
ingratitude, when the donation is reduced because it

is inofficious, the donee shall not return the fruits

except from the filing of the complaint.
The donation may likewise be reduced based on the following
grounds:
(1) that the donor did not reserve sufficient property for his
own and his familys support;
(2) by the subsequent appearance of children; and
(3) that the donation is inofficious.
Effects of Reduction or Revocation of Donation Upon the
revocation or reduction of the donation based on Article 760,
the following effects are produced: (1) The property affected
shall be returned, or if it cannot be returned, at least its
value;276 (2) If the property is mortgaged, the donor may
redeem the mortgage, by paying the amount guaranteed,
with a right to recover his payment from the donee.277 When
the property cannot be returned, it shall be estimated at what
it was worth at the time of the donation.278 (3) The donee
shall return the fruits of property affected only from the fi ling
of the complaint.279
Roman Catholic Archbishop of Manila Et. Al v. CA(supra)
HELD:
Although it is true that under Article 764 of the Civil Code an
action for the revocation of a donation must be brought within
four (4) years from the non-compliance of the conditions of
the donation, the same is not applicable in the case at bar.
The deed of donation involved herein expressly
provides for automatic reversion of the property
donated in case of violation of the condition therein,
hence a judicial declaration revoking the same is not
necessary.
When a deed of donation, as in this case, expressly provides
for automatic revocation and reversion of the property
donated, the rules on contract and the general rules on
prescription should apply, and not Article 764 of the Civil
Code.

Evelyn De Luna v. Hon. Abrigo Et. Al

In 1965, Prudencio de Luna donated a portion of his
lot to the Luzonian Colleges, Inc. The donation was
subject to certain terms and conditions and provided
for the automatic reversion to the donor of the
donated property in case of non-compliance. The
donee failed to comply with the conditions of the
donation.
On April 9, 1971, however, the donor revived the
donation in favor of the donee. As in the original
deed of donation, the revived deed of donation also
provided for the automatic reversion to the donor of
the donated area in case of violation of the
conditions thereof. In the revived deed, the donor
imposed upon the donee the obligations to construct
a chapel, a nursery and a kindergarten school in the
donated property within five years from the
execution of the deed of donation.
Claiming that the terms and conditions of the
donation were not complied with by the donee, the
heirs of the donor (who died on August 18, 1980)
filed an action for the cancellation of the donation on
September 23, 1980.
The trial court, however, dismissed the action on the
ground that more than four (4) years had already
lapsed from April 9, 1976 when the action was filed.
The trial court based its decision on Article 764 of the
New Civil Code. The heirs of de Luna elevated the
matter to the Supreme Court.
In reversing the decision of the trial court, the Court
explained It is the finding of the trial court, which
is not disputed by the parties, that the donation
subject of this case is one with an onerous cause. It
was made subject to the burden requiring the donee
to construct a chapel, a nursery and a kindergarten

school in the donated property within five years from

execution of the deed of donation. Under the old Civil
Code, it is a settled rule that donations with an
onerous cause are governed not by the law on
donations but by the rules on contracts, as held in
the cases of Carlos v. Ramil, L-6736, September 5,
1911, 20 Phil. 183; Manalo v. de Mesa, L-9449,
February 12, 1915, 29 Phil. 495. On the matter of
prescription of actions for the revocation of onerous
donation, it was held that the general rules on
prescription applies. (Parks v. Province of Tarlac,
supra.). The same rules apply under the New Civil
Code as provided in Article 733 thereof which
provides: Art. 733. Donations with an onerous cause
shall be governed by the rules on contracts, and
remuneratory donations by the provisions of the
present Title as regards that portion which exceeds
the value of the burden imposed. It is true that
under Article 764 of the New Civil Code, actions for
the revocation of a donation must be brought within
four (4) years from the non-compliance of the
conditions of the donation. However, it is Our opinion
that said article does not apply to onerous donations
in view of the specific provision of Article 733
providing that onerous donations are governed by
the rules on contracts. In the light of the above, the
rules on contracts and the general rules on
prescription and not the rules on donations are
applicable in the case at bar. xxx xxx xxx
The trial court was therefore not correct in holding
that the complaint in the case at bar is barred by
prescription under Article 764 of the New Civil Code
because Article 764 does not apply to onerous
donations. As provided in the donation executed on
April 9, 1971, compliance with the terms and
conditions of the contract of donation, shall be made
within fi ve (5) years from its execution. The
complaint which was fi led on September 23, 1980
was then well within the ten (10) year prescriptive
period to enforce a written contract (Article 1144[1],
New Civil Code), counted from April 9, 1976. xxx xxx
xxx

[COMMENT: The problem with the ruling in De Luna is that it

renders inoperative the provision of Article 764 of the New
Civil Code. If Article 764 indeed speaks not of conditions as
the Civil Code defines it but rather of charges or burdens
imposed by the donor upon the donee, in which case the
donation being referred to in Article 764 is an onerous one,
the provision of Article 764 must be considered an exception
to the rule in Article 733 providing that onerous donations are
governed by the rules on contracts. After all, it is a basic rule
in statutory construction that when there is a conflict between
a general law and a special statute, the special statute should
prevail since it evinces the legislative intent more clearly than
the general statute and that the special law is to be taken as
an exception to the general law in the absence of special
circumstances forcing a contrary conclusion.288 It is obvious
that the four-year prescriptive period specifically provided for
in Article 764 is to be considered as a special law compared to
the general rules on prescription resorted in the De Luna
case.]
Prescriptive Period To Revoke Donation
The Civil Code specifies the following prescriptive periods of
actions for the reduction or revocation of donations inter
vivos:
(1) four years, in cases of subsequent birth, appearance,
recognition or adoption of a child;
(2) four years, for non-compliance with conditions of the
donation;
(3) one year, for reason of ingratitude; and
(4) at any time during the lifetime of the donor and his
relatives entitled to support, for failure of the donor to reserve
property for his or their support. Interestingly, donations the
reduction of which hinges upon the allegation of impairment

of legitime are not controlled by a particular prescriptive

period.
Eloy Imperial v. CA
In Imperial v. Court of Appeals, the Supreme Court held that
an action for reduction or revocation of an inofficious donation
prescribes in ten (10) years following Article 1144 of the New
Civil Code. From when shall the ten-year period be reckoned?
Since the cause of action to enforce a legitime accrues only
upon the death of the donor-decedent for it is only then that
the net estate may be ascertained and on which basis, the
legitimes may be determined, the ten year period commences
to run only upon the death of the donor-decedent.