PROPERTY anticipation.
The law already anticipates they subsequently becoming
ART. 415
MINDANAO BUS CO. VS. THE CITY ASSESSOR: SC held that the
industry is carried on in this building where the repair shop is located.
The transportation business is carried on outside, not here. The repair
equipment is not immobilized but remained personal property.
Can the parties agree that certain machinery which has been installed
by the owner of the tenement for the industry or works which will be
carried on and which tend the need of such industry works? Can the
owner of such machinery and a creditor agree to treat this machinery
as personal property? Subject them to chattel mortgage?
- YES. Principle of Estoppel would apply. Although the
machinery inside the building and installed by the owner and
they tend to meet directly the needs of industry / works which
may be carried on in that building, if the parties agree to treat
the machinery as chattel and enter into a chattel mortgage,
neither of the will be permitted to question the validity of chattel
mortgage later on the ground that the subject was actually real
property.
PAR. 6: if there is a pigeon house, permanently attached to the land,
the pigeons in the pigeon house are also considered real property. Of
course, pigeons sometimes fly around.
- Or in the case of fish ponds, the bangus (immovable even
swimming around).
- For purposes of sale, however, they are considered movable
property.
o So if you enter a contract of sale for the bangus on your
fish pond, that is not a sale of real property. It is a sale
of personal property.
- If you donate the bangus to someone, it is a donation of
personal property.
PAR. 7: Insecticides same rules should apply.
PAR. 8: the waters referred to are natural waters.
- So if you have several drums of water in your yard because
water in your area is scarce not covered by PAR. 8.
- Water in rivers, lagoons, lakes.
PAR. 9:
- A barge in a fixed place (real property even if its floating): as
long as it is at a fixed place.
- NAPOCOR and other private companies have these power
barges (dock along shore, port supply electricity to island
provinces): they remain there for a considerable period of time
REAL PROPERTY.
- Floating restaurants but remains at a fixed place REAL.
- BUT if it is actually a boat which take on passenger, and goes
on a cruise on Manila Bay, while cruising around, dinner is
served MOVABLE.
PAR 10:
ART. 416 417
Certain real property, by special provision of law are also considered
as PERSONAL PROPERTY.
- Example: growing crops: under certain provision of law are
movable/personal, CHATTEL MORTGAGE LAW, provision on
sales.
SIBAL VS. VALDEZ: While they are still growing, its a mobilization by
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
movable. So even before they are gathered, there is already
mobilization by anticipation and they can be the subject of a chattel
mortgage.
- Forces of nature which are brought under control by science:
nuclear power, wind power, electricity.
- Shares of stock in any corporation MOVABLE. Regardless
that the corporation which the shares are held has real property
or even when all of the assets of corporations consist of real
property.
CLASSIFICATION OF PROPERTY OF PUBLIC DOMINION or
PRIVATE OWNERSHIP
ART. 420
PUBLIC DOMINION: THOSE intended for public use, public service,
or for the development of the national wealth.
- Public use (roads, street, parks).
- Court: if it is open indiscriminately to the public, open for
everyone. Anyone can go there and use it (streets).
PROPERTY OF PUBLIC DOMINION CANNOT BE: (CSL-PAER)
1) The made the subject matter of contracts.
2) Sold.
3) Leased.
4) Acquired by prescription.
5) Attached and sold to public auction to satisfy any judgment.
6) Burdened by an easement.
7) Register or title them under your name under torrens title
system. If title is issued covering property of public dominion
not a valid title.
THE GOVERNMENT HAS PROPERTY OF 2 TYPES:
1) Patrimonial Property: just like ordinary property, they can be
subject of contracts.
2) Property of Public Dominion: as long as it remains such is
subject to special rules.
- Is it possible to convert property of public dominion to
patrimonial property? YES.
- Will a mere fact of property of public dominion is no
longer actually being used for public use or no longer
actually being devoted for public service, will that
automatically convert from public dominion into
patrimonial property? NO.
- There must be a formal declaration (by the executive or
the legislative) in the case of national government
property. Otherwise, it will remain property of public
dominion.
- Property of political subdivisions: conversion must be
authorized by law.
ROPONGGI CASES
- Involving the property of Philippines located in Japan, which
are given to us by way of reparation by the Japanese as part of
Reparations Agreement. They were originally intended for the
use of our Embassy, but never used for that purpose. After long
period of time, there was an attempt to sell the properties.
- SC: The mere fact that the properties in Japan have not been
actually used for their original purpose doesnt automatically
convert the property into patrimonial property.
- Still part of the public domain and consequently not available
for private appropriation or ownership until theres a formal
declaration on the part of government to withdraw it from being
such.
- Abandonment cannot be inferred. It must be definite.
Page 1 | Bantay
 - On the part of Local Government Entities (like the State):
properties are subdivided into properties for public use and
patrimonial property.
PUBLIC USE: it must be open indiscriminately to the public.
- In some cases, however, the SC in determining whether
properties of a government unit should be considered as public
or patrimonial, the SC has opted to apply the special laws
governing municipal corporations.
PROVINCE OF ZAMBOANGA DEL NORTE VS. CITY OF
ZAMBOANGA: we cannot possibly decide this case strictly along the
lines and parameters set by the Civil Code in determining what
properties are for public use and what properties are private. This
involves creation of a new government, carved out of former political
unit.
- In this case, and in other cases involving local government, the
SC instead considered the USE of the property.
- Whether it is for governmental purposes or not.
- As long as the property was used for governmental purposes, it
was considered property for public use / public property.
SALAS VS JARENCIO: In the absence of clear evidence as to the
source of the funds used in acquiring the property which was currently
being held by the local government unit, the presumption is that the
property / land came from the state.
- So if a LGU has a property = no clear showing of funds used or
as to how it acquired the property= presumption is the land
came from the state and LGU is holding merely in TRUST for
the state, for the benefit of inhabitants of the locality.
- If that is so, it cant be considered as patrimonial property; they
will still be public property.
- National Legislative is deemed to have absolute control over
this property.
- In some cases decided by the SC, it has been made clear that
LGUs cant enter into contracts and cant validly authorize by
means of ordinance, the awarding of contracts in a certain
streets in favor of private individuals for purposes of having a
flee market there.
- As long as the streets remain the street, its for public use and
therefore, it is beyond the power of local government unit to
deal with by means of contracts.
There is a case: LGU enters into a contract. A certain street was
converted into a flea market. The ordinance authorized it.
- SC ruled: IT CANT BE.
- What is quite clear from these cases is that while even under
Local Government code, LGUs unit are allowed to withdraw
certain streets when no longer necessary, to withdraw from
public use.
- They cant have their cake and eat it to. They cannot convert it
without actually withdrawing it from public use. They will still
maintain it as a street and at the same time operate it as a flea
market cannot be done.
- Di pwede yan. As long as they are not withdrawn from public
use, they remain property of public use and you cant at the
same time enter into contracts with private individuals who
intend to operate flee market. Kung gusto niyong iwithdraw,
iwithdraw niyo. That street will cease to be a street; only after
that can you deal with it as patrimonial property, but not while it
is a street.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
CHAVEZ VS PEA: There was this agreement between the Public
Estates Authority and Amari. Amari would reclaim certain submerged
lands, as payment, it would be paid with reclaimed lands.
- SC ruled: with respect to the reclaimed lands on Freedom
Island (157 hectares) which are covered by titles under PEA,
they are ALIENABLE lands of public domain.
- But they may only be LEASED NOT SOLD to private
corporations.
- They may be sold to Filipino Citizens.
- SUBMERGED AREAS: inalienable, outside the commerce of
man.
- Only after the PEA reclaimed them may the government re-
classify them as alienable and disposable lands, if no longer
needed for public service.
- The transfer of submerged land into Amari = VOID, since the
Constitution prohibits the alienation of our National Resources
other than the agricultural land of the public domain.
- There are many separate opinions on that case, but stick to the
main decision.
OWNERSHIP: traditional attributes (Rights of an owner):
1) Right to USE.
2) Right to THE FRUITS.
3) Right to CONSUME the thing but its use: does not mean right
to abuse.
4) Right to DISPOSE.
5) Right to VINDICATE/RECOVER.
LIMITATION ON THE RIGHTS OF OWNERSHIP:
- Comes from the State (Inherent powers of government: police
power, eminent domain, taxation).
- Imposed by specific provision of law (provisions of the CC
regarding easements).
- Imposed by person transmitting property (if I am donating
property to you, I may impose, in the Deed of Donation, certain
limitation on your use of the property, for example).
ART.429
DOCTRINE OF SELF-HELP: an owner or lawful possessor is allowed
by law the use of such force as may be reasonably necessary to repel
or prevent an ACTUAL or THREATENED unlawful deprivation or
physical invasion or usurpation of his property.
- Only reasonable force should be used.
- The doctrine can be invoked only at the time when there is
ACTUAL or THREATENED unlawful physical invasion, NOT
THEREAFTER.
- If property has already been taken by 3 rd person, you are NOT
ALLOWED to use force to get it back. You must invoke the aid
of judicial authorities.
GERMAN MANAGEMENT& SERVICE INCORPORATED: here was a
land owner, he wanted to develop his property, he executed a power of
attorney in favor of German Management service to develop such
property. German Management went to the property and discovered
that certain individuals are occupying and cultivating the property. So
German Management used physical force to oust these occupants
who are cultivating portions of the property. Later on they invoked the
doctrine of self-help.
- SC ruled: NOT PROPER, because it is not disputed that when
they tried to enter property, those occupants were already
there, they had been cultivating land for some time.
- A party in peaceable, quiet possession shall not be turned out
by a strong hand, violence or terror, according to the Court.
- WHEN THE DOCTRINE OF SELF-HELP CAN BE INVOKED:
ACTUAL and THREATENED dispossession. When possession
Page 2 | Bantay
 already lost, the owner must resort to judicial process for the
recovery of his property. He cannot take the law into his own
hands.
ART.430
The owner of the property has the right to enclose property with a
fence, a wall, or any other means.
CUSTODIO VS CA
- There was a property owned by a person. There was no fence
around his property so some of his neighbors were passing
through his land to reach the public road. Later on, the property
owner decided to enclose it with a fence. Consequently,
neighbor cant pass through his land and had to take another
route to reach the public street. They filed a case for damages.
- SC ruled: Damnum absque injurie.
- The property owner is simply exercising a right explicitly
granted to him by law: the right to enclose his property with a
fence. In a meantime, great inconvenience was caused to his
neighbors, but these neighbors have no legal right to claim
damages. Its just too bad.
- When the case was decided, there was no EASEMENT YET. It
was only after the case was decided that the Court said an
easement should be created and SC ruled that they should pay
indemnity.
- As long as theres no easement yet, you have perfect right to
enclose your property with a fence.
ART.431
A property owner has the jus utendi, the right to use his property
should be exercised in such a way as not to injure others.
- But the right to use ones property must be exercised in such a
way as not to injure others.
- Use your own as not to injure others.
In one case, there were two adjoining properties. The owner of the
higher property built certain artificial bodies of water: artificial lakes,
water pots, etc. Unfortunately, during inclement/bad weather, some of
these constructions were washed away and they fell to the adjoining
lower estate.
- SC ruled: DISMISSED.
- The case should be reinstated. Applying Art.431, while you
have the right to use your property, you have to use use your
own as not to injure others.
- Obviously, the Court considered the construction of artificial
bodies of water on the higher estate as something which
causes, during bad weather, some damage or prejudice to the
adjoining lower estate.
ART.432
EMERGENCY DOCTRINE/RULE
- If you are the owner of a thing, you have no right to prohibit the
interference of another person with your property as long as
the interference is necessary to prevent an imminent danger
and as long as the threatened damage or injury is greater
(much greater) than the damage which would arise to you from
the interference with your property.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
- The view has been advanced, to which I agree, that negligence
on the part of the person interfering has not preclude resort to
the rule.
If for example, while I was using my CAR, another vehicle owned and
driven by X (recklessly slammed into a Meralco post), started to burn.
- Under this article, Mr.X (even though negligent in driving his
car) would have the right to interfere with my property if I
happen to have a fire extinguisher, I dont have a right to
prohibit the interference to use the fire extinguisher. His
negligence doesnt preclude him from invoking the rule under
Art. 432.
- Obviously, any possible damage of my fire extinguisher is
lesser than the damage which would result to the burning of his
car.
- The requirements of this article are ment.
ART.433
Actual possession under claim of ownership raises a disputable
presumption of ownership. The true owner must resort to judicial
process for the recovery of the property.
ART.434
Action to recover requisites:
1) Property must be identified.
2) Plaintiff must rely on the strength of his title and not on the
weakness of the defendants claim he who alleges, has the
burden of proof.
ART.435
Reinstatement of Constitutional Law: one of the inherent powers of the
state.
- Power of eminent domain: property may be taken for public use
as long as there is payment of just compensation.
ART.436
Police power: the moment the state/government exercises it, then
property rights must necessarily yield.
- If property was taken, damaged or destroyed as a
consequence in the exercise of Police Power, there is no right
to any indemnity. The only possible indemnity you get is the
feeling of satisfaction that somehow you have contributed to
the common good.
ART.437
The owner of the property is the owner not only on its surface but of
everything under it.
- Of course, that doesnt necessarily mean that everything to be
taken under it should be literally construed.
- Exception: if there are minerals, they do not belong to you. That
belongs to the State (Regalian Doctrine).
- Up to what depth that a person can be the owner on what is
beneath your land? Does that extend up to the middle of the
earth? RULE OF THUMB: it extends up to such depth that you
can still make use of it.
MPC VS IBRAHIM
- In this case, it would seem that it is quite deep, as far as the
view of the SC.
- Here was a property owner, unknown to him, the MPC
Page 3 | Bantay
 constructed a tunnel passing beneath his land because this
happened somewhere in Mindanao. MPC is drawing water
from Agos River, one of the big rivers there.
- -
So the property owner was not aware of the tunnel underneath
his land, constructed by the MPC. It was only much later when
he
ART.438
HIDDEN TREASURE: what is a TREASURE? It is any hidden and
unknown deposit of money, jewelry, or other precious objects, the
lawful owner of which does not appear (unknown owner; hindi alam
kung sino may ari).
- If you see your neighbor digging a hole on a parcel of land near
your house and hiding a jar full of jewelry = NOT HIDDEN
TREASURE. Alam mo kung sino ang nagbaon.
- The lawful ownership must not appear.
- The law enumerates money, jewelry, or other precious objects
(applying ejusdem generis rule, that should be limited to things
of similar nature).
- Therefore, this does not include minerals or oil = NOT hidden
treasure (owned by the state).
- RULE: Hidden treasure belongs to the owner of land, building,
or other property in which it is found.
o If it is found by another person (somebody other than the
owner of the land) by chance = to owner & to
finder rule (50-50).
o If found by a trespasser, he is NOT entitled to the rule
or any share.
- The law requires that the finding must be by CHANCE =
traditional meaning ascribed to this phrase is that the finding is
not intended / totally unexpected. The finding was not looking
for the treasure.
Supposing that a man has been given the usufruct of a parcel of land,
by his friend. And so he stayed there on that land, and one day there is
an old man who gave him what appears to be an old map (treasure
buried by pirates a long time ago), And so this usufructuary, believing
what was told to him by the old man, digs at the precise spot indicated
in that map. And true enough he finds hidden treasure. Will he be
entitled to the hidden treasure? Will his finding be considered as a
finding by chance?
- If you go by the traditional view, then it would seem that he
does not fall in this category, because he intentionally looked
for the treasure.
- But I think this logic and good sense in the view advanced by
other. According to them, when the law says by chance, that
should be interpreted to mean by STROKE of GOOD
FORTUNE.
- A lot of people had been engaged in the search for the
Yamashita Treasure (many books had been written for the
search of this treasure): many have tried but never located. So
even if you look for the treasure, there is no guaranty that youll
find one, even if you have a map.
- So if you do find one = finding is by a stroke of GOOD
FORTUNE (in that sense, a finding by chance).
- If the finder was precisely employed by the owner of the land to
look for treasure there, the finder will not be entitled to any
share under ART. 438. His remuneration will depend on the
contract for the work he would be undertaken (share/direct
compensation for the work which would be undertaken).
ACCESSION
ART. 440
General Rule: if you are the owner of the property by right of
accession, you are also entitled, you also own everything which is
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
produced by that property, or which is incorporated by that property, or
attached, either naturally or artificially.
The owner has the right by accession to everything produced,
incorporated or attached to that property.
VARIOUS KIND OF ACCESSION
ACCESSION DISCRETA: right given to the owner to everything which
is produced by that property.
- Subdivided into the 3 types of fruits which can be possibly
produced
1) NATURAL FRUITS: spontaneous products of the soil,
as well as the young or other products of animals.
o Ex. Animal manure, mushrooms not cultivated
usually after thunderstorm (some of these are
poisonous).
2) INDUSTRIAL FRUITS: produced by lands thru human
labor and cultivation.
o Ex. Mushroom produced/cultured in a farm.
3) CIVIL FRUITS: rents, price of leases of lands and other
property, life annuities and other similar income.
ACCESSION CONTINUA: the right given to the owner to everything
which is incorporated or attached to his property either naturally or
artificially.
WITH REGARD TO IMMOVABLE PROPERTY:
1) ACCESSION INDUSTRIAL (sub-classification of Accession
Continua): building, planting, sowing.
2) ACCESSION NATURAL: alluvium, avulsion (due to risk
exposed, they have right to recover-w/in 2 years), change of
river bed, formation of islands.
WITH REGARD TO PERSONAL OR MOVABLE PROPERTY:
adjunction/conjunction, commixtion/confusion, specification.
ART. 443
To the owner belongs all of the fruits.
- Dont forget however the rule in ART.443: he who receives the
fruits has the obligation to reimburse the expenses made by
another person in their production, gathering and preservation.
- NOTE: the law doesnt distinguish between people in good faith
or persons in bad faith, IT APPLIES TO EVERYONE.
- You might be in bad faith = but as long as you spent for
gathering, production and preservation of fruits, the owner who
is able to get back possession is obligated under ART.443 to
reimburse for the expenses incurred for the production,
gathering and preservation.
- ART.443 will not apply if fruits are not yet gathered. So if the
fruits are still ungathered = art.443 NOT applicable.
- Consequently, if you happen to be in bad faith and not yet
gathered fruits when lawful owner possessor recovers the
property form you Art.443 not applicable = you simply lose all
of these ungathered fruits.
o Applying the rules in: possessor, planters, sowers in BF.
o He who is in Bad faith loses everything he built, planted
or sown.
ART.445
It tells us when these rules on Accession with respect to immovable
property will apply or when it would not.
- Whatever is built, planted, or sown on land of another together
with improvements and repairs thereon shall belong to owner
of land.
- If I built, planted, or sown on my own land = no question
because I am the owner.
- You apply these rules is something is built, planted, or sown on
the land of another.
Page 4 | Bantay
 ART. 446
Everything all works of sowing & planting presumed is made by owner
and at his expense.
- Disputable Presumption, but a presumption just the same.
ART. 447
SCENARIO: Here is a land owner and he decides to build on his
property using materials of another person.
- I have a parcel of land. I built a house there, or any other thing,
but I used your materials.
- Of course, there are always TWO possibilities.
o He cant however avail the option if the value of land is
considerably more than the value of the building or
planting.
o Considerably more: if the value of land and value of
building or planting are more or less the same. or if the
difference of value is not too much, then the land owner
is not precluded of availing of that option.
o Difference of land should be considerable more that the
value of building, or planting.
o They can simply enter into lease agreement, and if they
didnt agree to the terms of lease, the court shall fix the
terms thereof, according to ART. 448.
DISTINGUISH PLANTER AND SOWER

GOOD FAITH BAD FAITH PLANTER SOWER

If I thought that I had the right to
use those materials. If I thought I
owned them.
MY OBLIGATION: I should pay
their value but I cannot be held
for damages.
If I knew that you were the owner
of those materials and despite
that knowledge, I still used them.
If I am in bad faith, then I have to
pay the value of the materials,
plus damages (to penalize me for
my bad faith).
Obviously, parehong nagtatanim yan.
Something that will last for years
and continue producing fruits year
after year, without having to re-
plant then, then you are a planter
(example: mango tree, coconut
tree).
If what you actually sow is
something which will not produce
fruits for a long period of time
(example: rice, you have to sow
rice again; BANANAS, as you
have to cut down the trunk).

THE RIGHTS OF THE OWNER OF THE MATERIALS: remove Land owner has the right to appropriate, but he has to pay proper
materials if possible to do so without injury to the work constructed. indemnity.

- In GF Limited removal of material: if possible to remove
materials without injury it means that its not the case of real
attachment.
- If B: remove materials in any case (land owner) aside your right
to damages.
Art.448
The law contemplates a land owner and somebody builds, plants or
sows on his land/property:
1. We have to determine whether builder, planter or sower is in
good faith or bad faith.
2. Determine also whether the land owner if he is in good faith or
bad faith.
o Where will be the land owner be in bad faith? If he knew
that somebody is building on his property and he
allowed the building to continue. Sige lang, magtayo ka
dyan. Tapos ka after a while.
o In good faith if he doesnt knew that somebody is
building on his land.
BUILDER, PLANTER OR SOWER: would be in good faith if he is not
aware of any defect or flaw in his title or mode of acquisition.
- The builder thinks he owns that lands or he thought that she
has legal rights to build thereon.
- If he was aware that he had no legal right to build on the
property, but he build, planted the same in bad faith.
RIGHTS WHEN BOTH THE LAND OWNER AND BUILDER ARE IN
GOOD FAITH
1) Landowner: can appropriate what has been built, planted or
sown on his land. Of course, he has to pay proper indemnity to
the planter, builder or sower.
2) In case of building and planting, the land owner also has option
of selling the land occupied by the building or planting to the
builder or planter.
- What is the indemnity? Supposing that the builder spent 500k
when he built at the time when land owner exercises his option
to appropriate, the building was already worth 5M. What is the
amount which will constitute proper indemnity?
o SC deiced: the market value at the time when the
indemnity is to be paid, although 500k was spent, since
at the time when the property is to be paid is worth 5M,
it is 5M which is to be paid by Land owner to the
builder.
- If land owner decides to appropriate, he has to pay indemnity
and prior to the payment of the proper indemnity to the builder,
the builder has the RIGHT OF RETENTION.
- If you are the land owner, Im the builder, and we are both in
good faith. You informed me that your option is to appropriate
the building, so the price of indemnity is 10M. Prior to your
payment 10M to me, I have the right to retain the building and
to continue occupying your land right of retention given by
law to me.
- PURPOSE OF RIGHT OF RETENTION: to ensure that I will be
paid the proper indemnity due to me.
- Supposing that during this period of retention, while you have
not yet paid me the indemnity, naghahanap ka pa ng pera
pambayad sa akin, the building is lost (fortuitous event).
o Net effect: Sorry na lang ako. Builder loses the right of
retention because you are not obligated as land owner
to pay for buildings or improvements which have
already ceased to exist.
- During period of retention, can the land owner demand from
the builder the payment of rent? NO, as long as the builder has
the right of retention brought about by the exercise of the land
owner to appropriate, he is not compelled to pay rent.
o Why? Because if he would be required to pay rent, that
will damage/ injure/negate his security for the payment
of indemnity.
- Supposing that the building I constructed in good faith in your
land is producing fruits. Lets assume that portions of the
building is being leased or rented out by me to 3rd persons who
is paying me rent during period when builder has right of
retention.

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 5 | Bantay
 o Who is entitled to the renters being paid by rentals? Can
renters be offset with indemnity due to me?
ORTIZ VS CAYANAN: involves a possessor in good faith, some
improvements for which he was entitled to indemnity. There was right
of retention because the indemnity has not been paid. During the
period when he had the right of retention, a detour was constructed
thru the property. One highway was being constructed / repaired by the
government. In the meantime, vehicles had to take the detour thru
property and tolls were collected (which was under right of retention).
- Can the tolls collected by the possessor who had the right of
retention (can the tolls he collected compensate with the
indemnity) that is due to him? YES.
- The right of retention is not merely a security, but rather a way
for the extinguishment of the obligation to pay indemnity.
PECSON: here, the SC said NO. If the fruits are collected by builder in
good faith during his period of exercising his right of retention, this
fruits/rentals cant be compensated with the indemnity due him
because he is the one entitled as a consequence of his right of
retention to the possession and tenancy of the property.
- He is also entitled to these fruits, so that there could be no
compensation between the fruits and the indemnity for the
simple reason that they are both due to him. They are both
belong to him.
- Under the law in possession, the moment the builder becomes
aware that he is not really the owner of the property, that there
is a defect in the mode or title of acquisition, then strictly
speaking, he is no longer in good faith and from that moment
on, under the law on possession, he is not entitled to the fruits.
BETTER VIEW (PERSONAL): he will still be entitled, as long as he
built in good faith. He should not be deprived of rights pertaining to
builder in good faith, one which is the right of retention even if
considerably, at some point, he is aware theres a defect or flaw in the
tile of his acquisition.
- He continues it; right of retention necessarily implies tenancy
and continued possession. As such he is still entitled still to the
fruits and there is no compensation between the fruits and the
amount of indemnity due to him.
THE OPTION IS GIVEN TO LAND OWNER, NOT TO THE BUILDER:
it is the land owner who decides whether he appropriates what has
been built or planted, or whether he will ask the builder or planter to
buy the land.
- Builder cant compel the land owner to simply sell the land
therein or at least the portion thereof to buy his building.
- He cant do that because the OPTION is NOT given to the
builder, but to the landowner by law.
DUPRA VS DUMLAO: why is the option given by the law to the
landowner? Because the right of the landowner is all there. It is
because he is the landowner.
- Can LO simply refuse either of the options under ART. 448?
NO.
- Sabi niya, ayaw ko nyan building mo.Pangit yang bahay mo: no
appropriation, not to sell the land. In short, he simply tells the
builder, lumayas ka, tanggalin mo building mo dyan dahil di mo
lupa yan. Can the land owner do that? NO. He cant just refuse
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
to exercise his option and simply ask for the removal of what in
good faith has been built or planted on his land.
- The options are limited to those on ART.448.
Supposing that the land owner avails or elects the option of selling his
land and the value of land is not considerably more than that of the
building. The builder, however, is NOT ABLE TO PAY (insolvent) for the
land.
- SC HELD: If this is the case, the LO can ask for the removal of
the building.
- If having opted to sell his land, not considerably more than
value of building, and the builder not able to pay then that is a
situation when the land owner can actually ask for the removal
of property or building.
OTHER REMEDIES AVAILABLE TO LO IF THIS IS THE CASE
(BUILDER IS UNABLE TO PAY):
1) Simply enter into a lease.
2) Land owner can ask for removal
3) Land owner can ask for the sale of both the land and the
building, the proceeds will first applied to the value of land. The
rest or the excess will be delivered to the owner of the house or
building.
PROBLEM: prior to the time that the land owner exercises his right of
option of either appropriation or sale (prior to his moment of decision),
the builder has been of course occupying the land of the land owner,
Can he be required to pay rent for his occupancy during that period
prior to the exercise by the land owner of his option? YES. He should
be
- The moment the land owner exercises his option to
appropriate, there arises the right of retention on the part of the
builder.
- From that moment, he cant be compelled to pay rent.
- If LO opts instead of appropriation his option is SALE of the
land to the builder, can rent be demanded for the meantime?
YES.
o Rent will have to be paid until such time when the land is
in fact acquired by the builder.
o If builder acquires the land, the builder becomes the
owner already and he simply doesnt have to pay rent
anymore.
These rules in accession on immovable property would not apply to a
situation where it is the land owner himself who builds or plants on his
property, because under the law, on the land of another.
- Now, having said that, it follows therefore that if a co-owner of
the property, builds, or plants on the property under co-
ownership, these rules would not apply because the co-owner
is the owner of ideal aliquot (fractional) share of the whole.
- Under the rule on co-ownership, the co-owner has the right to
use the property under co-ownership as long as he doesnt
prevent the co-owners from similarly using it.
- If something is built by a co-owner, these rules are not
available.
- HOWEVER, if co-ownership has already been terminated by a
partition of the property, and after the partition, it is discovered
that one of the co-owner (previous co-ownership) has built on a
part of the property which was later on adjudicated to another
co-owner, then the rules under ART.448 should apply. Pwede.
- Co-owner who had earlier built on the property under co-
ownership but a portion of whose building is discovered to
encroach upon the part adjudicated in the partition to the other
co-owner will have the rights of a builder in good faith.
o We are the two co-owners, and I built a building on that
piece of land. Later on, we agree to partition the
Page 6 | Bantay
 property. After partition, my building occupies some
parts allotted to you under our agreement, then ART.
448 will be applied. I will be considered as builder in
Good Faith w/ the same rights under ART.448.
The claim of good faith may be made by a successor in interest of the
original builder.
- Example: a certain land with a building standing thereon was
purchased by a buyer. Later on, upon the survey of the land, it
was discovered that a portion of a building encroached upon
the adjacent property.
o SC held: YES, the buyer can invoke good faith. Art.448
can apply.
- Example: There was a couple who bought a land from a
subdivision. When the couple decided to construct a house,
and they asked the representative of the subdivision owner.
They constructed a house, and it was discovered that the lot
was not theirs (nagkamali ng turo ng lote sa kanila). Can they
invoke the rights of builders in good faith? YES. Even if the
property involved is registered property.
o Both properties have titles: can you still invoke builder
in good faith if property is covered with Torrens Title?
YES. Because if you are just an ordinary person, you
are not expected, unless you happen to be an expert in
surveying, to know the precise boundaries. Even if your
property is covered by Torrens title. (UNLESS youre a
SURVEYOR- an expert in that field). Anong malay
natin.
o Though now we have GPS. But the rule still applies (in
good faith).
- The case is different when, for example, I built on a land in
Manila, when the owner scolded me, I just said sorry, thought I
have no title whatever. My property is in QC. I dont have
property in Manila. Can I claim Good Faith? NO. Mere
assertion that I thought I have legal rights to build on the
property is obviously a vagrant assertion because it has NO
VISIBLE means of SUPPORT.
Supposing that the builder is in bad faith, he loses everything and
becomes liable for damages.
- Land owner can demand that you buy his land, regardless of
the value, NO restriction needed (that it should be considerably
more, etc).
o If the building built was worth P1M and the land is worth
P5M, pwede ka.
- You can be compelled to buy his land. Pasaway ka. Kasalanan
mo.
- The land owner can demand the right of removal. Lumayas ka
sa lupa ko.
- You have NO RIGHT whatsoever, EXCEPT recovery of
necessary expenses for the preservation of the property.
o WHY? The land owner himself would have also incurred
necessary expenses even if Builder is the one who is in
possession of property.
o Fairness and basic justice.
ALL FRUITS BELONG TO THE PROPERTY OF THE OWNER.
Old case of Giving Bonus: certain land owner was asked by
certain land company to mortgage their property to secure for the loan.
And for the risk you are going to take, we will give you certain bonuses.
Pumayag (nag-mortgage ka). Binigyan ng bonuses. Are these
bonuses, FRUITS? NO, because they are not produced by the land.
Not even civil fruits.
Supposing that the land owner and the builder are in bad faith, they are
both considered to have acted in GF. So apply ART.448.
- Supposing that the builder used the materials of a 3rd person in
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
building on the land of another. A lot will depend on whether the
builder or owner are in good faith or bad faith, assuming they
are both in good faith and material owner are in good faith.
o Rights (owner of materials): can recover the value of
materials from the builder who used it but the land
owner can be held subsidiariliy liable for the value of
materials, in case the builder is unable to pay the owner
of materials their value.
o If however, builder is in bad faith, and consequently the
land owner demands removal or demolition of building,
remember that the land owner has no subsidiary
liability. REASON: in accession, he who benefits from
the accession must pay for it (underlying principle).
o Kung sino ang nakinabang sa accession, dpaat
magbayad.
o If land owner decides to appropriate the building- there
is subsidiary liability on his part in case the builder is
insolvent.
o If land owner decides to ask for removal or destruction
of the building. He doesnt (LO) benefit from the
accession, thats why theres no subsidiary liability on
the part of the land owner.
o If property is sold by the land owner pending payment
of indemnity of the builder? IT DEPENDS.
a. If in the contract of sale between the LO and 3 rd
person, the land owner was already paid not
just the value of the land but the value of the
building as well, then the land owner must pay
the value of building (the proper indemnity to
the builder).
b. If LO was not paid the value of the building,
then he doesnt benefit to the building. It would
be the buyer who will pay because the buyer
was the one benefited.
NOTE: he who benefits from the accession must be the one who will
pay for it.
ART.457
ALLUVION: if you are the owner of a land adjoining the bank of a river,
and due to the natural action of the water over a period of time,
deposits of river silt are left there by the water such that the area of
your land gradually increased year after year, you are the owner of that
additional area.
- Our ownership is automatic, as long as everything happens
natural. You did not construct a basin, or something. As long as
there is no human intervention.
- The additional area brought about by alluvion automatically
belongs to the land owner of that land by the banks of the river.
- It (additional area) is not however automatically registered or
covered, or protected by the Torrens title of the land owner. He
has to register it on his name.
- And if prior to his registration of that additional area, a third
person succeeds in occupying that area, claiming at as his
own, satisfies the requisite for acquisitive prescription, tapos.
That third person would have acquired ownership of that area.
- The increase in the area must be exclusively due to nature.
There must be absolutely no human intervention. Otherwise,
that is not alluvion.
- Insofar as areas bordering lakes are concerned, like Laguna de
bay. It is not a bay, it is a lake. Lakes are large bodies of water,
which usually have a connection to a river.
o If there are additional areas brought about by the action
of the water, or whatever, to whom will they belong?
They would belong to the owners of the adjacent lands,
applying the Spanish Law of waters.
- If you own a parcel of land, lets say in La Union, and through
the action of the sea, your land gradually increased in area sa
may tabing dagat. Who will own the additional area? That
belongs to the State.
o Alluvion is applicable to RIVERS or LAKES. It does not
include the shores of the seas.
Page 7 | Bantay
USUFRUCT: basic idea property is given to a person, is given the
right to use and enjoy the property with the basic obligation of
preserving its form and substance.
- You try to remember at least a few of the distinctions between
USUFRUCT and LEASE.
- If there are any ACCESSIONS:
For example, the property under usufruct happens to be a parcel of
land. Its located along the banks of a river and in the course of time,
the area increased because of ALLUVION.

- The usufructuary has the right to make use of the additional

USUFRUCT LEASE area.
- That is part of his right under ART. 571.

Always a REAL RIGHT. Not always a real right. It

Can be only created by a person
who owns the property.
becomes a REAL RIGHT only if
the period is more than one year
or if it is registered.
It can be created by somebody
who is not actually the owner of
the property (the lessee may
actually sublease the property).
- The usufructuary may decide to personally use the things,
personally enjoy it, or he may allow another person to enjoy the
thing under usufruct.
o All contracts entered into by the usufructuary with third
persons are CO-TERMINOUS with the usufruct, with
the exception of LEASE OF RURAL LANDS, which
shall be deemed to continue up to the end of the
agricultural year.
o PURPOSE: to allow the lessee who may be cultivating
the land to continue with the production and gathering.

MATTER OF ITS CREATION: Generally, the only possible
There are various ways of source of lease is the
creating a usufruct: CONTRACT Between the parties.
EXCEPT in the case of IMPLIED
1. By the law itself. NEW LEASE, or in the case of
2. By the will of a testator. FORCE LEASE (ART. 448).
- If the value of the land is
considerably more, then the
value of the building the
landowner cannot compel or
ask the builder to buy. They
must just enter into a
FORCED LEASE.
Usufruct imposes upon the usufructuary of preserving the form and
substance of the thing.
- BUT the law allows the grant of a usufruct over the entire
patrimony of a person.
o And when that happens, chances are in that patrimony,
there will be some properties which by their very nature
will deteriorate or will be impaired due to ordinary wear
and tear.
Supposing that what was given by way of usufruct is property which
gradually deteriorated through ordinary use, ordinary wear and tear,
like a car.

- If the usufruct is for 5 years, after 5 years, iba na yung kotseng

RIGHTS OF A USUFRUCTUARY:
1) You can use the property.
2) You are entitled to all of the fruits, whether natural industrial or
civil fruits.
3) Supposing there are hidden treasures there, insofar as that is
concerned, the law says the usufructuary is considered a
STRANGER.
o If somebody finds the hidden treasure, then the
usufructuary DOES not get any share of t.
o If it is the usufructuary himself who finds the hidden
treasure, then he may be entitled to of the hidden
treasure and the other half will go to the naked owner of
the property.
Can there be usufruct on CONSUMABLE THINGS?
Remember the provisions of the law regarding GROWING or
PENDING FRUITS:
- Those fruits which are growing or pending at the
commencement of the usufruct, will belong to the
USUFRUCTUARY.
o Does he have to refund to the naked owner the expenses
incurred so far? THERE IS NO NEED TO REFUND
THE EXPENSES.
- Those growing or pending fruits at the time of the END or
termination of the usufruct, will of course belong to the naked
owner.
o While the law says that they will belong to the naked
owner, the naked owner has to REIMBURSE the
usufructuary the expenses incurred by the latter.
o Or cultivation, seeds and other similar expenses.
- If the property under usufruct is TENANTABLE (pwedeng irent
out or ilease sa tenant), it is the usufructuary, NOT the naked
owner, who has the right to determine who will be the tenant of
the property.
yan. Ordinary use of the car will result in the ordinary wear and
tear.
- Can the usufructuary use the property? YES. Pwede pa din.
- What would be his obligation? He is simply obligated to return
the thing IN THE CONDITION IN WHICH IT MAY BE at the
time of termination of the usufruct.
- Of course, if the thing suffered damage or injury due to his
fraud or negligence, he is obligated to indemnify.
o If it is ordinary wear and tear, NO OBLIGATION. He
simply has to return the thing in the condition which it
may be found at the termination of the usufruct.
- Those which cannot be used in the manner appropriate to their
nature without them being consumed or used up.
- Can there be a usufruct on MONEY? Or RICE? YES, BUT
these are what are sometimes called ABNORMAL usufructs on
consumables, or quasi-usufructs.
- BUT I think the BETTER VIEW is as pointed out by some
commentators: if the object of a usufruct is consumable, in
effect, what you have is a SIMPLE LOAN.
o So what will be the obligation of the usufructuary? So he
uses and consumes, then he simply has the right to
return the or pay their appraised value at the time of
termination of the usufruct, IF they were appraised.
o If they were not appraised, he will have the obligation of
returning the same quantity and quality. OR pay their
current value.
That is one of the advantages of appraisal. At
least you only have to return the appraised
value if they were appraised.

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 8 | Bantay
Usufruct on FRUIT-BEARING TREES: the usufructuary cannot cut
down the trees, but he is allowed to use the trees which have been
uprooted by accident (dead trunks) he can use them but he has the
obligation to replace.
- He has the obligation to replace with new plants.
- EXAMPLE: santol, manga or star apple.
If there is something EXTRAORDINARY which happens, and the trees
have been uprooted or disappeared in such extraordinary number, that
it would be impossible or too burdensome to replace them, the
usufructuary may simply demand from the naked owner to clear the
land so that he can continue using the land, OR if he wants, he can
use them, but if he does, he will have the obligation to replace them
with NEW trees, pursuant to ART. 575.
Usufruct over WOOD LAND: the usufructuary is allowed to make as
ordinary felling and cutting as the owner was in the habit of doing, OR
in accordance with the customs of the place.
- REMEMBER: coconut land is not woodland.
o So hindi pwede magputol ng puno ng niyog ang
usufructuary.
Supposing the usufructuary introduces USEFUL IMPROVEMENTS, or
improvements for MERE PLEASURE / ornamental improvements on
the property over usufruct. Can he do it?
- YES, as long as he does not alter the form or substance of the
thing under usufruct.
- Can he demand reimbursement for the expenses he incurred?
NO. He cannot claim reimbursement for the expenses he
incurred for useful or ornamental improvements.
o BUT, he can set off the value of these improvements
against any possible liability for damages which he may
have inured.
OBLIGATIONS OF THE USUFRUCTUARY:
- At the START of the usufructuary, his TWO BASIC
OBLIGATIONS:
1) He must submit an inventory of the things under
usufruct.
o WHEN NOT REQUIRED: when no one will be
injured, provided the naked owner consents to
the non-submission of the inventory, in case the
naked owner waives the requirement for an
inventory, or if here is such a provision in a will
where the usufruct was created by will, or in the
contract creating the usufruct.
2) He must also give a sufficient security to guarantee
his compliance with his obligations as a usufructuary.
o WHEN FURNISHING OF SECURITY IS NOT
REQUIRED: when no one will be injured, when
there is express waiver from the naked owner, if
the usufructuary happens to be the donor of the
thing (sakanya nangyari, binigay niya, but he
reserves the usufruct of the property).
o In case of caucion juratoria, the promise under
oath. If there is a caucion juratoria, the
usufructuary is also not required to furnish a
security.
o What will be the LEGAL CONSEQUENCE if there
is FAILURE to provide security? We have the
provisions of ART. 586.
In that case, the naked owner may
demand that the immovable be placed
under administration, that the movables
be sold. That the public bonds,
instruments or credit be converted into
registered securities or certificates, and
that the cash and the proceeds of the
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
sale of the movables be invested in safe
securities.
The usufructuary, of course, will be
entitled to the interest on these SALES
of the movables, and the other proceeds
of the property under administration.
CAUCION JURATORIA: sometimes, it may happen that the
usufructuary is given the usufruct of certain properties (house,
furniture, equipment and tools), per walang wala. He does not have
money to get the necessary security.
- In that case, he may petition the court to allow him to make use
of the house so that he and his family can live there, that he be
allowed to use the furniture, that the tools and implements of a
trade be given to him so he can use it. So that he can earn
money.
- That may be granted by the Court upon the promise of the
usufructuary UNDER OATH (that he needs the property, that
he will take care of the property) as required by law.
A usufructuary, of course, is obliged to take care of the thing WITH
THE DILIGENCE OF A GOOD FATHER of a family.
- Supposing he fails in that obligation: he abuses the thing, he
misuses the things under usufruct. Will that cost the termination
of the usufruct?
o NO.
o REMEDY OF THE OWNER: the owner may simply ask
that administration be given to him, pursuant to the
provisions of ART. 610.
If the usufruct is constituted on a HERD of livestock, the law says he is
obligated to replace with the young thereof those which are lost due to
natural causes or due to the rapacity of beasts of prey
(mandaranmbong? Mga hayop na mabagsik).
Supposing that the usufruct is constituted on STERILE animals (mga
hayop na baog; di pwedeng manganak).
- What is the obligation of the usufructuary?
o Considered as if the usufruct was constituted on
fungibles.
o In other words, the usufructuary has the obligation to
pay their appraised value if they were appraised, or if
not, he has the obligation to replace them with the
same quantity and quality.
o OR pay their current value at the time of the termination
of the usufruct.
- A good example of a sterile animal would be a MULE (an
animal to carry things or cargo yung mga panahon ng cowbow
at indian).
o You produce a mule by crossbreeding a male donkey
with a female horse.
o That is sterile.
Who is responsible for REPAIRS?
- Distinguish between ORDINARY and EXTRAORDINARY
REPAIRS.
ORDINARY REPAIRS EXTRAORDINARY REPAIRS
The responsibility of the All other repairs.
usufructuary. He is obliged to
make these repairs. EXAMPLE: due to wear and tear,
but not indispensable for the
When considered as one: if it is preservation of the thing.
due to wear and tear AND it is
indispensable for the preservation Shall be, according to the law, at
Page 9 | Bantay
of the thing. the expense of the naked owner.
But the naked owner, take note,
REQUISITES: is NOT obliged to make the
extraordinary repairs.
1) Must be due to wear and
tear.
2) Must be indispensable for
the preservation of the thing.
Supposing the naked owners makes the extraordinary repairs. He
spends for them. What right would he have?
- Under the law, he would have the right to demand from the
usufructuary INTEREST (legal interest) on the amount he spent
for those repairs for the duration of the usufruct.
- He can demand legal interest.
- Supposing the repair is extraordinary indispensable for
preservation but not caused by ordinary wear and tear.
o EXAMPLE: the property under the usufruct is a house.
There was strong typhoon and the roof was blown
away.
o That is not due to ordinary wear and tear but that repair is
indispensable for the preservation of the property.
o Let us further assume that the naked owner does not
make that extraordinary repair.
In that case, since it is indispensable for the
preservation of the thing, the usufructuary may
make extraordinary repair.
What would be his rights, if the usufructuary,
under those circumstances, makes the extra
ordinary repair, then he may DEMAND from the
naked owner at termination of the usufruct the
increase in value which the thing may have
acquired as a consequence of the repair.
ANNUAL CHARGES AND TAXES which are considered lien on the
fruits charged to the usufructuary.
- REAL PROPERTY TAX on the land under usufruct, that should
be paid by the NAKED OWNER, not by the usufructuary.
If the usufruct is constituted on the whole patrimony of a person, and
the naked owner happens to have unpaid debts, is there an obligation
on the part of the usufructuary to attend those debts?
1) If there is no order from the owner to pay the debts, there is NO
OBLIGATION on the part f the usufructuary to pay those debts.
o EXCEPT if the usufruct was constituted in fraud of
creditors.
2) If there is an order from the naked owner for the usufructuary to
pay the naked owners debt, it is understood that he is
OBLIGATED to pay the debts EXISTING at the time the
usufruct was constituted.
o Only pre-existing debts must be paid.
o Applying the provisions of ARTs. 758 and 759.
HOW USUFRUCT IS DISTINGUISHED: take note of the provisions of
ART. 603.
1) The DEATH of the usufructuary generally terminates the
usufruct.
o What about the death of the naked owner? It DOES NOT
terminate the usufruct.
2) MERGER would also result in termination of the usufruct.
o If there is merger of both the usufruct and the
ownership of the same property in the same person,
then the usufruct is necessarily terminated.
3) TOTAL LOSS of the thing.
4) TERMIANTION to the right of the person constituting the
usufruct.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
If A gives B a usufruct over a parcel of land and during the existence of
the usufruct, As rights are declared by final judgment of a court to be
null and void. A is not really the owner.
- Then, that is an example of a situation where the usufruct will
be terminated by the termination of the rights of the person
constituting the usufruct.
5) RENUNCIATION on the part of the usufructuary.
o Does a renunciation require the consent of the naked
owner? The better view is that NO. He does not.
If the loss is not total but PARTIAL, needless to state, the usufruct
CONTINUES on the part of the thing has not been lost.
- In the case of MULTIPLE USUFRUCTS, it is only upon the
death of the LAST usufructuary that the usufruct is terminated.
Supposing that the usufruct is granted for the number of years that
would elapse before a person would reach a certain age:
Let us say A gave B a usufruct today until X reaches the age of 40.
And X is only 30 years old today.
- So the usufruct is supposed to last for how long? 10 years.
- Supposing X dies after 5 years. Will the usufruct terminate?
o NO. It continues until the year when he is supposed to
reach 40, after ten years.
o UNLESS the usufruct was granted only in consideration
of the existence of X, in which case, it would terminate
upon the death of X.
-
ART. 607: take note.
- TWO SITUATIONS contemplated here:
1) Usufruct is constituted on both the land and the
building.
o The building is destroyed. Whats the
consequence?
The usufruct over the land continues.
o Usufructuary has the right to continue using the
land he has the right to make use of the
materials.
o If the naked owner wants to rebuild, his decision
is subject to the concurrence/consent of the
usufructuary because his usufruct is over both
land and the building.
2) If the usufruct is constituted on the building ONLY, not
expressly covering the land, and the building is
destroyed, then the usufruct on the building ends.
o But the usufructuary can still make use of the
materials.
o The usufructuary is also entitled to the continuous
use of the land because although the land was
not express included in the usufruct the
usufruct was given only over the building of
course, a building cannot be floating on thin air.
So when he was granted the usufruct of
the land, necessarily, kasama din dun
ung pinagkakatayuan nun.
It necessarily included his right to make
use of the land on which the building
stands.
o If the naked owner rebuilds, he has the obligation
to pay the usufructuary interest, not only on the
value of the materials, but also on the value of
the land.
Page 10 | Bantay
Why interest, including land? Because
even if the usufruct expressly covered
only the building, it necessarily included
the use of the land, for building cannot
float.
obligation of allowing something doing something which otherwise
to be done, or of doing it himself. he could lawfully do, were it not
for the existence of the easement.

If the property under usufruct has been EXPROPRIATED, what will be CONTINUOUS EASEMENT: an easement of drainage, abatement of a
the legal consequence? dam, light and view.

- The naked owner has the OBLIGATION to either:
1) Replace it with another property of the same kind and
value, or
2) Depending upon the naked owner, he can simply pay
the usufructuary interest on the indemnity paid to him.
- They continuous to be in use even if there is nobody making
use of it. Its there so its continuous.
DISCONTINUOUS EASEMENT: right of way, for it is impossible for a
man to continuously walk to and fro through the right of way, 24 hours
a day/ 7 days a week.

LOCSIN VS. VALENZUELA: this was precisely the ruling of the - Its use depends upon human intervention upon the right of
Supreme Court in this case. man.

- Where the property under the usufruct was taken under PD 27 APPARENT EASEMENT: if the right of way is a PERMANENT right of
(given to the tenant). way, there is permanent road there, that is apparent.

- Abatement of a dam: you can see it.

EASEMENTS: important points to remember: - An easement of aqueduct by express legal provision is always
considered continuous and apparent.
- DISTINCTIONS between EASEMENT and LEASE: o It can be acquired by prescription.

NON-APPARENT EASEMENT: the easement of ALTIUS NON

EASEMENT LEASE TOLLENDI, if there is such an easement, you are not supposed to
build a certain height.

Always a real right.
You can only have it with respect
to IMMOVABLE / real property.
Real right only when more than - If you are the servient owner and there are people passing by
one year, registered. young property. There is nothing that will indicate that the
reason why you are not building beyond a certain point is
because there is an easement.
Including PERSONAL / movable o So it is non-apparent.
property.
POSITIVE EASEMENT: an opening made on a party wall, an
easement of light and view through a party wall.

- VARIOUS TYPES/CLASSIFICATIONS of EASEMENTS: - Because it imposes upon the owner of the servient estate the
obligation of allowing something to be done on the servient
estate itself.
1) COTINUOUS or DISCONTINUOUS:
NEGATIVE EASEMENT: the easement of light and view if you make
the opening on your own wall.
CONTINUOUS DISCONTINUOUS
- You wall facing the property of another, you make an opening,
as long as you comply with the requirements (notarial
If its use does NOT depend upon If its use depends upon the acts prohibition).
the acts of man. of man. If it is only used in o REASON: the adjacent owner, the owner of the servient
intervals. estate will be prohibited from doing something which
lawfully, he could do, were it not for the existence of the
easement.

What is that? Block your light and view.
2) APPARENT or NON-APPARENT:
An easement is INSEPARABLE from the estate to which it either
actively or passively belongs.
APPARENT NON-APPARENT
- You cannot alienate an easement separately from the estate to
which it belongs, either actively or passively.
- It is inseparable from that estate.
If there is an external sign which If there is no visible indication of
continually keeps it in view and its existence. reveals its use and
HOW MAY EASEMENTS BE ACQUIRED?
enjoyment.
1) BY TITLE:
2) BY PRECRIPTION:
3) POSITIVE or NEGATIVE:
REMEMBER: only continuous and apparent easements may be
acquired by prescription.
POSITIVE NEGATIVE
- Discontinuous easements, or non-apparent ones can only be
acquired by title, not by prescription.
-That is the reason why an easement of right of way cannot be
When it imposes upon the owner If it prohibits and prevents the acquired by prescription, for it is DISCONTINUOUS.
of the servient estate the owner of the servient estate from

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 11 | Bantay
 o It may sometimes be apparent, and non-apparent, but it
is ALWAYS discontinuous.
- Even a RAILROAD EASEMENT is still considered as
DISCONTINUOUS.
PRESCRIPTIVE PERIOD FOR ACQUIRING EASEMENT: TEN
YEARS.
- When does the period start to run?
a. POSITIVE EASEMENTS: on the day in which the
owner of the dominant estate started to exercise it upon
the servient estate.
o So if the opening is made on a party wall, thats a
POSITIVE EASEMENT.
o From the day the opening is made, the ten-year
period starts to run.
b. NEGATIVE EASEMENTS: the ten year period will start
to run only from the date when there is a NOTARIAL
PROHIBITION on the owner of the servient estate.
o If A makes an opening in your wall facing Bs
property, A has to serve B with the notarial
prohibition, telling him o, do not block my light
and view. Then the ten-year period will start to
run.
o Only then: upon service of the notarial prohibition.
ART. 624: when there is an apparent sign of an easement between two
estates, established and maintained by the owner of both, and these
two estates are disposed of, either or both of them are alienated in
favor of others, and at the time of the alienation, nothing to the contrary
is provided for in the contract or agreement, nor are these apparent
signs of an easement removed, then upon the alienation of either or
both of the two estates, these apparent signs will be considered as
TITLE.
- This would enable the easement to continue after the
alienation.
- EXAMPLE:
GARGANTOS VS. TAN YANON: lot 1 and lot 2, both owned by X. On
lot 1, there is a house and there are big windows facing lot 2. Lot 1 was
sold to A and lot 2 was sold to B. at the time of the sale, nothing was
said about removal or any easements, the big windows were not close,
sige lang.
- One year later, B is trying to build on his property. A told him I
have an easement of light and view. If you want to build on
your property, you have to observe 3 meters. B replied, wait,
where is your notarial prohibition? How could you possibly
acquired an easement of light and view, when you never
served any notarial prohibition in me.
- Who would be correct? A, applying the provisions of ART. 624.
o The existence of those big windows is an apparent sign
of an easement in favor of this property.
o Since that apparent sign was not removed at the time
when these properties were alienated by the former
owner, they will now be considered as TITLE and the
easement will be allowed to continue.
ART. 626: new provision.
- According to most commentators, including the members of the
Code Commission, is intended precisely to counteract a
previous ruling of the Court.
- Under a previous ruling of the SC:
VALDERAMA VS. NORTH NEGROS CENTRAL: there was a sugar
mill. It had an easement of right of way over intervening estate so that
it could transport the sugarcane of sugar planters located farther on.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
- SC: if there are new sugar planters who would also want their
sugarcane milled in that mill, then the sugar mill can also use
the same right of way to transport the sugar cane.
- According to most civilists, including the members of the Code
Commission, that decision is wrong.
- Under the present article, the owner of the dominant estate
CANNOT use the easement EXCEPT for the benefit of the
movables originally contemplated.
o Neither can he exercise the easement in any other
manner than that previously established.
- Precisely to correct that former ruling.
- The milling company cannot use the same right of way to
transport the sugar cane of other additional planters who were
not contemplated when the easement was earlier established.
RIGHTS AND OBLIGATIONS OF THE OWNERS OF DOMINANT
AND SERVIENT ESTATE
- Expenses on the maintenance of the easement: borne by the
OWNER of the DOMINANT estate.
o The owner of the servient estate, if it becomes apparent
later on that the location or manner of use of the
easement is turning out to be very, very inconvenient to
the owner of the dominant estate, may PROPOSE
change in the manner or location of the easement.
o If there are several dominant estates, they will have to
contribute proportionately to the maintenance of the
easement.
ART. 631: MODES OF EXTINGUISHING EASEMENT:
1) MERGER: of the ownership of the dominant and servient
estates.
o That will result in the termination of the easement.
o The merger must be a permanent one, not simply a
temporary merger.
o If only TEMPORARY, like when the owner of the
dominant estate sells his estate under pacto de retro to
the owner of the servient estate, the easement isnt
extinguished. It is merely SUSPENDED. Upon the
exercise of the right of repurchase, it will obviously be
revived.
2) RENUNCIATION by the owner of the dominant estate.
3) NON-USER for TEN YEARS.
4) If either or both of the estates fall into such condition that the
easement could not be used.
o But the easement will revive if the conditions improved,
unless in the meantime, prescription has already set it.
LEGAL EASEMENTS: easement relating to WATERS.
- Lower estates are obliged to receive the water, including the
solid and other materials which naturally flow from the higher
estate.
o As long as everything happens naturally; no human
intervention when it rains, then there were rocks and
waters which flows to the lower estate, there is no
obligation to indemnify.
- If there is human intervention, HOWEVER, like when the owner
of the higher estate drew water from a river, uses the easement
of aqueduct and transport the water to his estates, uses it for
some business or industry, then the water falls to the lower
estate there would be an obligation to pay the indemnity.
EASEMENTS APPLICABLE TO THE BANKS OF RIVERS AND
STREAMS: these had been modified by ART. 51 and 52 of the Water
Code.
- Under ART. 51, the width of the area covered by the easement
for the benefit of recreation (this is included), navigation
Page 12 | Bantay
 floatage, fishing and salvage, the area depends upon the
location.
1) URBAN AREA: width of the easement is only THREE
METERS.
2) AGRICULTURAL AREAS: the width is much wider,
TWENTY METERS.
3) FOREST AREAS: the width is actually FORTY
METERS.
EASEMENT OF RIGHT OF WAY: you can demand an easement of
right of way if your estate has no adequate outlet to a public street or
highway.
- REASON: it is surrounded by other immovable belonging to
other persons.
- The outlet of a public highway must be an ADEQUATE outlet.
ENCARNACION VS. CA: SC held in this case that where the outlet to
a public highway is through a riverbed, a dried riverbed not
considered an adequate outlet.
- REASON: during the rainy season, di ka makadaan dun.
Maybe during the dry season and el nino, that riverbed is dry.
But when it rains, then the outlet disappears.
- As long as there is an outlet, however, even if it is a very
inconvenient outlet, like a bakobakung daan at pag maulan
maputik, and it is considered an ordeal to traverse the outlet
still considered an ADEQUATE outlet.
o You cannot demand a right of way through another
estate.
o Mere inconvenience does not justify the demand for a
right of way, as long as there is already an outlet.
INDEMNITY TO BE PAID TO THE OWNER OF THE SERVIENT
ESTATE:
- If PERMANENT right of way: the indemnity to be paid will have
to be the value of the land occupied by the passage + any
consequential damages.
- If NOT a PERMAMENT road, which simply involves walking to
the property of another: indemnity will be whatever damage will
be caused to the servient estate as the consequence of the
passage.
DETERMINATION OF LOCATION RIGHT OF WAY WILL PASS
THROUGH THE SERVIENT ESTATE:
- TWO FACTORS TO CONSIDER:
a. DISTANCE
b. AMOUNT OF DAMAGE OR PREJUDICE to the
servient estate.
- Between the two, the one which should be given preference is
the factor of the amount of damage.
In one case, a right of way had to be established through the servient
estate. If a straight path or road will be taken to the public highway, that
will involve the demolition of a sari sari store, or a building. If the right
of way will take a longer route however, it will involve the cutting down
of an avocado tree.
- SC: there is no other choice. We will choose the latter as it is
least prejudicial to cut down the tree than to demolish the
building if the line will be direct.
- So between distance and mount of damage, it is the amount of
damage which is given preferential consideration in
determining where the right of way will pass.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
If the owner of property sells it, and after the sale he realizes that he is
now surrounded by the property he sold, he does not have any outlet
to public highway, can he demand a right of way?
- YES. Does he have to pay indemnity? YES.
- BUT if he donated it, he can simply demand the right of way.
He does not have to pay any indemnity.
o Reason: he donated it already. When he does not have
an outlet, he should be given a free right of way.
- REVERSE SITUATION:
A sold a property to B. The suddenly, B realized that such property was
surrounded by other properties belonging to A there is no outlet.
Can B demand a right of way?
- YES. Indemnity? NO.
- Supposing it is NOT a sale. A donated property B. After the
donation, B realized that such property was surrounded by the
other properties belonging to A. can B demand a right of way?
o YES. Indemnity? YES, because this is a donation.
o You have to apply different rules to donors and sellers of
property.
LEGAL CONSEQUENCE if after a right of way has been demanded
and constituted, the government demands another public road in such
a way that the servient estate now has ANOTHER direct access to a
public street or road:
- Is the easement over the servient estate, which was earlier
created when the new road was not yet in existence, be
automatically terminated?
o NO, it will not be automatically terminated.
o It will only be terminated if DESIRED by the owner of the
servient
estate.
The option is given to him.
If he desired to have that easement of right of
way be terminated, he will have to RETURN the
earlier indemnity which he had received (NO
interest).
Maybe why that is one reason why the owner of
the servient estate may not want to terminate
the easement.
Its not automatically terminated as it depends on the
will of the servient estate.
o The owner of the dominate estate cannot demand the
termination of the easement.
That option is only granted to the owner of the servient
estate (ART. 655).
EASEMENT OF A PARTY WALL: this is the easement if there is a
dividing wall between two estates.
- PRESUMPTION: that is a party wall.
- In an easement of party wall, which is the dominant estate,
which is the servient estate?
o The servient estate is the party wall itself.
o The dominant estates are the two adjoining owners.
- ANOTHER PRESUMPTION: whenever there is a dividing wall,
that wall is party wall UNLESS there are external signs which
would indicate that it is not actually a party wall.
o Examples: if the wall is standing exclusively, entirely on
the lot of one of the parties not a party wall.
o If it is straight on one sight and plumbed(?) on another
to the sight which is plumbed.
- Take note of the exterior signs contrary to the existence of a
party wall under ART. 660.
- Who is responsible for the maintenance?
o Both adjoining owners. They must contribute
proportionately to its maintenance.
o Supposing one of the adjoining owners wants to
increase the height or width of the party wall, can he do
it?
Page 13 | Bantay

YES. But he would have to shoulder theEASEMENT OF LATERAL AND SUBJACENT SUPPORT: if it is on
additional expenses a taller or thicker wall and the same plane (level), it is called easement of LATERAL support.
he has to provide the addition land needed for a
thicker wall.
o If one of the adjacent owners wants to exempt himself
from contributing to the expenses of maintenance, the
law allows him to renounce his part of interest in the
party wall, EXCEPT when the party wall supports his
building.
EASEMENT OF LIGHT AND VIEW:
- If you make an opening on a party wall, that is a POSITIVE
EASEMENT.
o Prescription starts to run from the time the opening was
made.
o Your neighbor has the right to close the opening. You
can open it again. It will be game of close-open. If he
let it open for ten years, he can no longer ask for the
closure. You have already acquired the easement of
right and view through that party wall through
prescription.
- If you make an opening on your own wall, in the case of
DIRECT views, you have to observe a distance of TWO
METERS.
o Oblique view: distance is less 60 cm.
- If you do not observe these distances (ART. 670), you cannot
open regular windows or openings on your own wall.
o If you do, your neighbor can ask for the closure of your
openings.
o What if you die from the low temperature and it will be
dark, under the provisions of ART. 669, the law allows
you to make REGULATED openings.
It must be limited in size: 30 cm2 the height
and length are 30 cm each.
Different from 30 sq. cm.
But you cannot use it to steal the clothes na
nakasampay of your neighbor for it can only be
placed at the height of the ceiling joist (beams
connecting the posts of buildings).
o If there are several floors of a building, each floor has
ceiling joist so at each floor, you can make such
regulated openings.
o The law also requires that there should be IRON
GRATINGS (rehas) embedded in the wall AND wire
screens.
So you cannot use it for stealing.
That is only to give you a little light and
ventilation (to avoid heat stroke).
- If your neighbor already has acquired an easement of light and
view against you, pasensiya ka, you cannot construct closer
than THREE METERS to the boundary line.
- INTERMEDIATE DISTANCES: the law makes a distinction
between TALL trees and SMALL trees.
o You are not supposed to plant trees very close to the
boundary line of your property.
o TALL TREES: distance of at least TWO METERS.
o SMALL TREES: FIFTY CENTIMETERS.
ART. 680: if the branches of the tree of your neighbors extend over
your property, you do not have the right to cut of those branches.
- You can just demand your neighbor to cut them.
- But from the invasion is from below (roots), then you can cut
them off.
- For branches extending over your property, it does not always
result to damage and injury.
o BENEFITS: sweet fruits on the branches extending to
your land.
o RULE: bawal pong yugyugn ung branch or sungkitin.
The law only gives you the right over the fruits that fall
NATURALLY.
EASEMENT OF NUISANCE: not really an easement simply a
restriction on property.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
- If one easement is BELOW, that would involve SUBJACENT
support.
VOLUNTARY EASEMENTS: read the provisions.
- If the property is under co-ownership, to impose an easement
on that property, ALL CO-OWNERS must give their consent.
- With respect to perpetual voluntary easements, if naked
ownership is vested in one person while the usufruct or
beneficial ownership is vested in another, you cannot impose a
perpetual voluntary easement without the consent of BOTH
OWNERS.
NUISANCE: basic concept of nuisance:
- It is anything, any act, condition, business, establishment
which:
1) Injures or threatens the health or safety of others.
2) A noise or offends the senses.
3) Shocks, defies or disregards decency or morality.
4) Obstructs or interferes with the free passage of any
street or body of water.
5) Hinders or impairs the use of property.
NOISE: can be a nuisance.
- A thing which offends or annoys the senses is categorically a
nuisance.
- A HUGE BILLBOARD which portrays a naked woman in all her
glory, maybe something which would qualify as a nuisance:
something which defies, disregards decency or morality.
o A HOUSE OF PROSTITUTION would obvious fall
under that category.
- When it comes to NOISE, as a nuisance, obviously, noise is
something which will IRRITATE most people.
o In determining whether a particular noise would justify
the award of damages to a property owner who
happens to reside in the vicinity, the test is NOT
whether that kind of noise will irritate a person of rather
sensitive nature.
We have varying levels of tolerance in so far as
noise is concerned. Some people are quite
sensitive so that they get very easily irritated by
any and all kinds of noise.
SC: we have to pay for certain things if we have
to live in communities, especially urban ones. If
you reside in Manila, there is bound to be a
certain amount of noise thats part of what you
have to pay for living in an urban community.
VELASCO VS. MANILA ELECTRIC COMPANY: there was a certain
doctor, Dr. Velasco, he was constantly irritated by a certain kind of
noise emanating from a Meralco substation, which happen to be
located near his property. So he sued for damages.
- SC: in determining whether there is justification / basis for the
award of damages, what we should consider would be the
STANDARD based on an ORDINARY PERSON of ordinary
sensibilities, not what would be irritating to somebody who is
very sensitive, because noise is something which we have to
really accept as a part of daily living in an urban setting.
- At any rate, in this case, studies were conducted and even
experts were consulted, and it was established that the amount
of noise emanating from that Meralco substation was really
HIGHER than the ambient noise in that neighborhood.
o Justified the award of damages to Dr. Velasco.
- REMINDER: it was also in that case where the SC said the
provision in the Civil Code on extra-ordinary inflation or
deflation of the currency (ART. 1250) cannot be used if the
obligation does not arise from contracts.
Page 14 | Bantay
 o WHY? The provision itself says currency stipulated.
o So if your obligation arises NOT because of contract,
but in the case of quasi-delict, there is no basis for
applying that provision.
o You cannot ask for the adjustment on award of
damages when it took so many years before the Court
had made its decision.
o Provision is only applicable if there is a currency
stipulated only from contracts.
If you construct a part of your house encroaches upon a public street
nuisance for it obstructs the free passage of the public street.
A nuisance may either be a PUBLIC NUISANCE or a PRIVATE
NUISANCE.
PUBLIC NUISANCE PRIVATE NUISANCE
If it affects either the entire If it does not affect the public at
community or a considerable large or it does not affect a
number of persons. considerable number of persons.
REMEMBER: DOCTRINE OF ATTRACTIVE NUISANCE
- Simply stated, if you are the owner of a property and on that
property, you maintain a dangerous thing or equipment, which
is liable to attract children, and you do not take necessary
precautions to prevent children, especially those of tender
years, from getting injured, you are LIABLE for damages if a
child is injured by your appliance or equipment even if
technically speaking, the child is a trespasser.
Let us say A has in his yard a huge industrial fan because you needed
it for some centralized air conditional unit. You know when children see
something rotating, they tend to touch them.
- If a child gets injured because of that, you will be liable under
the doctrine of attractive nuisance even if the child was
technically a trespasser.
HIDALGO ENTERPRISES VS. BALANDAN: a swimming pool is not
an attractive nuisance.
- REASON: a swimming pool, according to the ratio of this case,
is simply an IMMITATION of nature.
- The owner will not be liable even if there were no guards on the
premises and a child of tender years should drown in that pool.
CLASSIFICATION BETWEEN NUISANCE PER SE AND NUISANCE
PER ACCIDENS
NUISANCE PER SE NUISANCE PER ACCIDENS
A nuisance will would be a It becomes a nuisance only
nuisance in any or all depending on the location or the
circumstances. circumstances.
Example: a house of prostitution. Motel, patis factory, leather-
tanning factory
.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
There was town in Bulacan engaged in the leather-tanning industry.
There was a time na papasok ka pa lang dun, naamoy mon a ung
ibang amoy.
- Merely a nuisance per accidens, not a nuisance per se.
JUSTICE CRUZ: he could not quite reconcile to himself with the fact
that when he took the bar examinations, there was a question involving
a patis factory. And I think the ultimate issue in that question was WON
hat patis factory was a nuisance per se or a nuisance per accidens.
- Of course his answer was based on the conclusion that such
was only a nuisance per accidens but it would seem that he
was not given high mark with respect to that question and it
would seem that the examiner during that time thought that a
patis factory was a nuisance per se.
- Which only tells us that even bar examiners can be incorrect in
their conclusions.
- That is one reason why after the bar examinations, every year,
there are certain groups which submit suggested answers to
the Chairman, the UP Law Center and PAL do that because it
is possible that the examinations appreciation is incorrect in his
own question.
Mere lapse of time does not legalize any nuisance.
- It does not matter that that nuisance has been going on for
many years does not become legal simply because it has
existed for many years.
REMEDIES AVAILABLE AGAINST A PUBLIC NUISANCE AND
PRIVATE NUISANCE:
PUBLIC NUISANCE PRIVATE NUISANCE
There may be prosecution under
the RPC; there may be a civil
action for damages; there may be
abatement without judicial
proceedings.
RE: abatement without judicial
proceedings that remedy is
available only if it is a nuisance
per se. That cannot be availed of
if it is merely a nuisance per
accidens ***
* a local government unit, by means of a resolution / ordinance,
ordered the transfer of a gas station from its present location to
somewhere else.
- SC: that cannot be done. Summary abatement (without judicial
proceedings) is permitted only if it is a nuisance per se, not
when it is a nuisance per accidens.
- Obviously, we can all agree that a gasoline station is only a
nuisance if it is situated in a place where it should not be.
o It is not a nuisance under in any or all circumstances. It
becomes a nuisance when it is situated in a residential
area.
In another case, in Lucena, the LGU tried to owner the transfer of bus
and jeepney terminal from its present location.
- SC: that cannot be done without proper judicial hearing.
Page 15 | Bantay

The city of Manila tried to prohibit motels, bars, sauna and massage
parlors in the Ermita district.
- Again, the SC said it cannot be done without proper hearing
because abatement without judicial proceedings is available
only in the case of a nuisance per se, not when it is merely a
nuisance per accidens.
WHO TAKES CHARGE OF THE ABATEMENT OF A PUBLIC
NUISANCE: District Health Officer will determine, will make sure that
one of the remedies available against the public nuisance are availed
of.
- In the case of a civil action, that should be commenced by the
local mayor, city or municipal mayor.
- The right to file an action for the abatement or for damages
based on a public nuisance if it is especially injurious to him.
o Certain requisites which must be complied with:
1) There must first be a demand made upon the
owner of the property or the lawful possessor of
the property in which the nuisance exists.
2) The demand must have been rejected, for if it is
favorable acted upon by the property owner,
there would be no need for any further action.
3) The abatement must also be approved by the
District Health Officer and it must be actually
executed with the assistance of the local police.
4) The value of the destruction must not exceed
P3K.
o Considering present value and prices, I doubt if there
would be anything which would qualify for abatement
under this provision.
DIFFERENT MODES OF ACQUIRING OWNERSHIP:
occupation, by its very nature, is that the property must
not have an owner.
When it comes to land, that is not possible because of
the Regalian Doctrine.
That is the reason why the law, even
categorically in ART. 714, states that an owner
of a piece of land cannot be acquired by
occupation.
4) DONATION:
5) INTELLECTUAL CREATION:
6) TRADITION / DELIVERY: as a consequence of other contracts.
7) SUCCESSION: whether testate or intestate.
You always need a mode of acquiring ownership.
- Without a mode, ownership CANNOT be considered to have
been vested in a person.
- There should always be a mode.
ACAP VS. CA: someone died and his heir executed a document
entitled declaration of heirship with a waiver of hereditary rights. In
that document, a third person, who was not a legal heir, was
supposedly given the properties owned by the decedent.
- SC: the ownership of the properties subject of that document
did not vest in the third person because there is not MODE of
acquiring ownership.
- That waiver does not operate to vest ownership in the third
person.
- There must always be a mode of acquiring ownership,
otherwise, ownership cannot be considered vested in a person.
BAR EXAM QUESTION: how do you distinguish OCCUPATION from
POSSESSION.

OCCUPATION POSSESSION
MODE TITLE

That which by itself is sufficient to Provides the reason / juridical It is essential that the property There can be possession even
transfer and convey ownership or justification for a mode. for the should not have an owner. when there is an owner.
acquisition of ownership.

Applies only to movables. Whether movable or immovable,

that would apply.
A sells his car to B. the title is the contract of sale.

- What would effectively transfer and convey ownership to B is Mode of acquiring ownership. By itself does not operate to vest
not the contract of sale but the DELIVERY of the car. ownership on the possessor.
- UNLESS and until there has been delivery, ownership would
not have been transferred and conveyed.

ART. 716: spoke of swarms of bees.

VARIOUS MODES OF ACQUIRING OWNERSHIP:
1) PRESCRIPTION
2) LAW itself: separate mode of acquiring ownership.
o Where if you are the owner of the parcel of land, that
the fruit tree of your neighbor has some branches
hanging over your property, the fruits which naturally
fall would belong to you.
It is the law itself which is the mode of acquiring
ownership.
o Change of riverbed: if the river changes its course, the
abandoned bed ipso facto belongs to the owner of the
land which is now occupied by the new bed.
3) OCCUPATION: when it comes to occupation, this would apply
only to movables.
o Only movables can be acquired by occupation.
o When it comes to immovable (land), that cannot be
acquired by occupation because one of the requisites of
- If you happen to be engaged in the production of honey, so you
own bees, and they transferred to the neighboring estate, you
have the right to pursue them.
- That is hard to image: going after the bees, as usually, the bees
go after you :P
- TWO DAYS ONLY: if you do not pursue them for two
consecutive days, then they belong to the owner of the land to
which they have transferred.
- RE: domesticated animals.
o Period: TWENTY DAYS.
o If you do not claim them within this period, they would
belong to the one who has caught them.
- Applies only to DOMESTICATED ANIMALS.

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 16 | Bantay

DOMESTICATED ANIMALS DOMESTIC ANIMALS
Subject to this provision. Dogs, cats: not subject to that
provision ***
* when you have a dog, even if they are in possession of another for
more than 20 days, you can still claim your dog back, unless you have
already abandoned your dog.
ART. 717: SPECIAL RULE FOR PIGEONS AND FISH: if they
transferred to another estate, provided they have not been lured by
some artifice or fraud, they would belong to the owner of that other
estate.
- When you owner a property, then there came a strong typhoon
and the milk fish of your neighboring fish pond ended up in
your property, then you own them. Praise the lord.
THE RULE OF FINDERS KEEPERS UNDER ART. 719 and 720
- If you find movable property which is not a treasure, and you
know who the owner or lawful possessor is, you are obligated
to RETURN it.
o There was an elementary student who was late for class
one day and the teacher asked him why he was late.
The student replied that there was a man who lost his
P500 and he was looking for it. He was late, not
because he helped the man look for his money, but
because he stepped on the P500 and was waiting for
the man to leave.
o RULE: you are supposed to return to the lawful owner or
possessor.
- In this connection, you have a provision in the RPC, ART. 308,
you are guilty of theft if you do not give that property to the
lawful possessor or the proper authorities under ART. 719.
- REQUIREMENT: to deliver it to the local mayor.
o The mayor is obliged under this provision to publish the
finding of that movable for two consecutive weeks in
any way he deems best (post notices in the bulletin
board in the city hall).
o If the property is of such nature that it would deteriorate
or it would necessitate incurring expenses just to keep
it, which would diminish the value, the law allows the
sale of the property after eight days from the publication
of the notice.
o EXAMPLE: property found is 1 gallon of ice cream
you cannot even wait for eight days as it would
deteriorate.
- SIX MONTHS from publication, that is the period given to the
owner to appear and to claim it.
o If he does not appear, then the property would belong
to the FINDER.
o If the owner however appears, there is an
OBLIGATORY REWARD of TEN PERCENT of the
value of the property to the finder.
INTELLECTUAL CREATION: rule with respect to letters (ART. 723)
who has ownership? The ADDRESSEE (the person to whom these
letters were addressed and delivered).
- BUT, they cannot just be published without the consent of the
writer of the letter or his heirs.
- The Courts may authorize the publication if the same is
necessary for the public good or in the interest of justice.
- The addressee or the recipient of the letter cannot just publish
them.
o That affords a degree of protection for people who are
fond of writing love notes and love letters.
o Di siya pwedeng ibuking without his consent.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
ART. 725: DONATION: an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another who accepts it.
- The Code defines it as an ACT.
o If you look at donations, however, it might be more
accurate to consider it not just as an act, but as a
CONTRACT.
REASON: because it does not just require the
act and consent of the donor, it always requires
the acceptance of the done.
Without an acceptance, you do not have a valid
donation.
- Only an owner of property can donate it.
o A non-owner cannot donate.
o If property is donated by somebody who is not the
owner of the property, that is not a valid donation,
although of course, that may provide the basis for the
acquisition of ownership not through donation, but
through prescription later on.
- Acceptance is necessary.
o Without it, there can be no valid donation.
o Whether the donation is mortis causa or inter vivos, the
acceptance is required.
o If the donation is a donation mortis causa, the
acceptance can only be made AFTER the death of the
donor.
An acceptance of a mortis causa donation
before the death of the donor would be clearly
premature.
- FOUR PRINCIPAL TYPES OF DONATIONS according to one
classification (based on the PURPOSE or CAUSE):
1) PURE or SIMPLE DONATION: a donation which is
essentially and exclusively gratuitous in character.
o No conditions.
o Not intended to remunerate another person. o
Simply born out of the generosity of the donor.
2) REMUNERATORY or COMPENSATORY DONATION:
this is intended to remunerate or compensate another
person or the donee for PAST services, which,
however, do not constitute demandable debts.
o You have a classmate who has always been
helping you study for your daily recitations,
whenever you are reciting, nasa likod mo yan
bubulong bulong ng tamang sagot, etc., if you
donate later on in life to your classmate of yours
when you became a millionaire, hat will fall
under this category.
o REASON: it is intended to somehow recompense
your classmate for past services which do not
constitute demandable debts.
3) MODAL or CONDITIONAL DONATION: made in
consideration of FUTURE services or the donor
imposes certain conditions or charges where the value
of the property donated is more than the charges
imposed by the donor.
o REASON: if the value of the property donated is
equal to less than the amount of charges
imposed by the donor, then it would fall under
the fourth category.
4) ONEROUS DONATION: important legal consequence
this donation is not in reality an act of generosity.
o Consequently, it will be governed not by the law
on donations, but by the law on contracts.
o If the amount / the value of the property donated
is equal to or even less than the amount of
charges or the value of the conditions imposed
by the donor.
o If that happens, you apply the law on contracts,
rather than the law on donations.
- CLASSIFICATION BETWEEN DONATIONS INTER VIVOS
AND DONATIONS MORTIS CAUSA
Page 17 | Bantay

DONATION MORTIS CAUSA DONATION INTER VIVOS
The form prescribed for WILLS.
You can only have a valid
donation mortis causa if you
execute a valid last will and
testament.
To take effect only AFTER the To take effect during the lifetime
death of the donor. of the donor.
The donor, in the deed of The donor reserves the usufruct
donation prohibited the of the property (I donate this
registration of the donation before property to X but I hereby reserve
his death. the usufruct of this property which
I am donating until I die).
- The property has already
been donated. Its only the
usufruct which is retained
by the donor. But
ownership would have
already been transferred.
The donor says in the deed of SC: the donor granted the donee
donation: I am donating this a limited right to dispose (the
property but I hereby reserve the donee may dispose of the
right to revoke this donation any donated properties only if it is
time before my death. necessary to raise funds for my
support).
- As long as there is a
reservation on the part of the
donor of the right to revoke,
due to any cause, any time
before his death ***
In one case, in the deed of The document is titled as a
donation, the donor prohibited the donation mortis causa, and it is
donee from disposing of the clear in the deed of donation that
donated property within 10 years it is being made for services
from the death of the donor ( rendered and still being rendered
but for a period of ten years by the donee, and it is provided
counted from the time of my that the donee shall take
death, you cannot dispose of possession only after the death of
these properties). the donor.
in one case, the donor said in the In one case the donor made a
deed of donation: the properties warranty. He warranted that
cannot be disposed of in any way nobody will disturb the donee or
without my consent. question the donees right
because the warranty made by
the donor implied the title to the
property has already been
CONVEYED.
* JUSTICE JBL REYES: that is one of the characteristics of a
donation mortis causa. If the donation is revocable at will, any time
before the death of the donor, that is one of the distinguishing marks of
a donation mortis causa.
The donor is allowed to impose CONDITIONS to which the donation
would be subject.
- If it imposes impossible or illegal conditions, these are not
considered imposed.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
o TESTAMENTARY DISPOSITION: impossible or illegal
conditions are simply ignored. They do not affect the
validity of the donation.
o The rule is different in the case of obligations: if an
obligation I made to depend upon an impossible or
illegal condition, not just the condition but the obligation
itself is rendered invalid.
o REASON FOR DIFFERENCE: donations and
testamentary dispositions are principal based on the
generosity and the liberality of the donor.
In one case, this involved the Roman Catholic Archbishop of Manila. A
property was donated and the condition was that the property shall not
be alienated for 100 years.
- Considered as ILLEGAL condition by the SC.
- An unwarranted and undue restriction on the rights of
ownership.
WHEN A DONATION IS PERFECTED: a donation is perfected from
the moment the donor knows of the acceptance by the donee.
- In this connection, under ART. 732, the donors capacity shall
be determined at the time of the making of the donation.
o When is the donation deemed made? When is this
moment called that making of the donation?
It is at the moment when the donation is
PERFECTED.
That moment of perfection at the moment that
the donor KNOWS of the acceptance of the
donee and therefore, the donor must have
capacity at that time.
o If the donor makes or signs the deed of donation, when
he was insane (incapacitated), the donation was sent to
the donee who in due time decides to accept it in the
proper form and the acceptance is sent back to the
donor, and when the acceptance was delivered to the
donor, he was already sane. Is there a valid donation?
If we apply this provision literally, it would seem
that YES, there is a valid donation because the
capacity of the donor is determined as of the
time of making of the donation (refers to the
moment of perfection, which is that moment
when the donor has knowledge of the
acceptance by the donee).
But what about the donor? If you happen to be
the donor in that case, syempre you were crazy;
you did not know what you were doing. Then
one day you became sane and the acceptances
arrived. Do you think it will be fair in so far as
you are concerned, to be left of any possible
remedies?
I dont think so.
The donor should be allowed to
question the validity of the donation.
After all, he was not capacitated when
he signed the donation.
As a matter of fact, I think we can even
find guidance in the provisions of ART.
1323, under the general rules in
contracts: an offer becomes ineffective
upon the death, insanity, insolvency or
civil interdiction of either party before
acceptance is conveyed.
Under that provision, even assuming the
both parties were capacitated, but after
the offer was made, either one of them
becomes dead or insane, or is placed
under civil interdiction or becomes
insolvent, automatically the offer
becomes effective.
Page 18 | Bantay
 It think we can apply the principle even writing). Otherwise, if the the acceptance must be noted in
in the case of donations. donation or the acceptance is not both instruments and the donor
With more reason if at the time the offer in writing and the value of the must be notified thereof in an
of donation was made, the donor was personal property exceeds authentic form.
already insane. P5000, the donation is VOID.

ART. 739: DONATIONS WHICH ARE CONSIDERED VOID:

1) Those made between persons who are guilty of adultery or
concubinage at the time of the donation.
2) Those which are made between persons found guilty of the
same criminal offense, where the donation was made in
consideration of the said offense.
3) Those made in favor of public officers, or their spouses,
ascendants and descendants.
o The law says wife. What if husband?
o The word wife should be understood to mean wise.
o DEAN: this provision is useless because who will agree
to receive a bribe in the form of a donation (with paper
trail and everything).
MINORS/PERSONS WHO CANNOT ENTER CONTRACTS: may be
the donees in donations but the acceptance should be done through
their legal representatives.
PAJARILLO VS. IAC: however, in one case, the SC, speaking through
Justice Cruz refused to strictly apply ART. 749.
- There was a donation involving real property and the
acceptance was made in a separate instrument. Unfortunately,
the law requires that if the acceptance is made in a separate
instrument, the donor must be notified thereof in authenticated
form and that step must be noted in both instruments.
- In this case, there was a failure to NOTE that step in both
instruments that the donor had been notified an authentic form
(notice through authentic form constancia autentica).
- The SC refused to apply strictly the provisions of this article
because according to them, if the provision will be applied
strictly, it would result in injustice and it will result in a distortion
of the intention of the donor.

- Even unborn but conceived children can already be donees.
o Those who are still in the womb are already deemed
born for civil purposes beneficial to them under the
provisions of the Civil Code.
ART. 744: the rule on DOUBLE DONATIONS.
- If the same properties donated to two different persons, the rule
on DOUBLE SALES will apply.
- There is something wrong with this provision.
o REASON: it seems that the codifiers forgot that
donation by itself is a distinct mode of acquiring
ownership.
A donated property to B and later on A donated the same property to
C.
- It is obvious that if the first donation is valid, A ceases to be the
owner of the property.
- It is already owned by B, the donee.
- If A donates the same property to C, then the second donation,
without question, is obviously invalid because only the owner of
the property can donate it.
The acceptance must be made by the donee himself or by a person
who is properly authorized to accept, otherwise, the donation is void.
- With respect to donation inter vivos, the acceptance must be
made DURING THE LIFETIME of the donor and of the donee.
ART. 748 and 749: FORMS OF DONATIONS:
WHAT MAY BE DONATED: everything you own, as long as you
reserve either in usufruct or in full ownership sufficient property for your
own support as well as for the support of people legally entitled to get
support from you (general limitation).
- If you do not observe that limitation, you donated everything
without such reservation, the donation may be REDUCED on
petition of any of the persons affected.
- A donation cannot comprehend FUTURE property.
o A property is future property if the donor cannot dispose
of it at the time of making the donation.
- Is there a right of accretion in donation?
o GENERAL RULE: no accretion if there are several
donees.
o EXCEPTION: if the donees are spouses, unless
otherwise provided by the donor.
o There is accretion in donation under the same
consequences as testamentary succession
(repudiation, refusal to accept, incapacity or pre-
deceased).
In the case of REVERSION (ART. 757): may be validly established in
favor of the donor in any case and circumstances.
- For any case or circumstances, pwede basta the reversion is in
favor of the donor.
- If it is in favor of other persons, it can only be validly made if
the persons are living at the time of the donation.
- If the provision on reversion is invalid it does not comply with
the requirements of this article only the provision on reversion
is voided.
o The donation remains valid.

A donated a property to B, but A provided for reversion in the deed of

PERSONAL PROPERTY REAL PROPERTY donation upon the death of B, the property will revert to me.

- That is valid, because A is the donor.

Even an ORAL donation is valid
and requires the simultaneous
delivery.
If the value of the personal
property donated however
exceeds P5000, for the donation
to be valid, the donation, as well
as the acceptance, must be in
WRITING (kahit sa kapirasong
papel lang, as long as it is in
Regardless of the value (the real
property donated may be worth
only P200), you always need a
PUBLIC DOCUMENT for a valid
donation of real property.
The acceptance must be made
either in the same instrument or in
a separate instrument.
If made in a separate instrument,
- If A said, upon the death of B, the property donated will go to
the first born child of my brother, Jose.
o At the time of the donation, Jose still doesnt have a son.
o That is not a valid reversion because at the time of the
donation, the intended recipient in case of reversion is
not yet living.
o But in that case, there would still be a valid donation.
Only the provision on reversion is considered void.

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 19 | Bantay
Is the donee obligated to pay the debts of the donor? NO.
- If there is no order from the donor for the donee to pay the
debts of the donor, the donee is not obligated to pay the debts
of the donor.
- If the donation is made in fraud of creditors, the regardless of
whether there is an order or not, the property donated can be
made liable for the payment of the debts in favor of the
defrauded creditors.
- In case of donations of fraud of creditors, the good faith of the
donee will not protect him.
o Even if the donee is in good faith, that will not protect
him.
o The creditors would have the right to proceed against the
property donated.
o REASON: unlike in the case of transfers by onerous title,
in the case of a donation, it is purely gratuitous. Wala
naman nawala sa donee. He only gave his acceptance.
So even if he is in good faith, that will not protect him if
the transfer is by gratuitous title.
- If there is an order to pay, the debts of the donor: the donee is
hereby ordered to pay my debts.
o That applies to only PRE-EXISTING DEBTS of the donor.
o It will not cover debts which are incurred by the donor
after the donation.
ART. 760: REVOCATION: situations when a donation may be revoked
or reduced (BAR):
1) BIRTH: if at the time of the donation, the donor did not have
any children or descendants, the law says the donation may be
revoked or reduced if subsequently he should have children.
2) ADOPTION: or in case he adopts a minor child.
3) RE-APPEARANCE: or if a child which he thought was dead
turn out to be living.
ART. 763: PRESCRIPTIVE PERIOD: FOUR YEARS for revocation
and reduction.
- It will be revoked or reduced only to the extent that it is
inofficious.
- It will be inofficious only if it exceeds the so-called free portion
of the persons estate; if it will impair the legitime, taking into
account the estate of the testator at the time of the birth,
appearance or adoption of the child.
- NOTE: the provisions, the revocation or reduction of the
donation, do not happen automatically.
o There must be a corresponding case filed for the
revocation or reduction of the donation.
o And in connecting with ART. 761, note that in one case,
the SC categorically said: there would be no revocation,
no reduction of the donation even in case of birth,
adoption or reappearance if there is no allegation and
proof in the complaint that the legitime has been
impaired.
The ultimate basis of ART. 760 is impairment of
legitime.
If there is no impairment (not alleged or not
established and proved), then there is no basis
for the revocation or reduction of a donation.
- The action cannot be renounced and it is transmitted upon the
death of the donor to his legitimate and illegitimate children and
descendants.
ART. 464: revocation is based on NON-FULFILLMENT OF A
CONDITION.
- If the donee does not comply with them, the donation may be
revoked at the instance of the donor.
- Prescriptive period: FOUR YEARS from the time of the non-
compliance with the condition.
- The action is transmitted to the heirs of the donor and may be
exercised even against the heirs of the donee.
PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014
Bantay
SC ruled in one case: the four year prescriptive period from an action
for revocation of the donation, based on non-compliance with a
condition under ART. 764, that four-year prescriptive period does not
apply if there is a stipulation on automatic revocation.
- The four years will apply if there is NO STIPULATION on
automatic revocation.
ROMAN CATHOLIC BISHOP OF SAN PABLO: there was, if you look
at the facts, no strict compliance with the conditions and yet the SC did
not allow revocation.
- There a parcel of land was donated to the diocese. The
condition of the donation was that parcel of land was to be
used for a home for the aged.
- The bishop later on realized before the home for the aged
could be put up, that the property donated was not suitable for
a home for the aged because the adjoining areas were being
converted to an industrial zone.
o If you put a home for the aged there, surrounded by
industries, then lalong iikli buhay ng mga nilagay mo
dyan.
o The place must be peaceful, serene, has fresh air not
right in the middle of the industrial zone.
- So instead of using the property for the home for the aged, the
bishop decided to put up that home for the aged somewhere
else and the property was instead leased to a third person.
- There was an action for the revocation of the donation on the
round of non-compliance.
- SC: if you look at it, the bishop was really trying to comply to
the condition, the best way he could so this action for
revocation will not prosper.
In another case: a parcel of land was donated to a certain school with
the condition that the land would be used exclusively for school
buildings.
- The problem is that here was a certain type of school building
that the government said itself that the building cannot be built
there.
o They needed at least one-hectare.
- So the property was exchanged with another property and
there, the school building was built.
- There was an attempt to revoke the donation but the SC said,
again, what was done was precisely in accordance with the
general purpose of the donation.
What we can possibly glean for this cases: aslong as the action taken,
while not strictly speaking is a literal compliance with the condition, as
long as the purpose is maintained, the objective is maintained, that will
not be considered a sufficient basis for revoking the donation.
CENTRAL PHILIPPINE UNIVERSITY: property was donated to that
university, with the condition that the university should put up a medical
school in honor of the donor.
- Around 50 years later, the heirs of the donor filed an action to
revoke the donation because of the non-compliance of the
condition.
- SC: walang duda, more than enough time has passed. Almost
half a century has passed and the condition has remained
unfulfilled.
o There is therefore any judicial obstacle for the revocation
of the donation.
Page 20 |
 - DISSENTING (DAVIDE): there should have been a time set
first for compliance, though the majority said wala yan.
INSTANCES WHEN A DONATION MAY BE REVOKED DUE TO
INGRATITUDE:
1) If the donee commits n offense against the person, honor or
property of the donor, or of his [spouse] or children under his
parental authority.
2) If the donee imputes to the donor any criminal offense or any
act involving moral turpitude, even if he should prove it, unless
the crime or the act was committed against the donee himself,
[spouse] or children under parental authority.
3) If the donee, without justifying cause, refuses to support the
donor when he is legally or morally obligated to give such
support.
yan so it is inofficious up to the extent of P50K.
It must be reduced to P50K.
G must return to the estate P50K, and such will
be given to A and B to satisfy their legitimes.
o Supposing that you are the one to whom this P800K is
owed, can you not run after these properties? NO.
You can only run after the donated properties of
the donor if they were made in fraud of
creditors.
X was still rich when he made those donations.
Moreover, there is a prescriptive period of
FOUR YEARS.
So creditors cannot run after these properties.
- Collation is only for the benefit of compulsory heirs and one to
protect their legitimes.

INGRATITUDE: something PERSONAL. -- END

- It must be the donee himself who has committed these acts.

- If these acts were committed by the wife of the donee, that is
not included.

If the action is based on INGRATITUDE, it cannot be renounced in

advance.

- It prescribed within a short period of ONE YEAR counted from

the time that the donor has knowledge of the act of ingratitude
as long as at that time, it was possible for him to institute the
action.

ART. 770: Because of its highly personal nature. The action cannot be
transmitted to the heirs of the donor.

- Even if the donor should die within the prescriptive period of

one year.
- It cannot also be instated against the heirs of the donee.
- If prior to the death of the donee, the case has already been
filed by the donor, it will continue.

ART. 771 773: involve COLLATION.

- When a person dies, all gratuitous dispositions during his

lifetime will be added or collated to his estate.
- If they exceed the free portion, they would be reduced.
o PURPOSE: to protect the legitime of compulsory heirs.
- Only for the benefit of compulsory heirs and cannot be invoked
by persons who are not entitled to any legitime.

ILLUSTRATION: X has two children, A and B. In 1975, he donated a

parcel of land to his friend, F, worth P40K at that time. In 1988, X made
another donation to his other friend, G, worth P60K. During those
times, X was a multi-millionaire but when he died in 2005, his gross
estate was only P100K and he had debts of P800K.

- So he has more debts that estate.

- Will A and B inherit anything? YES, because of COLLATION. o
They are compulsory heirs entitled to a legitime so we
have to collate P40K and P60K = P100K.
o P100K will be the basis for determining the legitime of A
and B (1/2 portion) = P50K.
o They are entitled to a legitime of P25K each.
o The other P50K is the FREE PORTION.
o A donation is considered inofficious if it exceeds the free
portion. There are two donations (1975, 1988) and
between the two of them, if the free portion is not
sufficient to cover all donation, preference is given to
the earlier donation simply because priority in time is
priority in right. So in imputing these two donations,
uunahin natin ung P40K and kasya siya sa P50 na free
portion.
The next one if P60K and obviously, di kakasya

PROPERTY | DEAN NAVARRO AUDIO LECTURE | AUF SOL 2014 Page 21 | Bantay