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 OWNERSHIP
§ IN GENERAL
➔ Ownership signifies that dominion or indefinite right of use, control and
disposition (constituent elements) which one may lawfully exercise over
particular things or objects.

➔ Ownership is a Biblical Concept: The Mosaic laws as described in the Ten

Commandments or the laws on takings in Exodus 22:1-15, as well as the host
of other Levitical laws throughout the first five books of the Old Testament, are
all attempts to legally define ownership.

➔ From the Hammurabi code to the English common law, the notion of legal
ownership, or legal rights, to property is well defined.

➔ William Blackstone (English Jurist): “The third absolute right; inherent in every
Englishman, is that of property: which consists in the free use, enjoyment and
disposal of all his acquisitions, without any control or diminution, save only by
the laws of the land”.

§ DEFINITIONS
➔ Property signifies that dominion or indefinite right of user, control and
disposition which one may lawfully exercise over particular things or objects
(63 Am Jur 2d).

➔ Property is composed of certain constituent elements, namely, the unrestricted

right of use, enjoyment and disposal of the particular subject of property.

➔ Exercise of Rights of Ownership under Art. 427 of the Civil Code

◆ Over Things

◆ Over Rights

➔ Meaning of Title

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 ◆ It is the evidence of a person’s right or of the extent of his right or
interest over a property. Title is the means whereby the owner is enable
to maintain or assert his possession and enjoyment.

◆ Colour of title is that which gives a semblance or appearance of

title, but is not the title in fact. It is anything which shows the extent
of the occupant’s claim

§ INCIDENTS OF OWNERSHIP
➔ Right to Exclude
◆ Right to Exclude under the Civil Code (Art. 429, NCC)

● The owner or lawful possessor of a thing has the right to exclude

any person from the enjoyment and disposal of the thing.

◆ Self-Help

● Under Art. 429, NCC, an owner or lawful possessor of a thing may

use reasonable force as may be reasonable necessary to repel or
prevent an actual or threatened unlawful invasion or usurpation of
his property. 


● Under the Art. 11 of the Revised Penal Code (justifying

circumstances), the use of force is justified in defense of property if
there is:


○ Unlawful aggression,


○ Reasonable necessity of the means employed to prevent or

repel it (reasonable force)


○ Lack of sufficient provocation on the part of the person

defending. 


● Castle doctrine (US doctrine not applicable in the Philippines, do

not do this at home) is a legal doctrine that designates a person's
abode or any legally occupied place – e.g., a vehicle or home – as
a place in which that person has protections and immunities

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 permitting one, in certain circumstances, to use force (up to and
including deadly force) to defend oneself against an intruder, free
from legal prosecution for the consequences of the force used. A
person may have a duty to retreat to avoid violence if one can
reasonably do so. However, Castle doctrines negate the duty to
retreat when an individual is assaulted in a place where that
individual has a right to be, such as within one's own home.

● Exception

○ Lawful Interference in cases of acts of necessities Art. 432,

NCC

◆ But the person benefited should compensate affected

owner for damages

● Right of Enclosure and Fences (Art. 430, NCC)

○ Subject to servitudes and easements

◆ Resort to judicial process if possession is loss

● General Theme

○ The law favors actual possessors, presumed as owners.

● Article 428 (Par. 2) - The owner has a right of action against the
holder and possessor of the thing in order to recover it.

● Article 433. Actual possession under a claim of ownership raises a

disputable presumption of ownership. The true owner must resort to
judicial process in order to recover it.

➔ Right to Use
◆ Under Art. 428 of the Civil Code

● Par. (1) The owner has the right to enjoy things without other
limitations

◆ Exceptions:

● Limitations by law

● Injurious Use - The owner of the thing cannot make use it in such a
manner as to injure the rights of a third person (Article 431, NCC)

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 ● An owner may put his property to any use not unlawful, however
absolute and unqualified may be his title, an owner holds the
property under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal right to
the enjoyment of their property of others nor injurious to the rights
of the community a claim of restrictions and limitation in the use of
such property must be clearly and indubitable established

● The establishment of laws requiring each citizen to conduct himself

and use his property is such a manner as not to injure another. The
state may provide regulations regarding acquisition, enjoyment and
disposition of property and may even take private property for a
public purpose, subject to the right of the individual to just
compensation.

● But remember:

○ Equal Protection - Property is subject to certain burdens

which it must bear in common with other property of a like
kind.

○ Limits of General Welfare - Governmental control and

regulate properties to secure the general safety, the public
welfare and the peace, good order and morals of the
community. This does not confer power to control rights
which are purely and exclusively private.

◆ 1987 Constitution, Article XII, National Economy and Patrimony

● Use of Property Has a Social Function

○ The use of property bears a social function, and all economic

agents shall contribute to the common good. Individuals and
private groups, including corporations, cooperatives and
similar collected organisations, shall have the right to own,
establish and operate economic enterprises

● Distributive Justice

○ The use of property is subject to the duty of the state to

promote distributive justice and can State intervene when
the common good so demands.

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➔ Right to Transfer
◆ It includes the right of alienation or disposition in any lawful manner which
the owner deems fit

◆ Must comply with the mode appropriate appropriate to the kind of property
in order to be effectual.

◆ Art. 428 of the Civil Code

● The owner has the right to dispose property subject to limitations

established by law

◆ Kinds of Transfers

● Assignment of ownership

● Assignment of interest/rights only

➔ Right to Vindicate
◆ Includes the right to protect and defend such possession against the
intrusion or trespass of others which may include self-help; and

◆ Right to judicial relief (See Trespass, Interference, and Nuisance)

§ ACQUISITION OF OWNERSHIP
➔ Ownership is acquired by occupation and intellectual creation or
transmitted by law, by donation, by estate and intestate succession, in
consequence of certain contracts - by tradition and by prescription (Art.
712, NCC.).

➔ Ownership can also be acquired under the principle of accession (Art. 440
and 441, NCC).

➔ Mode of Acquiring Ownership

◆ Mode is the specific cause which gives rise to ownership;

◆ Ownership is a result of the presence of a special condition of things, of

the aptitude of persons, and of compliance with the conditions established
by law.

◆ Title and Ownership

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 ● Title is the juridical act which gives the name to the acquisition of
ownership.

● By title, a juridical act has been performed but actual ownership is

not transferred until the property is delivered and the purchaser has
taken possession of the thing as in Sale.

● Influence by Roman Law, the distinction has been abandoned by

other civil law countries.

➔ Kinds of Mode
◆ Original Mode of Acquiring Ownership

● First time creation or acquisition of Ownership over a thing or right.

● It is independent of any pre-exist right of another person; hence it is

necessarily free from burdens or encumbrances.

● Occupation

○ Definition

◆ Things appropriable by nature which are without an

owner are acquired by occupation (Article 713, NCC)

◆ But land cannot be acquired by occupation (Article

714, NCC).

○ Conditions for Acquisition of Ownership by Occupation

◆ Physical object;

◆ Actual possession or control;

◆ Intention to and capacity to acquire

◆ Specific Resources: wild animals, hidden treasure

and abandoned movables.

◆ Res nulius - Includes domesticated animals that

returned to the wild (20 days to reclaim, otherwise it
shall be considered as res nullius);

○ Special Rules

◆ Bees (right to pursue, 2 days);

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 ◆ Pigeons and fish (enticement rule);

◆ Hidden treasure (Art. 438, NCC); Finder must return

(1/10 reward) or he is liable for theft under RPC
Article 308, Par. (1);

◆ Abandoned property becomes res nullius

○ Republic Act No. 9147 (Wildlife Resources Conservation

Act and Protections Act)

◆ State Policy

● Implements the policy of the State to Conserve

the country’s wildlife resources and their
habitats for sustainability

● Objectives: Conserve, protect, regulate the

collection and trade, pursue commitment to
international conventions, and to initiate
scientific studies on the conservation and
protection of wildlife.

◆ Illegal Acts:

● Section 27 enumerates the illegal acts;

● Killing, destroying, and injuring wildlife species;

● Damaging critical habitats;

● Introduction, reintroduction or restocking of

wildlife resources;

● Collecting, hunting, possessing, trading, and

transporting of wildlife and their by products/
derivative including active nests, nest trees,
host plants and the like; and

● Other similar acts

◆ Subject to exceptions:

● Section 7 and Section 27 (paragraph a,

subparagraph i to v)

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 ○ Use by indigenous people

○ In accordance with customs and

practices traditionally observed,
accepted and recognized including
killing and destroying if part of religious
rituals of established indigenous
peoples community; exception: does not
cover threatened species

● Wildlife Permits issued by the DENR:

○ Wildlife farm or culture;

○ Wildlife collector’s permit;

○ Gratuitous permit;

○ Local Transport Permit; and

○ Export/Import/Re-export permit.

◆ Roman Law Concepts

● res nullius (property without an owner)

● spes recuperandi (hope of recovery)

● animus revertendi (intent to recover)

● res alicujus (possession is lost but not

ownership)

● Intellectual Creation.

○ General Principles:

◆ Properties that are created by the human mind;

◆ Creation are transformed into physical objects:

● Physical copy of the book or in the case of

songs and music the copy of the recording is
owned by the buying public;

● Many can use it without interfering with each

other’s use. It is a public good or a good that

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 can be consumed without reducing any other
person’s consumption of it. However, the
intellectual content of the created object is
owned by the author or the creator; and

● Authors and inventors are given an incentive

by giving a limited monopoly on writings and
inventions.

○ Three (3) types of Intellectual Creation:

◆ Copyrights - protects original works of the

authorship, i.e. books, computer programs, plays,
sculptures, songs to promote science and useful arts
giving authors exclusive rights to their writings and
discoveries.

● As Incentive to creators - Holds the right to

exclude, prevent others from reproducing the
work, creating derivative works,, distributing
copies of the work to the public, publicly
performing the wok or displaying during the
term of the copy right. The owner may transfer
her copyright to others or destroy the copyright
by abandoning it.

● What is being protected is the manner in which

an idea is expressed not the idea itself. Thus,
concepts, principles, discoveries, facts and
other ideas are not covered by copyright.

● Infringement - Plaintiff owns the copyright and

the defendant actually copied the plaintiff’s
work. The ordinary observer should be able to
conclude that the defendant’s work was
substantially similar to the plaintiff’s work

◆ Patents - intended to promote science by protecting

new inventions. Patent Office are authorized to issue
patent to anyone who invents or discovers any new
and useful process, machine, manufacture or
composition of matter or any new and useful
improvement thereof.

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 ● Utilitarian Mandate - Inventors are obliged to
reveal how he made the invention so that
others may improve it

● What can be patented - There are four (4)

categories of inventions to qualify for a patent;
any process, machine, manufacture, or
composition of matter. Abstract concept,
mathematical algorithms, scientific principles
and physical phenomena cannot be patented.

● Elements

○ Utility - useful invention, benefit to

human

○ Novelty - new invention; prior arts

examination

○ Non-obviousness - obvious to persons

with ordinary skills

○ Enablement - description in details to

enable a person skilled in the art to
which it pertains to make use of the
same.

● Patents Infringement - to prevail in a patent

infringement action, the plaintiff must show
either:

○ Literal infringement; or

○ Infringement under the “doctrine of

equivalents”.

◆ Trademarks - protect words, names and other

symbols which are used by merchants to distinguish
their goods and services from others.

● Objective - While copyrights and patent law

seek to encourage creative efforts, the goals of
trademark are different. Its goal is to protect

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 consumer from being deceived inter
purchasing shoddy goods and services

● Trademark Infringement - to prevail in a

trademark infringement action, the plaintiff
must prove:

○ Plaintiff is holding a valid trademark with

priority over the defendant’s mark;

○ the defendant’s mark is likely to cause

confusion or deceive consumers; or

○ Defendant may be liable for trademark

dilution if his conduct blurs or tarnishes
the plaintiff's famous mark.

○ System of allocation of Intellectual Property Rights:

◆ First in Time;

◆ Principal right is the “right to exclude” others from

using the intellectual property;

◆ Governed by national laws but are increasingly

affected by international law; and

◆ Intellectual Properties are protected by Special

Legislation.

◆ Derivative Mode of Acquiring Ownership

● Are those based on a right previously held by another person, and

therefor subject to the same characterization as when held by the
pretending owners.

● Transfer - the person transmits the right in its entirety to another

and as a result, lost ownership of the thing, such as:

○ Succession; and

○ Tradition.

● Constitution of Rights - the person merely transmit a part of the

ownership right such as as the right to use in:

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 ○ Usufruct; and

○ Lease; or

○ Limiting the right to transfer in mortgage since the property

is used as a collateral in a loan agreement. In a mortgage
agreement, the borrower assign a specific property called a
collateral to a lender as security for repayment of a loan. The
collateral serves as a lender's protection against a
borrower's default—that is, it can be used to offset the loan if
the borrower fails to pay the principal and interest under the
terms of the lending agreement; or as

○ In a pledge, is a bailment that conveys possessory title to

property owned by a debtor (the pledgor) to a creditor (the
pledgee) to secure repayment for some debt or obligation. In
Bailment, the owner delivers the property to a bailee for a
particular purpose, without transfer of ownership. 


§ Loss of Ownership
➔ No provisions that specifically discuss the rules on loss of ownership under the
Civil Code.

➔ Modes of Losing Ownership

◆ Voluntary

● Abandonment; and

● Alienation (transfer)

○ Inter vivos; or

○ Mortis causa.

◆ Involuntary

● Loss of the thing;

○ Physical loss; or

○ Juridical loss (when the thing ceases to be the objet of

private ownership)

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 ● Accession continua;

● Rescissory actions;

● Judicial decree; and

● By Operation of law.

§ Co-Ownership
§ Concept
➔ Under the Civil Code

◆ The ownership of an undivided thing or rights belongs to different person

(Art. 484, NCC)

§ General Rule
➔ Presumption is equal shares (Art. 485, NCC)

➔ Full ownership of his share (Art. 493, NCC)

➔ On Share - the share of the co-owners in the benefits as well as in the charges
are proportional to their interest and any stipulation altering this proportion is
void . (Art. 485, NCC)

§ Incidents of Co-ownership
➔ On Right to Use

◆ Any co-owner ay use the thing in accordance with its purpose (Art. 486,
NCC)

◆ Cannot use it in such a way as to injure the interest of the co-owners or

prevents them from using it according to their right.

◆ Co-owner may not alter the thing in common even though it will benefit all
co-owners; judicial relief if the withholding of consent is prejudicial (Art.
491) or if the resolution of the majority is prejudicial (Art. 492)

➔ On Right to Exclude

◆ May not exclude co-owners (Art. 486, NCC)

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 ◆ Prescription does not run against co-owner as long as he recognises the
co-ownership (Art. 494 NCC, par. 5)

➔ On Right to Transfer

◆ Any co-owner may alienate, assign or mortgage his right (Art. 493, NCC)

◆ Any co-owner may substitute another person in the enjoyment of the use
except if personal rights are involved (Art. 493, NCC)

◆ Creditors and Assignees may take part in the division but cannot impugn
any partition that has been executed (Art. 497, NCC)

➔ On Right to Vindicate

◆ Any co-owner may bring an action for Ejectment (Art. 487, NCC)

◆ On Right to Partition

◆ Any co-owner may demand partition any time in so far as his share is
concern (Art. 492 and 496, NCC);

● Mutual accounting for benefits receive and reimbursement (Art.

500);

● Creditors or assignees of a co-owner may take part in the division

and object to its being effected without their concurrence (Art. 497).

➔ Kinds of Partition (Art. 496, NCC)

◆ Private Partition (Art. 496)

◆ Judicial Partition (Art. 496)

➔ Exception to Right of Partition

◆ By agreement for a period not more than ten years. Extension is allowed
by a new agreement. (Art. 494, par. 2)

◆ Donor and Testator may prohibit partition but it shall not exceed 20 years
(Art. 494, par. 3)

◆ If the partition will render the thing unserviceable for the use for which it
was intended (Art. 495).

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 ◆ Indemnification of other co-owners by the acquiring co-owner but if there
is no agreement, the thing shall be sold and the proceeds distributed (Art.
497)

➔ Effect of Partition to Third Persons (Art. 499, NCC)

◆ Does not prejudice third person who has a right of mortgage, servitude or
any other real right before the division.

◆ Does not prejudice personal rights

➔ Warranty

◆ Every co-owner shall be liable for defects of title and quality of the portion
assigned to each of the other co-owners. (Art. 501, NCC)

§ Obligations of Co-Owners
➔ Contribute to the expenses for preservation and to taxes. (Art. 488, NCC)

➔ Contribute to the expenses for improvement upon majority decision (Art. 489,
NCC). Majority decision must include co-owners representing controlling interest
(Art. 492)

➔ As far a practicable, other co-owners must be notified before a co-owner incur

expenses for preservation.

§ Renunciation of Shares
➔ A co-owner may renounce his share share as may be equivalent to this share of
the expenses and taxes but not when it is detrimental to the interest of the co-
ownership (Art. 488, NCC)

§ Special rules on co-ownership of buildings with different

Stories
➔ Check Art. 490, NCC

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 § POSSESSION
§ In General
➔ Possession in General

◆ Possession is the holding of a thing or the enjoyment of a right (Art. 523).

Only things and rights which are susceptible of being appropriated may be
the object of possession (Art. 430)

◆ Possession is the fact of having or holding property in one’s power; the

exercise of dominion over property; the right under which on may exercise
control over something to the exclusion of all others;

◆ Any of the usual outward marks of ownership may suffice as possession in

the absence of manifest power in someone else.

➔ Definitions

◆ Actual Possession - Physical occupancy or control over property

◆ Adverse Possession - The enjoyment of property with a claim of right

when the enjoyment is opposed to another person’s claim and is
continuous, exclusive, hostile, open and notorious.

◆ Bonafide Possession - Possession of property by a person who in good

faith does not know that the property’s ownership is disputed.

◆ Constructive Possession - Control or dominion over a property without

actual possession or custody of it. Thus, when a possessor holds title to a
property and physically possesses part of it, the law will deem the
possessor hold constructive possession of the rest of the property
described in the title.

◆ Exclusive Possession - The exercise of exclusive dominion over property

including the use and benefit of the property.

◆ Hostile Possession - Possession asserted against the claims of all others

especially the true or record owner

◆ Notorious Possession - Possession or control that is evident to others;

Possession of property that, because it is generally known by people in
the area where the property is located, gives rise to a presumption that the
actual owner has notice of it.

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 ◆ Acquisitive Prescription - The acquisition of a title to a thing by open,
continues, exclusive, notorious and hostile possession over a statutory
period.

◆ Prescription (Extinctive) - The extinction of a title or right by failure to claim

or exercise it over a long period of time.

◆ Peaceable Possession - Possession not disturbed by another’s hostile or

legal attempts to recover possession especially wrongful possession that
the rightful possessor has appeared to tolerate.

➔ Possession is either actual or constructive.

◆ Constructive possession is sometimes called legal possession or

possession in law. A legal fiction that gives a person a semblance of
possession in certain instances where he is not in actual possession of a
thing in order to distinguish it from possession in deed or in fact, which
actual occupancy gives.

● The mere fact of putting a person in charge or custody of another

property does not divest the possession of the owner.

§ HOW IS POSSESSION EXERCISE

➔ Possession can be exercise in one’s own name or in that of another (Art.
524, NCC)

➔ Possession of a thing as an owner

➔ Possession of a thing by reason of a right to hold, keep or enjoy without

being an owner; (Art. 559, NCC)

§ HOW IS POSSESSION ACQUIRED

➔ Possession is acquired through (Art. 531, NCC):

◆ Material Occupation

◆ Exercise of a Right

◆ Control over thing/right that are subject to the action of our will (Art. 560)

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§ WHO CAN ACQUIRE POSSESSION
➔ Possession can be acquired:

◆ By the same person who is to enjoy it (Art. 532, NCC)

◆ By his legal representatives, agent or any other person if ratified; in case

of minors/incapacitated persons, they need the assistance of their legal
representatives

◆ By operations of law (Art. 534, NCC) as in the case of hereditary title -

transmission from the moment of death

◆ Possession cannot be acquired through force or intimidation as long as

there is a possessor who objects to it (Art. 536, NCC; but see the doctrine
of Self-Help)

◆ Acts merely tolerated and those executed clandestinely and without

knowledge or by violence do not affect possession (Art. 537, NCC)

◆ Possession of movables in good faith is equivalent to a title, however, the

person who was unlawfully deprive may recover it (Art. 559, NCC); there
must be reimbursement by the owner in case of acquisition in public sale.

◆ Possession as a fact cannot be recognized at the same time in two

different personalities except in co-possession (Art. 538, NCC)

● Present possessor is preferred

● The one longer in possession is preferred in case there are two

possessors

● The one who presents a title is preferred in case of the date of

possess are the same.

§ LOSS OF POSSESSION
➔ The provisions under Art. 544, NCC provides that possession can be loss:

◆ By abandonment of the thing;

◆ By assignment made to another either by onerous or gratuitous title;

◆ By destruction or total loss of the thing or because it goes out of

commerce; and

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 ◆ By the possession of another:

● One year

● Ten years - real right of possession is lost

● Prescription on immovables is subject to land registration laws

◆ Presumption

● Movables are not deemed lost as long as they remain under the
control of the possessor even though the time being he may not
know its whereabout.

§ EFFECTS OF POSSESSION
➔ In General
◆ Possession is respected and will be restored if disturbed, writ of ejectment
may be issued (Art. 539, NCC)

◆ Presumptions of Ownership in favor of Actual Possessors

● Just title - if possession is in the concept of an owner; possessor

cannot be obliged to show or prove it. (Art. 541, NCC)

● A possessor who shows possession at some previous time is

presumed to have held possession also during the intermediate
period in the absence of proof to the contrary. (Art. 459, NCC)

● Possession of real properties presumes possession of movables

(Art. 542, NCC)

➔ Rules in common in all possession (Art. 534, NCC)

◆ Allocation after division is presumed to have been possessed during the

entire duration of co-possession

◆ Interruption of possession prejudices all the possessors

◆ In case of Civil Interruption, the Rules of Court applies

➔ Possession in Good Faith

◆ Definition

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 ● A Possessor in good faith is a possessor who is not aware that
there exists in his title or mode of acquisition any flaw which
invalidates it;

● Remember:

○ Mistakes as to question of law may be a basis of good faith

(Art. 526, NCC);

○ Good faith is presumed and bad faith has to be proved (Art.

527, NCC); and

○ Good faith is lost upon knowledge of the facts (Art. 528,

NCC)

◆ Effects of Possession in Good Faith

● On the Fruits

○ Entitled to the fruits before possession is legally interrupted

○ Right to his proportional share in case of natural and

industrial fruits in case of interruption

● On the Expenses

○ Refund - for necessary expenses with right of retention until

reimbursement (Art. 546, par. 1, NCC)

○ Refund - for useful expenses with right of retention - owner

has the option to refund or to pay increase in value (Art. 546
par. 2, NCC)

○ Refund - for expenses for pure luxury or mere pleasure (Art.

548, NCC)

● Right of Removal

○ Of useful improvements if it can be done without damage or

refund (Art. 547, NCC); and

○ Of ornaments for embellishment if it suffers no injury and if

owner does not prefer to refund (Art. 548, NCC)

● Liability

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 ○ Not liable for the deterioration or loss except if there is
fraudulent intent or negligence after judicial summons

➔ Possession in Bad Faith

◆ Definition

● A possessor in bad faith is a possessor who is is aware, has

knowledge or has actual notice of any flaw in his title

◆ Effects of Possession in Bad Faith

● On the Fruits

○ Obligation to reimburse the owner/legitimate possessor the

fruits received

● On the Expenses

○ Refund - For necessary expenses only without right of

retention (Art. 546 and 549, NCC)

◆ Right of Removal

● Of improvement for pure luxury or please if no injury is cause and

the lawful possessor does not prefer to retina the by paying its
value (Art. 549, NCC)

◆ Liability

● Liable for all losses including fortuitous events

➔ Adverse Possession

◆ Concept

● The enjoyment of real property with a claim of right when that

enjoyment is opposed to another person’s claim and is continuous,
exclusive, hostile, open and notorious.

● Possession without authority and adverse to the interest of the

lawful possessor;

◆ Prescription by Adverse Possession

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 ● The most controversial doctrine in property law. Title by adverse
possession is like title by theft or robbery, a primitive way of
acquiring land without paying for it.

◆ Justification why we allow Prescription

● Preventing frivolous claims - in effect, it is a special statute of

limitations for recovering possession of land by preventing stale
and frivolous claims by providing occupant with security of tenure.

● Correcting title defects - lengthy possession is treated as proof of

title; solves problems of longtime errors

● Encouraging development - transfers ownership from idle owners

to industrious squatters

● Protecting personhood - “A thing which you have enjoyed and

used as your own for a long time, ….. takes root in your being and
cannot be torn away without your resenting the act.”1

◆ Elements Necessary for Prescription to Take Place

● Actual Possession

○ The claimant must physically use the land in the same

manner that a reasonable owner would, given its character,
location, and nature.

● Exclusive Possession

○ The claimant’s possession cannot be shared with the owner

or with the public in general.

● Open and Notorious Possession

○ The claimant’s possession must be visible and obvious, so

that if the owner made a reasonable inspection of the land,
he would become aware of the adverse claim.

● Adverse and Hostile Possession

○ The claimant’s possession must be in against that of the

owner. (See acts merely tolerated)

1 Oliver Wendell Holmes, Jr. The Path of the Law, 10 Harv. L. Rev. 457 (1897)

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 ● Continuous Possession

○ The claimant’s possession must be as continuous as a

reasonable owner’s would be, given the character, location,
and nature of the land.

● Under a claim of title

○ Intention to acquire

● After the Statutory Period

○ After the period given by the law for the perfection of the title.

◆ Acquisition of Ownership by Prescription under the Civil Code

● Adverse Possession in the Concept of an Owner - Possession

acquired and enjoyed in the concept of owner can serve as a title
for acquiring dominion (Art. 540, NCC and Art. 1118, NCC)

● By prescription, one acquires ownership and other real rights

through the lapse of time in theater and under the conditions laid
down by law. In the same way, rights and conditions are lost by
prescription (Art. 1106, NCC).

○ Possession has to be in the concept of an owner, public,

peaceful and uninterrupted (Art. 1118, NCC).

○ However, lands registered under the Torrens System of land

registration is not subject to prescription (Section 47, PD No.
1529 or the Property Registration Decree, “Section 47.
Certificate not subject to prescription. No title to registered
land in derogation of the title of the registered owner shall be
acquired by prescription or adverse possession.”

◆ Kinds of Acquisitive Prescription

● Ordinary Acquisitive Prescription - requires possession of things

in good faith and with just title for the time fixed by law (Art. 1117,
NCC).

○ The good faith of the possession consists in the reasonable

belief that the person from whom he received the thing was
the owner and could transmit ownership (Art. 1127).

!24
 ○ There is just title when the adverse claimant came into
possession of the property through one of the modes
recognized by law for the acquisition of ownership or other
real rights, but the grantor was not the owner or could not
transmit any right (Art. 1129, NCC).

○ Just title has to be proved and is never presumed (Art. 1131,

NCC).

● Extraordinary Acquisitive Prescription - Acquisition of ownership

and other real rights over things through uninterrupted possession
without need of title or of good faith (Art. 1137, NCC). Possession is
in bad faith or with knowledge that some other person has a rightful
claim over the property at the time of possession.

◆ Rules on Prescription

● Properties that cannot be acquired by Prescription

○ All things which are within the commerce of men are

susceptible of prescription, unless otherwise provided.
Property of the State or any of its subdivision not patrimonial
in character shall not be the object of prescription. (Art. 1113,
NCC)

○ Movables possessed through a crime can never be acquired

through prescription by the offender (Art. 1133, NCC)

○ Prescription does not apply in lands registered under the

Torren’s System of Land Registration

◆ The possession of immovables and other real rights is

not deemed lost, or transferred for purposes of
prescription to the prejudice of third persons, except
in accordance with the provisions of the Mortgage
Law and the Land Registration laws. (Art. 557, NCC)

◆ Presidential Decree No. 1529 (Property Registration

Decree) - “ Section 47. Registered land not subject to
prescriptions. No title to registered land in derogation
of the registered owner shall be acquired by
prescription or adverse possession.“

!25
 ◆ The Spanish Mortgage Law or Ley Hipoticaria was
discontinued under PD No. 1529, Section 3 and all
Spanish titles were considered as unregistered lands.

◆ Torrens Title System in the Philippines was introduced

under Act No. 496 or the Land Registration Act in
1902.

● Acts of possession by mere tolerance of the owner is not

adverse possession for purposes of prescription (Art. 1119, NCC)

● Interruptions to Possession

○ Possession is interrupted naturally or civilly (Art. 1120, NCC).

◆ Natural - when through any cause it should cease for

more than one year and the old possession is not
revived if a new possession should be exercise by the
same adverse claimant (Art. 1121, NCC).

◆ Civil - by judicial summons to the possessor (Art.

1122). Possession in wartime when the civil courts are
not open, shall not be counted in favor of adverse
claimant (Art. 1136, NCC)

◆ Adverse possessor makes express or tacit recognition

of owner’s right (Art. 1125, NCC)

● Rule on Computing time (Art. 1138, NCC)

○ Period of possession required for Prescription to take Effect

◆ Ordinary Prescription

● Ownership and other real rights over

immovable property are acquired by ordinary
prescription through possession of ten years
(Art. 1134, NCC).

● Ownership of movables prescribed through

uninterrupted possession of four years in good
faith (Art. 1132, par. 1, NCC)

◆ Extra-ordinary Prescription

!26
 ● Ownership and other real rights over
immovable prescribe through uninterrupted
adverse possession for thirty years (Art. 1137,
NCC).

● Ownership of movables prescribes through

uninterrupted possession for eight years,
without need of any condition (Art. 1132, par. 2,
NCC)

○ Tacking of possession

◆ The joint of consecutive period of possession by

different persons to treat the periods as one
continuous period; esp., the adding of one’s own
period of land possession to that of a prior possessor
to established continuous adverse possession for the
statutory period.

◆ There is tacking of possession if the successive

occupants are in privity with each other.

◆ Civil Code Provisions - The present possessor may

complete the period necessary for prescription by
tacking his possession to that of his grantor or
predecessor in interest. (Article 1138, NCC)

○ Tolling of Possession

◆ The running of the time for acquisitive prescription is

interrupted as when the adverse possessor was
dispossessed from the property

○ Possession is presumed as continuous

◆ It is presumed that the present possessor who has

also the possessor at a previous time, has continued
to be in possession during the intervening time,
unless there is proof to the contrary.

!27
 § Accession
§ Concept
➔ Roman Law
◆ Accession (from Latin accedere, to go to or to approach) in law, is a
method of acquiring property adopted from Roman law (accessio) by
which, in things that have a close connection with or dependence on one
another, the property of the principal draws after it the property of the
accessory, according to the principle, accessio cedet principali.

◆ Accession in Roman Law is the union of one thing with another either by
natural forces or artificially so that they for an organic unity.

◆ Accessio Cedet Principali (An addition to the principle thing becomes

part of it) - A maxim meaning that a subordinate thing that is attached to a
principal thing loses its independence or identity by merger with the
principal thing.

➔ Under the Civil Code of the Philippines:

◆ There are two types of accession under the Civil Code, these are:

● Accession discreta- right of the owner pertaining to the fruits

● Accession continua - right of the owner pertaining to things

attached or incorporated

◆ The law assigned ownership of things produced to the owner of the

principal (Art. 440, 441 and 422, NCC)

● Natural - spontaneous products of the soil, and the your and other
products of animals;

● Industrial - produced by lands of any kind through cultivation or

labor; and

● Civil - rents of building, the price of leases of lands and other

property and the amount of perpetual or life annuities or there
similar income.

◆ The law presumed that the accessory thing belongs to owner of the
principal

!28
 ● The possession of real property presumes that of the movables
therein, soloing as it is not shown that they should be excluded (Art.
542, NCC)

● The possession of movable is not deemed lost so long as they

remain under the control of the possessor even though for the time
being he may not know their whereabouts (Art. 556, NCC)

§ Accession in Immovable Property

➔ General rule
◆ All that is built, planted or sown on the land is presumed to belongs to the
land owner (Art. 445, NCC) unless the contrary is proved (Art. 446, NCC)

◆ Drift woods belongs to the owner of the land unless claimed with payment
for expenses in the gathering and preservation

◆ Accretion on river banks under Art. 457, NCC belongs to the owner but
does not include accretion on lakes

◆ Rule on avulsion under Art. 459, NCC

◆ Rule on changes is the course of rivers Art. 46, Art. 462 and Art. 465, NCC

◆ Rule on Islands

➔ Rule on Builder, Planter and Sower on Lands of Another

◆ Builder, Planter, and Sower in good faith (Art. 448, NCC)

● Owner appropriate the property with payment of indemnity

● BPS may be compelled to pay for the land or to pay rent

◆ Builder, Planter and Sower in bad faith (Art. 449/450, NCC)

● Owners acquires the BPS without payment of indemnity

● or/Owner demands demolition with restoration

● or/Owner pays the land/rent

● BPS is entitled to reimbursement for the preservation of the land

(Art. 452, NCC)

!29
 ● BPS in bad faith is entitled to reimbursement for the necessary
expenses for preservation

● BPS is bad faith is always liable for and with damages (Art. 451,
NCC)

◆ Both owner and BPS is in bad faith (Art. 453, NCC)

● Treated as if both acted in good faith

● Cancels out the bad faith of each

● There is bad faith on the part of the owner if he has knowledge and
did not oppose the BPS on his land? If the owner acted on bad faith
while the TP acted on goodbye faith, the BPS has the right of a
material man under Art. 447

◆ Rule on Persons Providing Materials to Owners

◆ Rights of material men - Payment, removal if it will cause no injury and

removal with injury if the owner acted on bad faith (Art. 447, NCC)

§ Accession in Movable Property

➔ General Rule
◆ Owner of the principal acquires the accessory with indemnity (Art. 466,
NCC)

● Definition of Principal

○ Not the ornament (Art. 467, NCC)

○ The one with greater value (Art. 468, NCC)

○ The one with greater volume (Art. 468, NCC)

➔ Rule on Separation
◆ The Principal does not acquire the Accessory if the two objects can be
separated without injury. (Art. 469, 2nd par., NCC)

◆ When the accessory is more valuable than the principal, the owner may
demand separation even if there would be injury.

◆ If the things are mixed (no principal/accessory), proportional division

bearing in mind the value of the things mixed. (Art. 472, NCC)

!30
➔ Rule on Acquisition if there is Bad Faith (Art. 470, NCC)
◆ Owner of Accessory in Bad Faith - owner of the accessory loose the thing
without indemnity

◆ Owner of Principal in Bad Faith - owner of accessory may choose

reimbursement with damages or separation with damages.

◆ If both are in Bad Faith, rule is Art. 466, NCC

◆ In case of Bad Faith in mixture/confusion

◆ Owner in BF loosed his property with indemnity (Art. 473, NCC)

➔ Rule on owners of materials

◆ The maker in Bad Faith, owner of the material shall have the right to
appropriate the work without payment or demand value of the material
with damages

◆ Ownership of Materials Used

● In consensual contracts, payment of the materials

● If the material was use without consent, indemnity and delivery of a

thing equal in kind or value or price according to expert appraisal.
(Art. 471, NCC)

● Labor/Craft in good faith - craftsman acquires the materials with

with indemnity for the value of the materials, if the material is more
valuable than the finish goods, owner pays for the value of the work
or demand indemnity for the material (Art. 476, NCC)

➔ Rules on Third Persons

◆ Reimbursement under Art. 443 of NCC - if the owner receives a fruit, he
should pay third persons who incur expenses in its production, gathering
and preservation.

!31
§ Trespass, Interference and Nuisance
§ Trespass
➔ Concept
◆ Trespass to land is committed when an individual or the object of an
individual intentionally enters the land of another without a lawful excuse.
Trespass to land is actionable per se. Thus, the party whose land is
entered upon may sue even if no actual harm is done.

◆ Trespass to chattels, also known as trespass to goods or trespass to

personal property, is defined as "an intentional interference with the
possession of personal property”. Trespass to chattel does not require a
showing of damages. Simply the "intermeddling with or use of the
personal property" of another gives cause of action for trespass.

◆ Trespass to land is the most commonly associated with the term trespass;
it takes the form of an unlawful physical invasion or usurpation of rights in
real property”. In acts of trespass, the trespasser should have no legal
right on the property

◆ Generally, it is not necessary to prove harm to a possessor's legally

protected interest; and

◆ Liability for unintentional intrusions; see good faith and bad faith.

◆ Trespass to chattels, also known as trespass to goods or trespass to

personal property, is defined as "an intentional interference with the
possession of personal property by another.

◆ The lessor is not obliged to answer for a mere act of trespass which a
person may cause on the use of the thing leased; but the lessee shall
have a direct action against the intruder (Art. 1664, NCC)

◆ Mere acts of trespass does not suspend payment in sale (Art. 1590)

➔ Cause of Action
◆ The owner has the right of action against the holder and possessor of the
thing in order to recover it. (Art. 428, Par. 2, NCC)

◆ Presumption of ownership is given to actual possessor (Art. 433, NCC)

!32
 ◆ In an action to recover, plaintiff must rely on the strength of his title and not
on the weakness of the defendant’s claim (Art. 434, NCC)

➔ Remedies in Trespass in Real Properties

◆ Self Help (Art. 429, NCC)

● The owner or lawful possessor of a thing has the right to exclude

any person from the enjoyment and disposal thereof. For this
purpose, he may use force as may be reasonable necessary to
repel or prevent an actual or threatened unlawful physical invasion
or usurpation of his property.

◆ Criminal Prosecution

● Usurpation of Real Rights under Article 312 of the RPC

○ By means of violence against or intimidation of persons

takes possession of any real property

○ Usurp any real rights in property belonging to another

● Other Form of Swindling under Article 316 of the RPC

○ Any person who pretending to be the owner of any real

property shall convey, sell, encumber of mortgage the same

○ Any Person who knowing that the property is encumbered

shall dispose the same although such encumbrance is not
recorded

○ Any person who sell, mortgage or encumber real property

use as surety in a bond

◆ Civil Action for recovery of Possession

● Accion Interdictal or Forcible Entry and Unlawful Detainer

○ An action instituted by a person deprived of the possession

of any land or building by force, intimidation, threat, strategy,
or stealth (Forceable Entry) or a landlord, vendor, vendee or
other person against whom the possession of any land or
building is unlawfully withheld after the expiration of any
contract, express or implied (Unlawful Detainer).

○ Action is instituted with the Municipal/City Trial Court

!33
 ○ Action must be instituted within one year

◆ From time of unlawful deprivation

◆ Demand to vacate

○ Relief is restitution of possession with damages and costs

○ Procedure is covered by Rule 70 of the Rules of Court on

Forcible Entry and Unlawful Detainer

◆ Summary Procedure

◆ Immediate Execution on Judgement

◆ A possessor deprived of his possession may within

ten days from filing of the complaint present a motion
to secure from the court a writ of preliminary
injunction to restore him in his possession. Court must
decide the motion within thirty (30) days. (Art. 539)

◆ Acción Publiciana

● If cause of dispossession is not FEUD or upon expiration of one

year to commence an action for FEUD

● Juridical possession is already lost - after one year from

dispossession

◆ Accion Reinvidicatoria (Recovery of Ownership and Possession)

● The action is for recovery of ownership and not just possession

● The defendant claims ownership over the land such as when there
is adverse possession

◆ Quieting of Title

● An action brought to remove a cloud on title to real property by

reason of any instrument, record, claim, encumbrance or
proceedings which is apparently valid or effective but is in truth and
in fact invalid, ineffective or unenforceable, and may be prejudicial
to said title. (Art. 476)

● Legal or equitable title to or interest to real property

!34
 ● Return of all the benefits acquired by the plaintiff to the defendant
(Art. 479)

◆ Writ of Possession - A separate action for recovery of possession is not

necessary, the court may issue a writ of possession to eject the occupant
of the land in the following instances:

● Land Registration Proceedings

● Extra-judicial Foreclosure of Mortgage as against the mortgagor

● Judicial Foreclosure as against the mortgagor

● Execution Sale

◆ Eviction and Demolition under Republic Act No. 7279 (Urban Development
and Housing Act of 1992)

● Section 28. Eviction and Demolition - Eviction and demolition shall

be discourage. Eviction and demolition, however, may be allowed
under the following situations:

○ When persons or entities occupy danger areas such as

esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as
sidewalks, roads, parks and playgrounds;

○ When government infrastructure projects with available

ending are about to be implemented; or

○ When there is a tour order for eviction and demolition.

● In the execution of eviction and demolition orders involving

underprivileged and homeless citizens, the following shall be
mandatory:

○ Notice upon the affected person at least thirty (30) days prior
to the date of eviction or demolition;

○ Adequate consultations on the matter of settlement with the

duly designated representatives of the families to be
resettled and the affected communities in areas where they
are to be relocated;

!35
 ○ P r e s e n c e o f l o c a l g o v e r n m e n t o ff i c i a l s o r t h e i r
representatives during eviction or demotion;

○ Proper identification of all persons taking part in the

demolition;

○ Execution of eviction or demolition only during regular office

hour from Mondays to Fridays and during good weather
unless the affected families consent otherwise;

○ No use of heavy equipment for demotion except for

structures that are permanent and of concrete materials;

○ Proper Uniform for members of the PNP who shall occupy

the first line of law enforcement and observe proper
disturbance control procedure; and

○ Adequate relocation, whether temporary or permanent,

provided, however that in cases of eviction and demolition
pursuant to a court order involving underprivileged and
homeless citizens, relocation shall be undertaken by the
local government unit concerned and the National Housing
Authority with the assistance of other government agencies
within forty-five (45) days from service of notice of final
judgement by the court, after which period the said order
shall be executed: provided, further, that should relocation
not be impossible with the said period, financial assistance in
the amount equivalent to the prevailing minimum wage
multiplied by sixty (60) days shall be extended to the affected
families by the local government unit concerned.

➔ In Personal Property
◆ Self Help (Art. 429, NCC)

● The owner or lawful possessor of a thin has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose,
he may use force as may be reasonable necessary to repel or
prevent an actual or threatened unlawful physical invasion or
usurpation of his property.

◆ Criminal Prosecution

● Revised Penal Code Book II, Title 10 "Crime against Property"

!36
 ○ Robbery

○ Brigandage

○ Theft

○ Arson

○ Malicious Mischief

◆ Replevin

● Is a lawsuit that enables a person to get back personal property

taken wrongfully or unlawfully and get compensation for resulting
losses

● From medieval times, there has also come down to us a summary

process, known as replevin, by which a man out of whose
possession goods have been taken may obtain their return until the
right to the goods can be determined by a court of law. Replevin
arose out of the need of a turbulent society to discourage resort to
self help and although for a long time primarily used in disputes
about distress between landlord and tenant, it was gradually
expanded to cover all cases of allegedly wrongful dispossession. If
the plaintiff wanted return of his chattel in specie, replevin was a
more appropriate remedy than either trespass or trover in which
only damages could be recovered. Restoration of the property is, of
course, only provisional, pending determination of title.

● Rule 60 of the Rules of Court (Recovery of possess of personal

property)

○ A party praying for the recovery of possession of personal

property ay, at the commencement of the action or at any
time before answer, apply for an order for the delivery of
such property to him.

○ The applicant must give bond, executed to the adverse party

in boodle the value of the property, for the return of the
property to the adverse party if such return be adjudged and
for the payment to the adverse party of such sum as he may
recover from the applicant in the action.

!37
 ○ The adverse party may file a counter bond double the value
of the property

§ Interference
➔ Concept

◆ A duty with which the law of torts is concerned is to respect the property
of others and a cause of action ex delicti may be predicated upon an
unlawful interference by one person with the enjoyment by another of his
private property. One is liable for in an action for damages for a non-
trespassory invasion of another’s interest in the private use and enjoyment
of land if (a) the other has property rights and privileges with respect to the
use or enjoyment interfered with, (b) the invasion is substantial, (c) the
defendant’s conduct is a legal cause of the invasion and (d) the invasion is
either intentional and unreasonable or unintentional and actionable under
the general negligence rules.

➔ The elements of tort interference are:

◆ Existence of a valid contract;

◆ Knowledge on the part of the third person of the existence of contract; and

◆ Interference of the third person is without legal justification or excuse. [30

Am Jur., Section 19, pp. 71-72; Sampaguita Pictures Inc. vs. Varquez, et
al. (Court of Appeals, 68 O.G. 7666)]

➔ There is an actionable non-trespassory invasion of another's interest in the

private use and enjoyment of asset if:

◆ The other has property rights and privileges with respect to the use or
enjoyment interfered with;

◆ The invasion is substantial;

◆ The defendant's conduct is a legal cause of the invasion; and

◆ The invasion is either intentional and unreasonable or unintentional and

actionable under general negligence rules.

➔ Cases:

◆ CS Gilchrist vs. EA Cuddy (G.R. No. L-9356, February 18, 1915)

!38
 ● Facts: Cuddy is the owner of the film “Zigomar” while Gilchrist is the
owner of a theatre in Iloilo. Cuddy lease the film to Gilchrist
beginning May 26, 1913 for P125 a week. Later, Cuddy returned
the money to Gilchrist because Espejo rented it for P350 a week.
Gilchrist ask for injunction.

◆ So Ping Bun vs. Court of Appeals and Tek Hua Enterprising Corporation
(G.R. No. 120554, September 21, 1999)

● Dee C. Chua & Sons (Lessor) ==== Tek Hua (lessee) ===] 4 lease
contracts of one year then month to month == trading to
Enterprises in 1976 (Manuel C. Tiong) === So Ping Bun of Trend
Setter Marketing occupied the premises in 1986 === 1989 DCCSI
sent letter to Tek Hua Enterprises regarding increase of rent ==
1991 Tiong sent letter to So Ping Bun telling him that he needs the
premises now. In 1992 So Ping Bun contracted with DCCSI. Tek
Hua filed an action for nullification of the lease. HELD: In the instant
case, it is clear that petitioner So Ping Bun prevailed upon DCCSI
to lease the warehouse to his enterprise at the expense of
respondent corporation. Though petitioner took interest in the
property of respondent corporation and benefited from it, nothing on
record imputes deliberate wrongful motives or malice on him.
Damages was reduced.

§ Nuisance
➔ Concept

◆ Definition: A condition, activity, or situation that interferes with the use or

enjoyment of property especially a non-transitory condition or persistent
activity that either injures the physical condition of adjacent land or
interferes with the use or with the enjoyment of another of his property.

◆ Persons in possession of real property (land owners, lessors, etc.) are

entitled to the quiet enjoyment of their lands. If a neighbour interferes with
that quiet enjoyment, either by creating smells, sounds, pollution or any
other hazard that extends past the boundaries of the property, the affected
party may make a claim in nuisance.

◆ Competing property uses often posed a nuisance to each other and as a

result, the cost of litigation to settle the conflict became prohibitive. As a
response, local governments started to adopt zoning ordinances or a

!39
 system of land use planning that allows only certain activities in a given
location. Zoning generally overrules nuisance.

◆ Modern legislations on the environment is an adaptation of the doctrine of

nuisance to the more modern complex societies. In this new context, a
person's use of his properties may be regulated although the harmfully
affect of his actions on his neighbour is far from the traditional nuisance
activities.

◆ Tort arising from such acts, conditions, or failures to act when they occur
unreasonably, the main feature of which is the interest invaded is the use
or enjoyment of property rights. The tort emphasizes the harm to the
plaintiff rather than the conduct of the defendant.

◆ Legally, the term nuisance is traditionally used in three ways:

● Describes an activity or condition that is harmful or annoying to

others

● Describe the harm caused by the aforementioned activity or

condition

● Describe a legal liability that arises from the combination of the two.

➔ Nuisance under the Civil Code:

◆ An act, omission, establishment, business, condition of property or

anything which injures, annoys, offends, shocks, defies decency, morality,
obstructs or interferes with free passage or hinders or impairs the use of
property (Art. 694, NCC)

➔ Nuisance according to the object or objects that it affects (Art. 695, NCC) - Public
and Private Nuisance (Art. 695, NCC)

◆ Public Nuisance or Common Nuisance affects a community or

neighborhood or any considerable number of persons although the extent
of annoyance or range or damage is unequal

◆ Private nuisance affects only specific individuals and not the whole
community; violates only private rights

➔ Nature of Nuisance

◆ Per Se - nuisance at all times and under any circumstances, regardless of

location or surroundings

!40
 ◆ Per Incidens - nuisance by reason of the circumstance and surroundings

◆ A nuisance per se when it affects the immediate safety of persons and

property may be summarily abated under the law of necessity.

◆ A nuisance per incidens, which depend upon certain conditions and

circumstance, and its existence being a question of fact, cannot be abated
without due hearing or judicial intervention.

➔ Easement against nuisance

◆ Every building or piece of land is subject to easement which prohibits the

proprietor or possessor from committing nuisance through noise, jarring,
offensive odor, smoke, heat, dust, water glare and other causes (Art. 682,
NCC)

◆ Subject to zoning, health, police and other laws and emulations, factories
and shops may be maintained provided the least possible annoyance is
caused to the neighbourhood (Art. 683, NCC)

◆ Condemnation of Property by reason of health, safety or security (Art. 436,

NCC)

● The owner of a property is not entitled to compensation when it is

condemned by the State by reason of health, safety or security

● Unless such action is unjustified

➔ Remedies

◆ Prosecution under the Penal Code

● Limited to public nuisance

◆ Civil Action

● If public nuisance - action shall be commence by the city (Art. 701)

● Exception - it may be filed by a private person if it is specially

injurious to him

● Torts and Damages

○ A private nuisance is a civil wrong; it is the unreasonable,

unwarranted, or unlawful use of one's property in a manner
that substantially interferes with the enjoyment or use of

!41
 another individual's property, without an actual Trespass or
physical invasion to the land.

○ A public nuisance is a criminal wrong; it is an act or omission

that obstructs, damages, or inconveniences the rights of the
community. A public nuisance interferes with the public as a
class, not merely one person or a group of citizens.
However, if the individual suffers harm that is different from
that suffered by the general public, the individual may
maintain a tort action for damages. For example, if
dynamiting has thrown a large boulder onto a public
highway, those who use the highway cannot maintain a
nuisance action for the inconvenience. However, a motorist
who is injured from colliding with the boulder may bring a tort
action for personal injuries.

○ Private Nuisance as Tort

◆ To determine accountability for an alleged private

nuisance, a court will examine three factors:

● The defendant's fault - the intention or the

negligence of the defendant that interfered with
the plaintiff's use and enjoyment;

● The degree of interference with the plaintiff's

interest - The law is not intended to remedy
trifles or redress petty annoyances. The
interference with the plaintiff's interest must be
substantial.

● The reasonableness of the defendant's

conduct - The law recognizes that the activities
of others must be accommodated to a certain
extent, particularly in matters of industry,
commerce, or trade. The nature and gravity of
the harm is balanced against the burden of
preventing the harm and the usefulness of the
conduct.

● The following are factors to be considered:

○ Extent and duration of the disturbance;

!42
 ○ Nature of the harm;

○ Social value of the plaintiff's use of his

or her property or other interest;

○ Burden to the plaintiff in preventing the

harm;

○ Value of the defendant's conduct, in

general and to the particular community;

○ Motivation of the defendant;

○ Feasibility of the defendant's mitigating

or preventing the harm;

○ Locality and suitability of the uses of the

land by both parties.

◆ Abatement without judicial proceeding

● Public Nuisance by Officers of the Law(Art. 700-703)

○ Exercise of police power by the State - the State may

authorise its officers to abate public nuisance without resort
to legal proceedings and without notice or hearing;

○ Limitation - it must be reasonable and effectively exercise;

not unduly oppressive to individuals; the injury must be done
to the property is necessary to accomplish the abatement
(Art. 707 provides that person performing extra-judicial
abatement may be liable for damages if he causes
unnecessary injury or the the alleged nuisance is declared
by the court as not a real nuisance.

○ Owner of the property not entitled to compensation

● Public Nuisance by Private Persons (Art. 704)

○ Private persons may abate a public nuisance that are

injurious to him by removing or if necessary destroying the
thing; in extreme necessity; timeliness

○ Must not breach the peace

○ Demand must be made to abate and owner refused

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 ○ Must be made with the approval of the district health officer
and with assistance of the local police

○ The value of the property must not exceed three thousand

pesos

● Private Nuisance by Private Persons (Art. 706)

○ Procedure is similar to abatement of public nuisance by

private person

§ LIMITATIONS OF OWNERSHIP
§ INJURIOUS USE
➔ General Rule

◆ An owner cannot make use of the property in such manner as to injure the
rights of a third person;

◆ Property owners are protected against public and private nuisance (See
discussion on Nuisance); and

◆ Property has a social function

➔ Example under the Civil Code:

◆ On Ruinous Buildings and Trees in Danger of Falling under Chapter 4,

Sections 482-483, NCC

● Owner has the obligation to demolish or to execute necessary work

● Administrative authority may order its demolition or to take

measures to insure public safety

§ EASEMENTS AND SERVITUDES

➔ Definitions

◆ Easement

● An interest in land owned by another person, consisting in the right

to use or control the land, or an area above or below it, for specific
limited purpose such as to cross it for access to a public road.
Easements are inseparable from the estate to which they actively

!44
 or passively belong. Unlike lease, an easement may last forever,
but it does not give the holder the right to possess, take from,
improve or sell the land.

◆ Under the Civil Code

● An easement or servitude is an encumbrance imposed upon an

immovable for the benefit of another immovable belonging to a
different owner. Servitudes may also be established for the benefit
of a community, or of one or more persons to whom the
encumbered estate does not belong (Articles 613, 614, 617 and
618, NCC).

○ Dominant Estate - The land benefitting from the estate is

called the dominant estate

○ Servient Estate - The land burdens by an easement is called

servient estate

➔ Kinds of Easements

◆ Continuous or Discontinuous

◆ Apparent or Non-apparent

◆ Positive or Negative

◆ Legal and Voluntary

◆ Legal and Private Easements

● Legal Easements: imposed by law for public use - governed by

special laws

● Private Easements: governed by the provisions of the Civil Code;

without prejudice to the provisions of general or local laws and
ordinances for the general welfare. These easements may be
modified by agreement of the interested parties, whenever the law
does not prohibit it or no injury is suffered by a third person.

➔ Modes of Acquiring Easements

◆ By Prescription

● Continuous and apparent easements - by title or prescription of 10

years

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 ◆ By Title

● Continuous non-apparent and discontinuous easements - by title

only

➔ Rights and Obligations (Article 627-630)

◆ Dominant Estate

● The owner of the dominant estate may, upon notice to the owner of
the servant estate, make at his own expense any works necessary
for the use and preservation of the servitude, but without altering it
or rendering it more burdensome.

● Rules

○ Most convenient time;

○ Most convenient manner; and

○ Least inconvenience

◆ Servient Estate

● The owner of the servient estate cannot impair, in any manner

whatsoever, the use of the servitude. The owner of the servient
estate retains the ownership of the portion on which the easement
is established, and may use the same in such a manner as not to
affect the exercise of the easement.

● Exception - should the easement become very inconvenient to the

owner of the servient estate, it may be changed at his expense,
provided he offers another place or manner equally convenient
without injuring the dominant estates.

➔ Extinguishment of Easements

◆ By merger;

◆ By prescription or non-user (form and manner) for ten years, however, If

the dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the
others;

◆ By its condition making the easement unusable unless revived prior to

prescription;

!46
 ◆ By the contract (term, condition, redemption) as agreed by the owners of
the dominant and servient estate; and

◆ By the renunciation of the owner of the dominant estate

➔ Special Law: Presidential Decree No. 1096 (National Building Code of the
Philippines

◆ Repealed Republic Act No. 6541 (An Act to Ordain and Institute a National
Building Code of the Philippines

◆ Section 301. Building Permits. - No person, firm or corporation, including

any agency or instrumentality of the government shall erect, construct,
alter, repair, move, convert or demolish any building or structure or cause
the same to be done without first obtaining a building permit therefor from
the Building Official assigned in the place where the subject building is
located or the building work is to be done.

◆ Chapter 2: Administration and Enforcement (related to nuisance)

◆ Chapter 6: Fire Resistive Requirements in Construction (related to party

walls)

◆ Chapter 8: Light and Ventilation (related to party walls, light and view)

◆ Chapter 9: Sanitation (related to waters, drainage of buildings)

◆ Chapter 10: Building Projection Over Public Streets (related to right of

way, light and view, distances)

◆ Chapter 12: General Design and Construction Requirements (related to

lateral and subjacent supports)

◆ Chapter 20: Signs (related to light and view)

§ Forms of Easement
➔ Easement of Right of Way

◆ Definition - The right to pass through property owned by another. ROW

can be established by contract, by longstanding use or by law.

● Articles 649 to 657 of the Civil Code

◆ Compulsory Right of Way

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 ● A person may demand ROW if his property is enclosed by other
properties under the following conditions.

○ That the dominant estate is surrounded by other immovables

and has no adequate outlet to a public highway (Art. 649,
par. 1);

○ After payment of proper indemnity (Art. 649, par. 1, end);

○ That the isolation was not due to acts of the proprietor of the
dominant estate (Art. 649, par. 4); and

○ That the right of way claimed is at the point least prejudicial

to the servient estate; and insofar as consistent with this
rule, where the distance from the dominant estate to a public
highway may be the shortest. (Art. 650)

◆ Executive Order No. 621, s. 1980 (Amended EO 113, s. 1955)

● National roads shall have a right of way of not less than twenty (20)
meters, provided that such minimum width may be reduced at the
discretion of the Minister of Public Highways to fifteen (15) meters
in highly urbanized areas, and that a right of way of at least sixty
(60) meters shall be reserved for roads constructed through
unpatented public land and at least one hundred twenty (120)
meters reserved through naturally forested areas of aesthetic or
scientific value.

◆ What is a setback

● Setback – an offset applied and enforced over a real property, in

the form of negative easement, from property line to building line,
measured perpendicularly.

● Front setback provides “breathing air” for streets, and provisions for
future government constructions

➔ Easement of Party Wall

◆ Covered by Articles 658-666 of the Civil Code

● The easement of party wall shall be governed by the provisions of

this Title, by the local ordinances and customs insofar as they do
not conflict with the same, and by the rules of co- ownership (Art.
658, NCC).

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 ◆ Presumption

● The existence of an easement of party wall is presumed, unless

there is a title, or exterior sign, or proof to the contrary in dividing
walls of adjoining buildings up to the point of common elevation; In
dividing walls of gardens or yards situated in cities, towns, or in
rural communities; and in fences, walls and live hedges dividing
rural lands.

◆ Renunciation

● If the owner of a building, supported by a party wall desires to

demolish the building, he may also renounce his part-ownership of
the wall, but the cost of all repairs and work necessary to prevent
any damage which the demolition may cause to the party wall, on
this occasion only, shall be borne by him (Art. 663, NCC). See also
repairs on party walls.

◆ Repairs

● The cost of repairs and construction of party walls and the

maintenance of fences, live hedges, ditches, and drains owned in
common, shall be borne by all the owners of the lands or
tenements having the party wall in their favor, in proportion to the
right of each. Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-ownership, except
when the party wall supports a building belonging to him (Art. 662,
NCC)

◆ Use

● Every part-owner of a party wall may use it in proportion to the right

he may have in the co- ownership, without interfering with the
common and respective uses by the other co-owners (Art. 666,
NCC).

➔ Easement of Light and View

◆ Right to Light:

● Right to light is a form of easement that gives an owner of a

building with windows a right to maintain the level of illumination
necessary for use in the building.

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 ● Generally a right to light refers to the right to receive sufficient light
through an opening (such as a window), allowing ‘ordinary’
comfortable use and enjoyment of a dwelling, or ‘ordinary’
beneficial use and occupation of other buildings.

● The levels of acceptable light have not been objectively quantified

and are instead assessed on a case by case basis by the courts.
However, “sufficient light according to the ordinary notions of
mankind” and “tangible deprivation to a building” are arguable
expressions that have earned substantial fees to the legal and
surveying professions and given rise to specialists and expert
witnesses in this field.

● Rights to light can be the result of 'easements', or can be ‘nuisance’

issues. It is a nuisance issue if there is interference with a persons
right to enjoy his property, such interference must be ‘unreasonable’
to constitute nuisance.

◆ Covered by Articles 667-673 of the NCC

● General Rule (Art. 667, NCC)

○ No part-owner may, without the consent of the others, open

through the party wall any window or aperture of any kind.

● Two Meter Rule

○ No windows, apertures, balconies, or other similar

projections which afford a direct view upon or towards an
adjoining land or tenement can be made, without leaving a
distance of two (2) meters between the wall in which they
are made and such contiguous property. Neither can side or
oblique views upon or towards such conterminous property
be had, unless there be a distance of sixty centimeters. The
non-observance of these distances does not give rise to
prescription (Article 670, NCC).

○ Whenever by any title a right has been acquired to have

direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in article 671. Any

!50
 stipulation permitting distances less than those prescribed in
article 670 is void. (Articles 673, NCC)

● Exception to the Two Meter Rule

○ When the distances in Article 670 are not observed, the

owner of a wall which is not party wall, adjoining a tenement
or piece of land belonging to another, can make in it
openings to admit light at the height of the ceiling joints or
immediately under the ceiling, and of the size of thirty
centimeters square, and, in every case, with an iron grating
imbedded in the wall and with a wire screen (Article 667,
NCC).

○ Separated by public highway or alley - not applicable to

buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations
and local ordinances (Art. 672, NCC).

● How distance is measured:

○ The distance referred to in the preceding article shall be

measured in cases of direct views from the outer line of the
wall when the openings do not project, from the outer line of
the latter when they do, and in cases of oblique view from
the dividing line between the two properties (Article 671,
NCC).

◆ Covered by Chapter VII (Light and Ventilation) of the National Building

Code of the Philippines (Presidential Decree No. 1096)

● Section 808. Window Openings (P.D. 1096) - Every room intended

for any use, not provided with artificial ventilation system as herein
specified in this Code, shall be provided with a window or windows
with a total free area of openings equal to at least ten percent of the
floor area of room, and such window shall open directly to a court,
yard, public street or alley, or open water courses.

● Section 804 (P.D. 1096) - Size and Dimension of Courts.

○ Minimum size of courts and their least dimensions 


shall be governed by the use, type of construction, and
height of the building as provided in the rules and regulations

!51
 promulgated by the Secretary, provided that the minimum
horizontal dimension of court shall be not less than 2.00
meters.

○ All inner courts shall be connected to a street or yard, either

by a passageway with a minimum width of 1.20 meters or by
a door through a room or rooms.

○ Every court shall have a width of not less than 2.00 meters
for one (1) or two (2) storey buildings. However, if the court
is treated as a yard or vice versa, this may be reduced to not
less than 1.50 meters in cluster living units such as
quadruplexes, rowhouses and the like, with adjacent courts
with an area of not less than 3.00 sq. meters. Provided
further, that the separation walls or fences, if any, shall not
be higher than 2.00 meters.

➔ Easement of Drainage of Buildings (Arts. 674-676)

◆ General Rule: Owner should collect water falling on his land so as not to
cause damage

● The owner shall be obliged to collect the water in such a way as not
to cause damage to the adjacent land or tenement (Art. 674, NCC).

● The owner of a building shall be obliged to construct its roof or

covering in such manner that the rain water shall fall on his own
land or on a street or public place.

◆ Easement of Drainage

● Whenever the yard or court of a house is surrounded by other

houses, and it is not possible to give an outlet through the house
itself to the rain water collected thereon, the establishment of an
easement of drainage can be demanded, giving an outlet to the
water at the point of the contiguous lands or tenements where its
egress may be easiest, and establishing a conduit for the drainage
in such manner as to cause the least damage to the servient
estate, after payment of the property indemnity (Art. 676, NCC).

● The owner a piece of land, subject to the easement of receiving

water falling from roofs, may build in such manner as to receive the
water upon his own roof or give it another outlet in accordance with

!52
 local ordinances or customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate (Art. 675,
NCC).

● Local ordinances: simply adopts the letters of the National Building

Code.

◆ Section 904. Storm Drainage System (P.D. No.1096)

● Rainwater drainage shall not discharge to the sanitary sewer

system.

● Adequate provisions shall be made to drain rainwater from low

areas in buildings and their premises.

● The drainage pipe installation and sewerage system of any

premises and/or connection with any public disposal or any
acceptable terminal shall conform to the Revised National Plumbing
Code of the Philippines.

➔ Easement on Distances (Articles 677-681)

◆ Meaning

● Permanent and prohibitory easements and may run to the land in

perpetuity as long as the conditions that causes the easement
exists;

● May or may not be compensable

◆ Construction near fortresses

● No constructions can be built or plantings made near fortified

places or fortresses without compliance with the conditions required
in special laws, ordinances, and regulations relating thereto (Article
677, NCC).

◆ Building of improvements and structures that may do damage to

neighbouring estates

● No person shall build any aqueduct, well, sewer, furnace, forge,

chimney, stable, depository of corrosive substances, machinery, or
factory which by reason of its nature or products is dangerous or
noxious, without observing the distances prescribed by the
regulations and customs of the place, and without making the

!53
 necessary protective works, subject, in regard to the manner
thereof, to the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation on the
part of the adjoining proprietors. In the absence of regulations, such
precautions shall be taken as may be considered necessary, in
order to avoid any damage to the neighbouring lands or tenements
(Article 678, NCC).

◆ Branches of trees extending and fruits falling over neighbouring estates

● If the branches of any tree should extend over a neighbouring

estate, tenement, garden or yard, the owner of the latter shall have
the right to demand that they be cut off insofar as they may spread
over his property, and, if it be the roots of a neighbouring tree which
should penetrate into the land of another, the latter may cut them
off himself within his property (Article 680, NCC).

● Fruits naturally falling upon adjacent land belong to the owner of

said land (Article 681, NCC).

➔ Easement on Nuisance (Arts. 682-683)

◆ Meaning

● Every building or piece of land is subject to the easement which

prohibits the proprietor or possessor from committing nuisance
through noise, jarring, offensive odour, smoke, heat, dust, water,
glare and other causes (Article 682, NCC).

● Use of property with the least possible annoyance to the

neighbourhood

● Subject to zoning, health, police and other laws and regulations,

factories and shops may be maintained provided the least possible
annoyance is caused to the neighbourhood (Article 683, NCC)

● Dangerous and ruinous buildings are also nuisances under P.D.

1096

○ Section 216. Abatement of Dangerous Buildings – When any

building or structure is found or declared to be dangerous or
ruinous, the Building Official shall order its repair, vacation or
demolition depending upon the degree of danger to life,
health, or safety. This is without prejudice to further action

!54
 that may be taken under the provisions of Articles 482 and
694 to 707 of the Civil Code of the Philippines.

➔ Easement of Lateral and Subjacent support (Arts. 684-687)

◆ Concept

● Lateral and subjacent support, in the law of property, describes the

right a landowner has to have that land physically supported in its
natural state by both adjoining land and underground structures.

● Subsidence

○ Any downward movement of the solid from its natural

position; sinking of the soil.

○ Example - If a neighbour's excavation or excessive

extraction of underground liquid deposits (i.e. crude oil or
aquifers) causes subsidence (e.g. causing the landowner's
land to cave in), the neighbour will be subject to strict liability
in a tort action. The neighbour will also be strictly liable for
damage to buildings on the landowner's property if the
landowner can show that the weight of the buildings did not
contribute to the collapse of the land. If the landowner is
unable to make such a showing, the neighbour must be
shown to have been negligent in order for the landowner to
recover damages.

● Excavations under the Civil Code

○ No proprietor shall make such excavations upon his land as

to deprive any adjacent land or building of sufficient lateral or
subjacent support. Any stipulation or testamentary provision
allowing excavations that cause danger to an adjacent land
or building shall be void. Article 686. The legal easement of
lateral and subjacent support is not only for buildings
standing at the time the excavations are made but also for
constructions that may be erected. Article 687. Any
proprietor intending to make any excavation contemplated in
the three preceding articles shall notify all owners of
adjacent lands (Article 684 - 687, NCC).

● Excavation under PD No. 1096

!55
 ○ Section 1202, P.D. 1096 - Excavation, Foundation, and
Retaining Walls (a) Subject to the provisions of Articles 684
to 686 of the Civil Code of the Philippines on lateral and
subjacent support, the design and quality of materials used
structurally in excavation, footings, and in foundations shall
conform to accepted engineering practice.

➔ Easement relating to waters

◆ Characterization of Water

● Diffuse surface water

○ Common enemy rule - water is common enemy to all so

everyone has a right to get rid of it in any manner they see
fit. The shortcoming of this approach is the failure to consider
the consequences when neighboring land owners are
looking out for their personal interest to the detriment of the
others.

○ Civil law rule - adopted by Civil Law countries; an individual

can get rid of the water in a manner that is in accord with the
natural flow of the water. This approach favors the upstream
land owners at the expense of the downstream.

○ Reasonable use - determines where the water should go

based upon what would be reasonable for the ordinary
person under the circumstance. The approach, while
providing the greatest flexibility, provides the greatest
uncertainty.

● Naturally flowing water

○ Prior appropriation theory - Whoever takes the water first

has superior rights to the water.

○ Natural flow theory - rights to the water are dependent on the

water’s natural flow not being disturbed. Favors the upstart
owners in a potential unfair manner.

○ Reasonable use - determined on a case to case basis

looking at what is reasonable under the circumstance.

● Percolating water

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 ○ Definition - Percolating waters are those which ooze, seep,
or filter through the soil beneath the surface, without a
defined channel, or in a course that is unknown and not
discoverable from surface indications without excavation for
that purpose.

○ Absolute theory - property owner has an absolute ownership

of any water that percolates through their land. May be
unduly prejudicial to neighboring landowners.

○ Corelative rights theory - rights to percolating water are

based on the amount of surface water owned. This does not
consider the need or reward the effort and ingenuity it may
take to remove the water.

○ Reasonable use theory - uses the reasonable person

standard to determine the rights of the rival claimants to the
percolating water.

◆ Articles 637-648 of the NCC

● General Rule

○ Lower estates are obliged to receive the waters which

naturally and without the intervention of man descend from
the higher estates, as well as the stones or earth which they
carry with them. The owner of the lower estate cannot
construct works which will impede this easement; neither
can the owner of the higher estate make works which will
increase the burden.

➔ Easement of Aqueduct

◆ Any person who may wish to use upon his own estate any water of which
he can dispose shall have the right to make it flow through the intervening
estates, with the obligation to indemnify their owners, as well as the
owners of the lower estates upon which the waters may filter or descend.
(Article 642, NCC)

◆ For legal purposes, the easement of aqueduct shall be considered as

continuous and apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the dominant estate, or
upon a schedule of alternate days or hours, (Article 646, NCC)

!57
◆ One who for the purpose of irrigating or improving his estate, has to
construct a stop lock or sluice gate in the bed of the stream from which the
water is to be taken, may demand that the owners of the banks permit its
construction, after payment of damages, including those caused by the
new easement to such owners and to the other irrigators, (Article 647)

◆ Conditions: One desiring to make use of Easement of Aqueduct is obliged:

● To prove that he can dispose of the water and that it is sufficient for
the use for which it is intended;

● To show that the proposed right of way is the most convenient and
the least onerous to third persons;

● To indemnify the owner of the servient estate in the manner

determined by the laws and regulations. (Article 643, NCC)

◆ Limitations:

● Article 644. The easement of aqueduct for private interest cannot

be imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing. (559)

● Article 645. The easement of aqueduct does not prevent the owner
of the servient estate from closing or fencing it, or from building
over the aqueduct in such manner as not to cause the latter any
damage, or render necessary repairs and cleanings impossible.
(560)

● Article 648. The establishment, extent, form and conditions of the

servitudes of waters, to which this section refers, shall be governed
by the special laws relating thereto insofar as no provision therefor
is made in this Code. (563a)

◆ Three (3) meter Easement for Navigation

● The banks of rivers and streams, even in case they are of private
ownership, are subject throughout their entire length and within a
zone of three meters along their margins, to the easement of public
use in the general interest of navigation, floatage, fishing and
salvage. Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage. Indemnity for the

!58
 private owner is necessary only if there is occupation of land for
that purpose.

◆ Building of Dam for Diversion of Water

● Whenever for the diversion or taking of water from a river or brook,

or for the use of any other continuous or discontinuous stream, it
should be necessary to build a dam, and the person who is to
construct it is not the owner of the banks, or lands which must
support it, he may establish the easement of abutment of a dam,
after payment of the proper indemnity. (554)

◆ Building of Dam for Diversion of Water

● Article 640. Compulsory easements for drawing water or for

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

● Article 641. Easements for drawing water and for watering animals
carry with them the obligation of the owners of the servient estates
to allow passage to persons and animals to the place where such
easements are to be used, and the indemnity shall include this
service. (556)

§ Regulating Ownership
§ Police Power
➔ Distributive Justice
◆ Agrarian Reform - Acquisition and Distribution of Private Agricultural Lands

● Friar Lands

● PD No. 72

● CARL

◆ Restrictions on Transfers

➔ Land Use Regulations/Zoning

◆ In General

!59
 ● Interference with the Traditional Property Rights Regime -
Traditionally, land owners have absolute freedom to use land
except only in nuisance and easement.

● Before, few regulations existed to control the use of land, due to the
seemingly endless amounts of it. As society shifted from rural to
urban, public land regulation became important, especially to city
governments trying to control industry, commerce, and housing
within their boundaries. The first zoning ordinance was passed in
New York City in 1916 and, by the 1930s, most states had adopted
zoning laws. In the 1970s, concerns about the environment and
historic preservation led to further regulation.

● Criticism of zoning laws comes from those who see the restrictions
as a violation of property rights. It has been argued that local
zoning authorities can too easily strip property owners of their right
to unencumbered use of their land.

● Criticized as a means to promote social and economic segregation

through exclusion. These exclusionary zoning measures artificially
maintain high housing costs through various land-use regulations
such as maximum density requirements. Thus, lower income
groups deemed undesirable are effectively excluded from the given
community. i.e. gated subdivisions vs. slums

● In the American South, zoning was introduced as an explicit

mechanism for enforcing racial segregation of communities.

● Work against economic efficiency and hinder development in a free

economy. Poor zoning restriction are claimed to hinder the optimal
efficient usage of a given area.

◆ Land Use Regulation - Public regulations of the use and development of

land that generally focuses on four aspects of land use, namely:

● The type of use, such as whether it will be used for agricultural,

commercial, industrial, or residential purposes;

● The density of use, manifested in concerns over the height, with,

bulk or environmental impacts of the physical structure of the land;

● The aesthetic impact of the use, which may include the design and
placement of the structure of the land; and

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 ● The effect of the particular use of the land on the cultural and social
values of the community

◆ Zoning - describes the control, usually by local authority, of the use of land
and of the buildings and improvements thereon. Areas of land are divided
by appropriate authorities into zones within which various uses are
permitted. It is a tool in land use planing.

◆ Terms

● Non-Conforming Uses - use that is impermissible under current

zoning restrictions but the is allowed because the use existed
lawfully before the restriction took effect.

● Amortisation

● Zoning Amendments

● Zoning Variance - A license or official authorization to depart form a

zoning law.

● Special Exceptions - An allowance in a zoning ordinance for special

use that are considered essential and are not fundamentally
incompatible with the original zoning regulation.

● Spot Zoning - Zoning a particular piece of land without regard for

the zoning of the larger area surrounding the land.

● Private Zoning - The use of restrictive covenants in private

agreement to restrict the use and occupancy of real property.
Private zoning often covers such things as lot size, building line,
architectural specification and property uses.

➔ Laws on Land Use in the Philippines

◆ Batas Pambansa Blg. 220 - Authorizes the ministry of human settlements
to establish and promulgate different levels of standards and technical
requirements for economic and socialized housing projects in urban and
rural areas from those provided under Presidential Decrees No. 957,
1216, 1067 and 1185.

◆ Presidential Decree No. 957 - regulates the sale of subdivision lots and
condominiums.

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 ◆ Presidential Decree No. 1216 - defining "open space" in residential
subdivisions and amended section 31 of Presidential Decree No. 957
requiring subdivision owners to provide roads, alleys, sidewalks and
reserve open space for parks or recreational use)

◆ Republic Act No. 7160 - mandated the LGU to prepare and implement a
comprehensive land use plan (CLUP) and shall approve subdivision plans.

◆ Executive Order No. 71 - implemented the provision of RA No. 7160 on

the LGUs mandate to approve subdivision plans, to cities and
municipalities pursuant to R.A. No. 7160 (LGC).

◆ Executive Order No. 72 - implemented the provision of the LGC for the
preparation and implementation of the comprehensive Land Use Plans.
HLURB’s role on standards.

◆ Republic Act No. 7279 - Urban Development and Housing Act provided a
comprehesive and continuing urban development and housing program,
establish the mechanism for its implementation.

◆ Proposed Land Use Act - 20 years of deliberation in Congress

➔ Environmental Laws and Regulations

◆ In general

● Land use and land management practices have a major impact on

natural resources including water, soil, nutrients, plants and
animals.

● The major effect of land use on land cover since 1750 has been
deforestation of temperate regions. More recent significant effects
of land use include urban sprawl, soil erosion, soil degradation,
salinization, and desertification. Land-use change, together with
use of fossil fuels, are the major anthropogenic sources of carbon
dioxide, a dominant greenhouse gas.

● Many environmental law affects how property can be use.

● Environmental laws developed only in the 1960s and created a

comprehensive legislation that sometimes intersects with laws
governing property.

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➔ Property and Ecology
● Land is not a passive entity waiting to be transformed by its land
owner. Land is already at work, performing important services in its
unaltered state. Some ecological functions have been recognized
and protected by law. Viewing land through the lens of nature’s
economy reduces the significance of property lines. (Joseph L. Sax,
Property Rights and the Economy of Nature, 45 Stan. L. Review.
1433, (1993)

➔ Theories
● Utilitarian theory - land is solely the owner’s property to develop as
the owner please

● Green theory - ecological ethic emphasises the moral duty of

humanity to act as a steward of natural life (J. Peter Bryne, Green
Property, 7 Const. Comment. 239, 243 (1990)

● Public Trust Doctrine - lands are deemed to be owned in trust by

the sovereign for the benefit of the public

● Bundle of rights - title does not include the right to violate the public
trust.

➔ Environmental Laws in the Philippines

● Presidential Decree No. 1586 “Establishing an Environmental
Impact Statement System, including other Environmental
Management Related Measures and for other Purposes”

● Presidential Decree No. 1152 “Philippine Environmental

Code” (amended)

● Republic Act No. 6969 “Toxic Substances and Hazardous and

Nuclear Waste Act of 1990”

● Republic Act No. 8749 “Philippine Clean Air Act”

● Republic Act No. 9003 “Ecological Solid Waste Management Act of

2000”

● Republic Act No. 9275 “Philippine Clean Water Act No. 2004”

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§ Eminent Domain
◆ Art. 435. No person shall be deprive of his property except by competent
authority and for pubic use an always upon payment of just compensation.

§ Taxation
◆ The theorem states that if trade in an externality is possible and there are
sufficiently low transaction costs, bargaining will lead to an efficient
outcome regardless of the initial allocation of property. In practice,
obstacles to bargaining or poorly defined property rights can prevent
Coasian bargaining.

◆ Meaning of Transaction Cost - any direct costs, as well as any

concomitant inefficiencies in production or misallocation that resulted from
them. When property rights are protected and maintained in any context,
transaction costs exist. In economics and related disciplines, a transaction
cost is a cost incurred in making an economic exchange. In the
neoclassical approach, enforcement-type costs within firms are not
transaction costs. Transaction costs consist of those costs that occur
between firms or individuals from the process of market exchange.

◆ If transaction costs are prohibitively high then property rights will neither
be established nor maintained and property rights will be zero. The
reverse, however, is not necessarily true. If property rights are complete in
some situation, there are two possibilities, either transaction costs are
zero, or costs may have been incurred to guarantee the property rights
simply because the benefits of doing so exceed the costs - in which case
transaction costs are positive. Further, when property rights are zero,
transaction costs could also be zero. For example, if a property right could
never be established, despite the resources devoted towards such a goal,
no one would bother making any expenditures towards establishing
property rights and the good would remain unowned. For example, there
are no property rights over the planet Venus and no efforts have been
made to establish any.

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 § DONATION
§ Concept
➔ A voluntary contract by which the donor expressly agrees to give, without
consideration, something to the donee, and the latter in an equally express
manner accepts the gift.

➔ In Roman law and in some modern codes this contract carries with it only the
obligation of transferring the ownership of the thing in question; actual ownership
is obtained only by the real traditio or handing over of the thing itself, or by the
observation of certain juridically prescribed formalities.

§ Elements
➔ Reduction of the patrimony of the donor;

➔ Increase in the patrimony of the donee; and

➔ The intent to do an act of liberality of the donee (animus donandi)

§ Kinds
➔ Simple Donation

◆ Donation is an act of liberality whereby a person disposes gratuitously of a

thing or right in favour of another who accepts it (Art. 725, NCC); and

◆ Ilegal or impossible conditions that are imposed in simple donation are

considered as not imposed (Art. 727, NCC).

➔ Remuneratory

◆ A donation is called remunerative when inspired by a sentiment of

gratitude for services rendered by the donee. (Art. 726, NCC)

◆ Remunerates past services which do not constitute a demandable debts;

and

◆ The donation is not payment for a demandable debts.

➔ Conditional

◆ When a condition, charge or burden (also called “modes”) is is imposed by

the donor to the donee in consideration of the donation. .

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 ◆ It does not affect the rights of the donee. It is an accessory disposition
where the benefit conferred on the donee is restricted by the statement of
the purpose to which the thing shall be applied or the imposition of a
presentation to be performed by the donee.

◆ The portion exceeding the value of the burden imposed constitutes a real
donation while the portion equivalent to the burden is governed by the
rules on obligations and contracts.

➔ Onerous Donation

◆ Donations for a valuable consideration that is demandable agains the

donor or when it imposes a burden equivalent to the value of he donation.

◆ Essentially, this is a contract is is governed by the rules of contracts (Art.

722, NCC)

◆ As to when it will take effect:

● Inter Vivos

○ Art. 729, NCC;

○ The effectivity of the disposition is not made to depend upon

the death of the donor even if the delivery of the property
donated may be postponed until after the donor’s death

● Mortis Causa

○ Art. 728, NCC

○ The donation is made to depend on the death of the donor

○ The intention is to transfer ownership after his death.

● In case of doubt, donations are deemed as inter vivos rather than

mortis causa.

● The taking effect of the donation during the lifetime or after the
death of the donor down not depend upon whether the property is
delivered during such lifetime or after such death. From the
moment the donor disposes gratuitously of his property, and the
disposition is accepted by the donee, a perfect and irrevocable
donation exists. Such donation may be conditional or with a term,
and the term may be the death of the donor. Until the day comes or

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 the condition is fulfilled, the donation is not carried out, but it
produces effect. (Art. 729 and Art. 730, NCC)

➔ Thus, he who donates with a term, although such term may be that of his death,
has disposed already the thing donated, and can no longer revoke the donation,
nor, for that reason, can he disposed of the thing in favor of another.

§ Capacity
➔ Who may give donations or receive donations

◆ All persons who may contract and dispose of their property may make a
donation (Art. 735, NCC);

◆ Donor’s capacity shall be determined as of the time of the making of the

donation (Art. 737, NCC)

● “Making of the Donation” refers to the perfection of the donation;

● After acceptance of the donee of the donation.

◆ Guardians and trustees cannot donate the property entrusted to them (Art.
736, NCC)

➔ Who may accept donations

◆ All those who are not disqualified by law may accept donations. (Art. 738,
NCC)

◆ Those who are incapacitated to succeed by will are disqualified to accept

donation inter vivos. (Art. 740, NCC) Examples:

● Priest who heard the confession of the donor during his last illness

● Relatives of such prints within the 4th degree, the church, order,
etc. of such priests.

● Guardians before the final account of guardianship have been

approved except if the guardian is an ascendant, descendant,
siblings or spouse;

● Physicians, medical attendants, etc.

● Unworthiness is not included since knowledge of this fact

constitutes a pardon. If the cause of unworthiness occurs after the

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 donation, the same cannot be revoke because donation inter vivos
is revoked only for causes under Art. 760, 764 and 765 of the NCC.

➔ Void Donations

◆ Between persons who are guilty of adultery or concubinage at the time of

the donation;

◆ Made to a public officer or his wife, descendants and ascendants, in

consideration of his office.

◆ Applicable to insurance as well

➔ Formalities

◆ Public Instrument

◆ Acceptance, Notification and Ratification

➔ Effects of Donations and Limitations

◆ Present Properties

◆ Future Properties

◆ Inofficious Donations

◆ On Debts and Usufruct

➔ Revocation and Reduction of Donations

◆ Coverage

◆ Extent

◆ Prescription of Action

§ USUFRUCT
§ Concept
➔ Usufruct gives a right to enjoy the property of another with the obligation of
preserving its form and substance, unless the title constituting it or the law
otherwise provides (Art. 562, NCC).

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 ➔ It is constituted by law, by the will of private persons in acts inter-vivos or mortis
cause and by prescription (Art. 563, NCC).

➔ The rights and obligation of the usufructuary are provided in the title or in case of
deficiency by the code (Art. 565, NCC).

§ Rights and Obligation of the Owner

➔ To make any works, improvements and plantings as long as it will not diminish
the usufruct or prejudice the right of the usufructuary

➔ To received the thing at the end of the Usufruct

➔ Things that deteriorates - obligation to return as is

➔ Consumables - pay the appraised value at the time of the usufruct or to return
the same quantity and quality or pay the current price at the time the usufructuary
ceases.

➔ To transfer or alienate the thing but he cannot alter its form or substance or do
anything thereon which may be prejudicial to the usufructuary

➔ To be notified of the inventory and receive security for the thing

➔ To remove trees that may be left in cases of calamities

➔ To administer the thing if the usufructuary fails to give security

➔ To make ordinary repairs if the usufructuary refused after demand, at the

expense of the usufructuary

➔ To pay for extra-ordinary repairs upon notice, right to demand legal interest for
the time the usufructuary last

➔ Pay taxes on that relates directly on the capital

§ Rights of the Usufructuary

➔ Entitled to the fruits growing at the time the usufruct begins (See Article 588,
NCC on Security).

➔ Entitled to Civil fruits - can lease the land - proportionate to the time

➔ Entitled to the benefits from industrial and commercial enterprise - proportionate

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 ➔ In Wood land - natural fruits, including ordinary cutting without prejudicing the
preservation of the land. Cannot cut down trees unless it be to restore or improve
the land and must inform the owner.

➔ Entitled to transfer or alienate his right of usufructuary

➔ Entitled to Vindicate - may obliged the owner to give him authority to file action
but his right to the fruit is limited to what is adjudged to belong to the owner

➔ Entitled to Set-Off the improvements introduce against the damage

➔ Collect matured credits which forms part of the usufruct if he has given security
(or upon authority of the owner or the court)

§ Obligation of the Usufructuary

➔ To make an inventory, description and appraisal with notice to the owner;

➔ To give security

➔ Not applicable to donor and parents who are usufructuaries of the things donated

➔ If usufructuary fails to five security, the owner may demand that immovables be
put under administration,

➔ Movables be sold - artistic, sentimental worth - delivery to the owner with

payment of legal interest

➔ Convert public bonds, instrument of credit payable to order or bearer to

registered certificates or deposited in a bank or public institution Cash be
invested to safe securities

➔ The interest of the proceeds of the sale, public securities and bonds under
administration shall belong to the usufructuary

➔ The owner may act as administrator if he so prefers until the usufructuary gives
security - entitled to fees of administration, by agreement or by court order

➔ Take care of the thing as a good father to a family

➔ Woodland - special rule (Article 557)

➔ Flock of animals - replacement of the young of the animals that die each year
from natural causes or due to rapacity of beast, uncommon events - deliver the
remains which may have been saved from the misfortune, if it perish in part, the
usufruct shall continue on the part save

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➔ Ordinary repairs - usufructuary’s obligation, owner may demand and may perform
repairs at the expense of the usufructuary

➔ Extra-Ordinary Repairs - obliged to notify the owner when the need for such
repairs is urgent

➔ Demand payment for the improvement caused by extra-ordinary repairs made by

him on the thing

➔ Pay debts of the owner in case the usufruct was made in violation of the rights of
creditors though he is not obligated to pay the obligation from a mortgage

§ Extinguishment of Usufruct
➔ Death of Usufructuary

➔ Expiration of the term, fulfillment of the condition

➔ Merger of the usufruct and ownership

➔ Renunciation of the usufructuary

➔ Total loss - insurance (with or without contribution; building or no rebuilding)

➔ Termination of the right of right of the person constituting the usufruct

➔ Prescription

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