Property Transcriptdocx

PROPERTY
Lecture By Dean Navarro

Transcribed By Bjone Favorito
Immovables………………………………………………………………………………….. 2
Movables……………………………………………………………………………………... 3
Public Dominion……………………………………………………………………………. 3
Ownership…………………………………………………………………………………… 5
Hidden Treasures………………………………………………………………… 7
Right of accession………………………………………………………………… 9
Accession with co-owners………………………………………………………. 13
Alluvion…………………………………………………………………………… 15
Usufruct……………………………………………………………………………………… 17
Rights of the Usufructuary……………………………………………………… 17
Obligations of the Usufructuary………………………………………………. 19
Extinguishment of Usufructuary………………………………………………. 21
Easments……………………………………………………………………………………... 23
Kinds of Easments……………………………………………………………….. 23
Modes of Acquiring Easments…………………………………………………. 24
Rights and Obligations of the Dominant and Servient Estate……………... 25
Modes of Extinguishment of Easements……………………………………… 25
Legal Easements…………………………………………………………………. 26
Right of Way…………………………………………………………… 26
Party Wall………………………………………………………………. 27
Light and View………………………………………………………… 28
Other Legal Easments…………………………………………………. 29
Nuisance……………………………………………………………………………………… 30
Public and Private Nuisance……………………………………………………. 31
Nuisance Per se and Per Accidens……………………………………………… 31
Remedies against Nuisance……………………………………………………… 32
Modes of Acquiring Ownership…………………………………………………………… 34
Occupation…………………………………………………………………………. 34
Intellectual Creation……………………………………………………………… 34
Donation…………………………………………………………………………… 37
Types of Donation……………………………………………………… 37
Inter Vivos and Mortis Causa…………………………………………. 38
Persons who may Give or Receive a Donation……………………... 39
Form for Valid Donations……………………………………………… 40
Things that may be Donated…………………………………………… 41
Reversion…………………………………………………………………. 41
Revocation and Reduction……………………………………………… 42
CAVEAT: Co-ownership and Possession (Art.484 to 561) not included

IMMOVABLE PROPERTIES
In the Mindanao Bus Company case, sabi ng SC dun: the industry is not carried on in this building
where the repair shop is located. The transportation business is carried on outside, not here. That is the
reason why the court said that the repair equipment there should not be considered as immobilized but
remain as personal property.
Can the parties agree that a certain machinery which has been installed by the owner of the
tenement for an industry or works which will be carried on in that building and which tend to meet
directly the needs of said industry or works, to treat this machinery as personal property? Subject them to
a chattel mortgage? Is that allowable? YES. The principle of estoppel will apply. Although the machinery
in the building, when installed by the owner and tend to meet the needs of the industry or works and
carried on in that building, if the parties agree to treat the machinery as chattel, and enter into a chattel
mortgage, neither of them will be permitted to question the validity of the chattel mortgage later on, on
the ground that the subject was actually a real property.
In number 6 of Art.415, the law deals with animal houses, pigeon houses, fish ponds and other
breeding places of a similar nature in case the owner has placed them or preserves them with the
intention to have them permanently attached to the land. The animals in these places are included. So, if
there is a pigeon house permanently attached to the land, the pigeons are also considered real property.
Of course pigeons sometimes fly around, or in the case of fish ponds, if you happen to have bangus, the
bangus are also considered real property, immovable even if they are swimming around. For purposes of
sale, however, these should be considered as movable property. So if you enter into a contract of sale of
the bangus in your fishpond, that’s not a sale of real property but considered sale of personal property. Or
if you donate the bangus to a certain individual, that should not be considered a donation of real property,
but a donation of personal property, otherwise you would need to execute a public document both for the
donation and the acceptance.
Fertilizers actually used on a piece of land. What about insecticides? Same rule should apply.
Then you have mines, quarries or slag dumps, while the matter thereof forms part of the bed and
waters, either running or stagnant. The waters referred to here are natural waters. So if you have several
drums of water which you keep in your yard, because in some areas water is getting scarce, the water in
those drums which you have earlier collected cannot be considered as covered by number 8 of Art.415 –
mga waters dito, mga waters in rivers, in lakes, or in lagoons – natural waters.
Docks and structures, which are although floating, are intended by their nature and object to
remain at a fixed place on a river, lake or port. A question was asked regarding this: there was a barge
which was at a fixed place. Basta nasa fixed place, consider it as real property even if it’s floating. For
example NAPOCOR and some other private companies have these power barges which supply electricity
to certain island provinces. So they are usually docked along the shore or a port and they remain there for
a considerable period of time – they are considered as real property. Yung floating restaurant dyan sa may
Transcribed By: Bjone Favorito Page 2

reclamation area, it’s floating but it remains at a fixed place, thus should be considered a real property.
But of course, if it’s actually a boat which takes on passengers and go on a cruise of Manila Bay
while dinner is served, I don’t think you can consider that as real.
Lastly, you have contracts for public use or servitudes and other real rights over real property.
MOVABLE PROPERTIES
Certain real properties are, by special provision of law, also considered as movable property.
Very good example are growing crops – under the chattel mortgage law, as well as under the civil code
provisions on sales, they are considered personal property. While they are still growing on the soil, sabi
ng SC in Sibal vs. Valdez, it’s a mobilization by anticipation. In other words, the law already anticipates
their subsequently becoming movable. When would that happen? When they are actually gathered, so
even before they are gathered, there is mobilization. That’s why they can be the subject of a chattel
mortgage.
Forces of nature which are brought under control by science. Nuclear power, wind power,
electricity – these are considered movable property.
Shares of stock in any corporation – these are considered personal property regardless of the fact
that the corporations in which these shares are held has real property or even if all of the assets consists of
real property. The shares of stock shall always be considered as personal property.
PUBLIC DOMINION
Art.420 – Properties considered as Public Dominion: those intended for public use and those
intended for public service or for the development of national wealth.
Properties intended for public use – roads, streets, parks. A property is considered, according to
the court, for public use within the meaning of the civil code, if it is open indiscriminately to the public. In
other words, anyone can go there and use it. Like streets – anyone can use it; it is open indiscriminately to
everyone.
Properties of public dominion area subject to certain special rules – another important thing we
have to remember. They cannot be made the subject matter of contracts. They cannot be sold, nor leased.
They cannot be acquired by prescription. They cannot be attached and sold at a public auction to satisfy
any judgement. They cannot be even burdened with an easement. You cannot even register them, have
them titled in your name under the torens system, and if a title is issued, that’s not a valid title.
The Government has property of two types: Of Public Dominion and Patrimonial Property. With
respect to the Patrimonial, just like any other ordinary private property, it can be the subject of contracts.
Property of Public Dominion, as long as it remain as such, is subject to the special rules we just

mentioned. Is it possible to convert Public Dominion to Patrimonial? The answer is YES, it is possible.
How can that be done? Will the mere fact that property of public dominion is no longer actually being
used for public use or is no longer actually being devoted for public service automatically converts it to
patrimonial property? The answer is NO, it will not. There must be a formal declaration by the executive
or legislative of such conversion, otherwise the property remains property of public dominion.
With respect to property of political subdivisions, the conversion must be authorized by law. A
very good example is the Roppongi cases involving the property of the Philippines located in Japan which
were given to us by way of reparation by the Japanese as part of the reparations agreement. Those
properties were originally intended for the use of our embassy but they were never used for that purpose.
After a long period of time, there was an attempt to sell these properties. The SC said: “the mere fact that
these properties in Japan have not been actually used for their original purpose does not automatically
convert these properties into patrimonial properties. They remain part of public domain, and
consequently are not available for private appropriation or ownership until there is a formal declaration
on the part of the government to withdraw it from being such. Abandonment cannot be inferred, it must
be definite.” On the part of local government entities, just like the state, their properties are subdivided
into public use and patrimonial. For property to be considered for public use, it must be open
indiscriminately to the public, otherwise it cannot be said to be for public use.
In some cases, however, the SC, in determining whether properties of a LGU should be
considered as public or patrimonial, opted to apply the special laws governing municipal corporations.
Thus, in the case of Zamboanga del Norte vs The City of Zamboanga, the SC said: “we cannot possibly decide
this case strictly along the lines and parameters set by the civil code in determining what properties are
for public and private.” This involves the creation of a new local gov’t carved out of a former political
unit. In that case, and in similar cases involving local gov’ts, the SC instead considered the use of the
property – whether it is for governmental purposes or not. As long as the property was used for
governmental purposes, it was considered public property. Still on this point, in the absence of clear
evidence as to the source of the funds used in acquiring the property which is currently being held by the
local government unit, the presumption is that the property came from the state - Salas vs Harencio and
similar cases. So, if an LGU is currently holding a property, but there is no clear showing as to the source
of the funds used to acquire the property or as to how it acquired the property, the presumption is that
the property or land actually came from the state and the LGU is holding it merely in trust for the state
for the benefit of the inhabitants of the locality. If that is so, those properties cannot be considered as
patrimonial property and the national legislature will be considered to have absolute control over these
properties.
In some cases decided by the SC, it has been made clear that LGUs cannot enter into contracts,
cannot even validly authorize by means of an ordinance, the awarding of contracts over certain streets in
favor of private individuals for purposes of having a flea market there. As long as the street remains a
street, it’s for public use and therefore it is beyond the power of the LGU to deal with by means of
contracts. In one case, the LGU authorized that a certain street be converted to a flea market. There was
an ordinance authorizing that. The court said that cannot be. What is clear from these cases is that: while

even under the Local Government Code, LGUs are allowed to withdraw certain streets, when no longer
necessary, from public use, they cannot do so without actually withdrawing the road from public use.
They will still maintain it as a street and, at the same time, operate it as a flea market – that cannot be
done. So in these cases sabi ng court “hindi pwede yan. As long as they have not been withdrawn from
public use, they remain property for public use and you cannot, at the same time, enter into contracts
with private individuals who intend to operate a flea market in that road. Kung gusto nyo, i-withdraw
nyo.” In other words, it will cease to be a street, and only after that can you deal with it as patrimonial
property but not while it is still a street.
You recall the ruling of the SC in Chaves vs PEA. There was this agreement between the PEA and
the AMARI, that AMARI would reclaim areas of the Manila Bay and, as payment, it will be paid with
reclaimed lands. Maliwanag na maliwanag, sabi ng SC “with respect to the reclaimed lands on freedom
islands around 157 hectares which are covered by titles in the name of the PEA, they are alienable lands
of the public domain. But they may only be leased, not sold, to private corporations. Of course, they may
be sold to Filipino citizens. With respect to the submerged areas, they are inalienable and outside the
commerce of man. Only after PEA has reclaimed them may the gov’t reclassify them as alienable and
disposable lands, if no longer needed for public service. The transfer of the submerged lands to AMARI is
also void since the Constitution prohibits alienation of our natural resources other than agricultural land
of the public domain.” Of course, there were many separate opinions filed in that case but just stick to the
main decision.
OWNERSHIP
Remember the traditional attributes of ownership. Generally the rights of an owner – The right to
use, right to the fruits, the jus abutendi – that should never be interpreted to mean the right to abuse, there
is no such thing. Jus abutendi simply means the right to consume the thing by its use. Right to dispose,
right to vindicate or recover. You also remember the limitations on the rights of ownership. These are
limitations which may come either from the state, in the exercise of its inherent powers, or imposed by
specific provisions of law like the provisions of the civil code dealing with easements. These may also be
limitations imposed by the person transmitting the property – if I am donating property to you, I may
impose on the deed of donation certain limitations on your use of the property.
In connection with the rights of ownership, you remember the doctrine of self-help under
Art.429. An owner or lawful possessor is allowed by law the use of such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful deprivation or physical invasion or
usurpation of his property. Only reasonable force should be used. The doctrine can be invoked only at the
time when there is an actual or threatened unlawful physical invasion, not thereafter. If the property has
already been taken by the third person, you are not allowed to use force to get it back. You must invoke
the aid of judicial authorities. One of the best examples would be the case of German Management and
Services Inc. Here was a land owner who wanted to develop his property and so he executed an SPA in
favor of German Mngt Services to develop the property. GMS went to the property and discovered that

certain individuals are occupying and cultivating the property. GMS used physical force to oust these
occupants and later on invoked the doctrine of self-help. Court said “that’s not proper, it is not disputed
that when they tried to enter the property, those occupants were already there cultivating the land for
some time. A party in peaceable quiet possession shall not be turned out by a strong hand, violence or
terror.” The doctrine can only be exercised and invoked at the time of actual or threatened dispossession.
When possession has already been lost, the owner must resort to judicial process for the recovery of his
property and cannot take the law into his own hands.
A little oxygen break at this point
The owner has the right to enclose his property with a fence, a wall or any other means. There is a
very beautiful case in this connection, I refer to Custodio vs CA. There was a property owned by a person,
and there was no fence around this property. So, some of his neighbours were passing through his land
to reach the public road. Later on, the property owner decided to enclose his property with a fence.
Consequently, his neighbours could no longer pass through, they had to take a more round-about route
to reach the street. They filed a complaint for damages. The court said “this is a case of damnum absque
injuria. The property owner was simply exercising a right explicitly granted to him by law – the right to
enclose his property with a fence. In the meantime, great inconvenience was caused to his neighbours
who now had to take a longer route to reach to street. It’s just too bad but obviously they do not have the
legal right to claim damages.” Please take note that when the case was decided, there was no easement
yet. It was only after the case was decided that the court said: an easement should be created but they
should pay indemnity. So, as long as there is no easement yet, you have the perfect right to enclose your
property with a fence. That’s very clear in art.430.
A property owner has the Jus Utendi – the right to use his property. But the right to use ones’
property must be exercised in such a way as not to injure others – Sic utere tuo ut alienum non laedas. In one
case, there were two adjoining properties. The owner of the higher property built thereon a certain
artificial bodies of water. There were artificial lakes, water pots, etc. Unfortunately, during bad weather,
some of these constructions were washed away and they fell to the adjoining lower estate. The lower
court dismissed the case, the SC said the case should be reinstated applying art.431. Obviously, the court
considered the construction of theses artificial bodies of water on the higher estate as something which
causes some damage or prejudice to the adjoining lower estate.
You also take note of the provisions of art.432 of the civil code, sometimes referred to as the
emergency doctrine. If you are the owner of a thing, the law says you have no right to prohibit the
interference of another person with your property, as long as the interference is necessary to prevent an
imminent danger and as long as the threatened damage or injury is much greater than the damage which
would arise to you from the interference with your property. In this connection, the view has been
advanced, to which I agree, that negligence on the part of the person interfering does not preclude resort
to the rule under 432. If, for example, while I was using my car, another vehicle, owned and driven by
Mr. X, careened into the street and slammed into a meralco post and started to billow with smoke, was
obviously on fire. Under this article, Mr. X, although was negligent, would have the right to interfere
with my property if I happen to have a fire extinguisher. I do not have the right to prohibit his

interference with the use of that extinguisher. His negligence does not preclude him from invoking the
rule under 432. Obviously, any possible damage which might be caused to me through the use of my fire
extinguisher is much less than the damage which would result from the complete burning of his car. So,
in that case, the requirements of 432 would clearly be met.
You just read art.433 and 434 – actual possession under claim of ownership raises a disputable
presumption of ownership. The true owner must resort to judicial process if he wants to recover his
property. And then, the requirement in an action to recover property is that: (1) the property must be
identified; (2) the plaintiff must rely on the strength of his own evidence, and not on the weakness of the
defendant’s claim - which is in accord with the rule that “he who alleges has the burden of proof”.
Art.435, on the other hand, is simply a restatement of the basic principle in Constitutional Law.
One of the inherent powers of the state is the power of eminent domain – property may be taken for
public use as long as there is payment of just compensation.
Art.436 is a restatement of the rule on police power. The moment the state exercises it’s police
power, then property rights must necessarily yield, and if property is taken or damaged or destroyed as a
consequence of police power, there is no right to any indemnity. The only indemnity you get is the
feeling of satisfaction that somehow you have contributed to the common good.
I call your attention to art.437. The owner of property is the owner not only of its surface, but of
everything under it. Of course, that does not necessarily mean that everything under the provision is to
be taken in its literal sense. If there are, for example, there are minerals under your land, that does not
belong to you, that belongs to our Kabalikat sa Kaunlaran – the State (Regalian doctrine). The question is:
Up to what depth will you be considered the owner of what is beneath your land? Does that extend up to
the middle of the earth? The rule of thumb is: it extends only up to such depth as you can still make use
of it. In a case decided by the SC, it would seem that it is quite deep, at least in the point of view of the SC.
I refer to NPC vs. Ibrahim where there was a property owner and, unknown to him, the NPC has
constructed a tunnel passing beneath his land because the NPC was drawing water from Agus river. So
the property owner was not aware of the tunnel. It was only much later that he found out.
Hidden Treasures
What is considered as Treasure? The Law Defines in Art.438 - it is any hidden AND unknown
deposit of money, jewellery or other precious object, the lawful ownership of which does not appear. In
other words, hindi alam kung sino ang may ari. If you see your neighbour one midnight, digging a hole
in a parcel of land near your house, and hiding a jar full of jewellery – that is not hidden treasure. Alam
mo kung sino ang nag baon. The lawful ownership must not appear.
The law enumerates money, jewellery or other precious objects. Applying the ejusdem generis rule,
that should be limited to things of similar nature. Therefore, this does not include mineral deposits or oil.
Pag aari yan ng ating Kabalikat sa Kaunlaran – the State. What is the rule with respect to hidden treasure? It
belongs to the owner of the land, building or other property in which it is found. If it is found by another
person, in other words, somebody other than the owner of the property AND by chance: you have the 1/2

rule (50-50). Half will belong to the owner, the other half to the finder. If, however, the finder happens to
be a trespasser, he is not entitled to any share.
The law requires that the finding must be "by chance". In other words, this would usually mean,
and in the traditional meaning ascribed to this phrase is, that the finding was not intended. Totally not
expected, the finder was not looking for the treasure.
Supposing that a man has been given the usufruct of a parcel of land by his friend, then there was
an old man who gave him what appeared to be an old map and the old man told him that on a part of
that property, there is treasure buried by pirates a long time ago. And so this usufructury, believing what
was told to him by the old man, digs at the precise spot indicated by the old map. And true enough, he
finds hidden treasure. Will he be entitled to any share of the treasure? Will his finding be considered as a
finding by chance? If you go by the traditional view, then it would seem that it would not fall under that
category because he intentionally looked for the treasure. But I think this logic and good sense in the view
advanced by others, according to them, when the law says "by chance", that should be interpreted to
mean "by a stroke of good fortune".
Let me put it this way: a lot of people have been engaged, all over the Philippines, in the search
for the so-called "Yamashita Treasure". Even books have been written about the search for this treasure. A
lot of people have engaged in diggings, have spent millions to finance these excavations. But a lot of them
were not able to locate any treasure at all. Even if you look for treasure, there is no guarantee, even if you
are using an old map, that you will be able to find one. In that sense, if you do find treasure, your finding
could be considered as "by a stroke of good fortune" and in that sense, it can be considered as "finding by
chance".
If the finder was precisely employed by the owner of that land to look for treasure there, the
finder will not be entitled to any share under Art.438. His remuneration will depend on his contract or
agreement with the land owner as to how the treasure will be shared or as to his compensation for the
work which would be undertaken.

RIGHT OF ACCESSION
The General Rule contained in Art.440: "If you are the owner of property, by right of accession,
you are also entitled and own everything which is produced by the property, or which is incorporated
with that property, or which is attached to that property, either naturally or artificially. The owner has the
right, by accession, to everything produced, incorporated or attached to that property.
There are various kinds of accession. You have Accession Discreta - the right, given to the owner,
to everything which is produced by the property. This is divided into the three types of fruits: Natural
fruits, Industrial fruits and Civil fruits. Natural fruits are the spontaneous products of the soil, and other
products of animals. Animal manure - that's natural fruit. Mushrooms not cultivated, those that just
sprout in the fields especially after a thunderstorm the previous evening - those can be considered as
spontaneous products of the soil. Industrial fruits, on the other hand, are those which are produced by
lands through human labor and cultivation. If you are talking of mushrooms which are produced by a
farm, they are cultured, that would be industrial rather than natural. Civil fruits - rents, the price of leases
of lands and other property, life annuity and other similar income.
Then you have Accession Continua - the right, given to the owner, to everything which is
incorporated or attached to his property either naturally or artificially.
With regard to immovable property, you have: (1) Accesion Industrial, which covers buildings,
plantings, sowing, and you have; (2) Accesion Natural, which includes Alluvion, Avulsion, change of river
bed, formation of islands, etc.
With regard to movable property, you have (1) Adjunction/Conjunction,

(2) Commixtion/Confusion and (3) Specification.
To the owner belongs all of the fruits. Do not forget, however, the rule under Art.443, a very
important rule, that he who receives the fruits have the obligation to reimburse the expenses made by
another person in their production, gathering and preservation. Please take note that in 443, the law does
not distinguish between people or persons who are in good faith and persons in bad faith. It applies to
everyone. You might have been in bad faith but as long as you spent for the production, gathering and
preservation of the fruits, the owner who is able to get that possession is obligated to reimburse you for
the expenses which you incurred. Please take note also that the article would not apply if the fruits have
not yet been gathered. So if the fruits are still ungathered, you don’t apply 443. Consequently, if you
happen to be in bad faith and you have not yet gathered the fruits when the lawful owner or possessor
recovers the property from you, you don’t apply 443. You simply lose all of these fruits, applying the rule
with respect to possessors in bad faith as well as planters and sowers in bad faith. He who is in bad faith
loses everything that he has built, planted or sown.
Art.445 tells us when these rules on accession, with respect to immovable property, would apply
and when they would not. The law says “whatever is built, planted or sown on the land of another,
together with the improvements and repairs made thereon, shall be belong to the owner of the land.” If I
build, pant or sow on my own land, therefore, these rules on accession would find no proper application.

You apply these rules if it was on the land of another. Because if it was the owner of the land himself who
builds, plants or sows, there is no question, he is really the owner of everything. As a matter of fact, there
is a presumption under Art.446 that everything or all works of sowing and planting are presumed to
have been made by the owner and at his expense. Of course, that is a disputable presumption, but a
presumption just the same.
What is the scenario in Art.447? Here is a land owner who decides to build on his property using
the materials of another person. I have a parcel of land, I build a house there, or any other thing, but I use
your material. There are always two possibilities: either I am in good faith or in bad faith. Good faith – if I
thought that I had the right or owned the materials. Bad faith – if I knew that you were the owner of those
materials, and despite that knowledge, I still used them. If I am in good faith, what is my obligation? The
law says I should pay their value – that is fair and square. Can I be held liable for damages? The answer is
NO, because precisely, I was in good faith. I simply have to pay the value of the materials owned by you.
If I am in bad faith, of course I have to pay the value of the materials PLUS damages intended to penalize
me for my bad faith. What would be the rights of the owner of the materials? The law says you can
remove your materials if it is possible to do so without injury to the work constructed. If it is possible to
remove your materials without injury, that means it’s not really a case of attachment because it’s possible
to remove without injury to the plantings, construction or works. If I am in bad faith, however, the law
says you can remove your materials in any case, aside from your right to recover damages. So if good
faith – limited right of removal on your part.
Scenario contemplated by Art.448: here the law contemplates a situation where there is a land
owner and somebody builds, plants or sows on his property. Again, we have to determine whether the
builder, planter or sower is in good faith or in bad faith. The land owner also, because the land owner can
be in bad faith. When? If he knew that somebody was building on his property and he permitted/allowed
it to continue (Sige lang, mag tayo ka dyan. Tapos ka. After a while, akin yan). Bad faith ‘yon. If he was not
aware – good faith. The builder, planter or sower, on the other hand, would be in good faith if he is not
aware of any defect or flaw in his title or mode of acquisition. The builder thinks he owns that land, or he
thought he had the legal right to build thereon. If he is aware that he has no legal right to build on that
property, but he built, planted or sown just the same, he would obviously be in bad faith. What would be
the respective rights? Assuming both parties are in good faith, the rights would be as follows: The land
owner can appropriate what has been built, planted or sown on his land. Of course, he has to pay proper
indemnity to the builder, planter or sower. In the case of building and planting, the land owner also has
the option of selling the land, occupied by the building or planting, to the builder or planter. He cannot,
however, avail of that option (yung “ask the builder or planter to buy the land”) if the value of the land is
considerably more than the value of the building or planting. Please take note, the law uses the phrase
“considerably more”. If the value of the land and the value of the building or planting are more or less the
same, or if the difference in the value is not too much, then the land owner is not precluded from availing
of that option. Kase dapat ang difference ng value must be considerably more than the value of the
building or planting. In that case, they can simply enter into a lease agreement. If they cannot agree on
the terms of the lease, the courts shall fix the terms thereof according to Art.448.

Please take note that 448 distinguishes between the planter and a sower. Obviously parehong nag
tatanim yan. What’s the difference? You are a sower if what you actually sow is something that will not
produce fruits for a long period of time – rice, for example. Sabi nung kanta “planting rice is never fun” but
actually pag dating sa 448, it’s not planting rice, it’s sowing rice. Because once you harvest, you’ll have to
sow again. Sower ka nyan. But if what you plant is something which will last for years and continue
producing fruits year after year, you are not a sower, you are a planter. Halimbawa, nag tanim ka ng punong
manga or coconut or whatever, that’s a case of planting. Because what you have planted will last for years
and continue producing whithout having to re-plant them. If what are involved are bananas, what are
you? Ordinarily I would say that you should be considered merely a sower, not a planter because the
ordinary way of getting the fruits is by cutting down the trunk. Pag bumagsak na, tsaka mo kukunin yung
mga bunches of bananas. Although some areas in South America, yung mga large banana plantations,
hindi daw ganon. They simply get the bunches of bananas and they are able to produce fruits for quite
some time.
Land owner has the right to appropriate, but he must pay the proper indemnity. What is the
indemnity? Supposing that the builder spent 500,000 when he built, but at the time when the land owner
exercises his option to appropriate, the building was already worth 5 million. What is the amount which
would constitute the proper indemnity? The Supreme Court has already decided that point. It is the
market value at the time when the indemnity is to be paid. So in that problem, although only 500,000 was
spent, since the property at the time when the indemnity is to be paid, the property was already worth 5
million, it is the latter which should be paid by the land owner. If the land owner decides to appropriate,
he has to pay the indemnity, and prior to such payment, the builder has the right of retention. If you are
the land owner and I am the owner, and we are both in good faith. I built on your land a building, you
informed me that your option is to appropriate the building. So, the price of indemnity, let’s say, is 10
million. Prior to your payment of 10M to me, I have the right to retain the building and to continue
occupying your land. That is the right of retention given by law to me. What is the purpose? To insure
that I will be paid properly the indemnity due to me.
Supposing that during this period of retention, while you have not yet paid me the indemnity,
nag hahanap ka pa ng perang pambayad sakin, the building is lost because of caso fortuito, tinamaan ng kidlat at
nasunog completey. What’s the net effect? Sorry nalang ako, I lose my right of retention because you are
not obligated, as land owner, to pay for buildings or improvements which have already ceased to exist.
So wala na, no more right of retention. During the period of retention, can the land owner demand from
the builder the payment of rent? Lupa ko yan e, I am deprived of the use of my property. The answer is
NO. As long as there is a right of retention brought about by the earlier exercise of the land owner of the
option to appropriate, he (the builder) cannot be compelled to pay rent. Why? Because if he is required to
pay rent, that will damage or negate his security for the payment of the indemnity.
Supposing that the property or building which I constructed in good faith on your land is
producing fruits. Let’s say that portions are being leased or rented out to third persons who are paying
me rent during the period when I have the right of retention. Who is entitled to the rentals being paid by
the tenants? Can these rentals be offset with the indemnity do to me? In one early case (Ortiz vs Cayanan)

which involved possessor in good faith who has a right of retention because the indemnity have not yet
been paid, during the period when he had the right, a detour was constructed through the property kase
one highway was being constructed and in the meantime, vehicles had to take a detour through the
property and tolls were collected. The question is, can the tolls collected by the possessor be offset or
compensated with the indemnity due to him? Supreme Court said YES. In other words, the right of
retention in that case is not merely a security but rather a way for the extinguishment of the obligation to
pay indemnity.
In some other cases, Pecson for example, sabi ng SC hindi pwede. If fruits are collected by the
builder in good faith during the period of right of retention, these fruits cannot be compensated with the
indemnity due him. Why? Because he is the one entitled, as a consequence to his right, to the possession
and tenancy of the property. He is also entitled to these fruits. So there can be no compensation of the
fruits and indemnity for the simple reason that they are both due and belong to him. Admittedly, I could
sense a certain ambivalence on the part of court decisions. One reason why, according to some decisions,
the builder in good faith is no longer entitled to the fruits during the period of retention is because under
the law on possession, the moment the builder becomes aware that he is not really the owner of the
property or there is a defect in the mode or title of his acquisition, then strictly speaking, he is no longer
in good faith. And from that moment on, he is not entitled to the fruits. That’s the basis of SC decisions.
But personally, I think that the better view is that he would still be entitled. In other words, as long as he
builds in good faith, he cannot be deprived of the rights pertaining to a builder in good faith, one of
which is the right of retention even if at some point he becomes aware that there is a defect in his title.
And the right of retention, I submit, necessarily implies tenancy and continued possession. As such, he
should still be entitled to the fruits and there can be compensation between the fruits and the amount of
indemnity due to him.
The option is given to the land owner, not to the builder. It is the land owner who decides
whether he will appropriate what has been built or planted or whether he will ask the builder or planter
to buy the land. That option is given to him. The builder cannot compel the land owner to simply sell the
land to him or at least the portion thereof occupied by his building. Why is the option given by law to the
land owner? In a case, the SC clearly says: because the right of the land owner is older.
Can the land owner simply refuse to exercise either of the option under Art.448? He does not
want to appropriate the building, sabi nya “Ayoko nyang building mo, ano gagawin ko, ampangit nyang bahay
mo”, neither does he want to sell the land occupied by the building. In short, he simply tells the builder
“Lumayas ka, tanggalin mo yang building mo dyan, dahil ‘di mo lupa yan, lupa ko yan.” Can the land owner do
that? The answer is: he cannot just refuse to exercise his option and simply ask for the removal of what, in
good faith, has been built or planted on his land. The options are limited to those in Art.488.
But supposing that the land owner avails or elects the option of selling his land and the value of
the land, let’s assume further, is not considerably more than that of the building. The builder, however, is
unable to pay. Kahit na sunugin mo yung builder, wala ka maamoy na pera. Wala syang pambayad dun sa land.
Sabi ng SC: if that is the case, then the land owner can ask for the removal of the building. If, having opted
to sell his land, and assuming the value is not considerably more than that of the building, the builder is

unable to pay, then that’s a situation where the land owner can actually ask for the removal of the
building. Any other remedies available to the land owner if that were the case? Of course, there is always
the remedy of simply entering into a lease. “Sige, di mo pala kayang bayaran, mag lease nalang tayo.” There is
also a third remedy, third option: The land owner can ask for a sale of both the land and the building, the
proceeds of the sale will be first applied to the value of the land. The rest, or any excess, will be delivered
to the owner of the house or the building.
Prior to the time that the land owner exercises his option of either appropriation or sale, the
builder would have been occupying the land of the land owner. Can he be required to pay rent for his
occupancy during that period prior to the exercise of the land owner of his option? The answer is YES, he
should be. The moment the land owner, however, exercises the option to appropriate; there arises the
right of redemption on the part of the builder, from that moment he cannot be compelled to pay rent. If
the land owner opts instead to sell the land to the builder, can rent be demanded in meantime? The
answer is YES, of course. The rent will have to be paid until such time when the property/land is in fact
acquired by the builder. Pag na acquire na nya yun, of course he is the owner already, he simply does not
have to pay rent anymore.
Accession with Co-owners
We said earlier that these rules on Accession on immovable property would not apply to a
situation where it is the land owner himself who builds or plants on his property kasi sabi natin, under the
law, “built, panted or sown on the land of another.” Kung sarili mong lupa, no application ‘to. Now, having
said that, it follows that if a co-owner of a property builds or plants on the property under co-ownership,
these rules would not apply. Because the co-owner is the owner of an ideal share of the whole. And, as a
matter of fact, under the law on co-ownership, a co-owner has the right to use the property under co-
ownership as long as he does not prevent the other co-owners from similarly using it. However, if the co-
ownership has already been terminated by a partition of the property and after the partition, it is
discovered that one of the previous co-owners has built on a part of a property which was later on
adjudicated to another co-owner, then the rules on Art.448 should apply. The previous co-owner who
had earlier built on the property under co-ownership, but a portion of whose building is discovered to
encroach upon the part adjudicated in the partition to the other co-owners, will have the rights of a
builder in good faith. For example, we are the two co-owners, and during the existence of the co-
ownership I built a building on that land. Later on, we agreed to partition the property, tapos ang co-
ownership by partition. Pagka partition naten, na-diskubre a few square meters of my building occupy the
part allotted to you under our partition agreement, 448 can be applied. I will be considered as a builder in
good faith.
The claim of good faith may be made by a successor in interest of the original builder. In one
case, a certain land, together with a building standing thereon, was purchased by a buyer. Later on, upon
re-survey of the land, it was discovered that a portion of the building encroached upon the adjacent
property. SC: The buyer in this case can invoke good faith and the provisions of 448 can apply.

To a certain extent, it’s quite amusing to remember some of the cases involved. In one case, can
you imagine, there was a couple who bought a lot from a subdivision. Usually, ang mga subdivision Lot
No. so-and-so, Block No. so-and-so. The time finally came when they decided to construct a house, so
punta sila sa subdivision. Tinanong nila yung representative of the subdivision developer “We are going to
construct already, saan nga ba yung lote na nabili namen?” “Ito ho” tinuro yung lote, so they constructed.
Anak ng tokwa, hindi pala yun yung lote. Nagkamali ng turo. Can they invoke the rights of a builder in good
faith? Of course, they can. By the way, even if the property involved is registered property, halimbawa
magkatabi yung lote naten, parehong may titulo, when property is titled, very precise ang description nyan ng
boundaries. (beginning at a point mark 1 on plan, 2000 mts from the llm etc ganyan, then north ganun-
ganun 70 degrees 40 minutes and whatever, to point 2..) Can you still claim good faith if the properties are
covered by a torens title? The answer is YES. Tandaan naten ang rason, baka matanong – because, if you are
an ordinary mortal person, you are not expected, unless you happen to be an expert in the science of
surveying, to know the precise boundaries of your property even if your property is covered by a torens
title. Kung surveyor ka – pwede, pero tayong mga ordinaryong mortals, anong malay naten kung nasan yang mga
north 70 degrees na yan? Although meron na ngayon mga GPS. Sa cellphone lang meron nyan e, sasabihin sayo
kung nasaang lugar ka, north ganito, eksakto, accurate to within 5 meters. Meron nga mga GPS na kinakabit sa
kotse, may nag sasalita “turn right after 100 meters”, but even then, I submit, the rule still applies. Unless
you are an expert in the science of surveying, you should not be held accountable for a mistake, so pwede
parin ang good faith. Pero ibang usapan naman kung halimbawa, I built on a lot in Manila. May nakita akong
bakanteng lote, nagtayo ako dun. Nung sinita ako ng may ari, sabi ko “ay ganun ba? Pasensya, akala ko lote ko ito
e” e wala naman ako titulo maskiano. Ang pagaari ko nasa Quezon city, wala akong property sa Manila, can I
claim good faith? NO, I should not be allowed to claim. My mere assertion that I thought I had the legal
right to build on the property is obviously a vagrant assertion. Why vagrant? Because it has no visible
means of support. So hindi pwedeng vagrant assertion.
Supposing that the builder is in bad faith – he loses everything, he becomes liable for damages.
The land owner can demand that you buy his land regardless of the value. No restriction that it should
not be considerably more – wala yung mga ganung restriction. Basta in bad faith ka, bilhin mo yung lupa ko.
Kung ang building mo is worth 1M, the land na tinayuan mo is worth 5M, pwede, you can be compelled to
buy the land. Bad faith ka, pasaway ka, kasalanan mo, and you are liable for damages. The land owner
would have the right to demand removal. “Tanggalin mo yan, lumayas ka sa lupa ko”. Basta in bad faith, you
have no rights whatsoever EXCEPT isa lang: yung recovery of necessary expenses for the preservation of
the property. Why so? Kasi pag dating sa necessary expenses, since these are supposedly incurred for the
preservation of the property, the land owner himself would have incurred the same expenses. Even if he
was the one who has possession of the property. So, in terms of fairness and basic justice, the law
mandates that the builder in bad faith should be entitled to this. By the way, all fruits of the property
belong to the owner. Siguraduhin lang natin na talagang fruits. There is an old case – the “Bonus”. Certain
land owners were asked by a certain company “pwede ba i-mortagage ninyo yang mga lupa ninyo para maka
secure kame ng loan? For the risk you are going to take, we will give you certain bonuses.” Pumayag,
minortgage, so binigyan ng bonuses. Are these bonuses fruits? The answer is NO because they were not
produced by the land, not even civil fruits.

Supposing that both the land owner and the builder are in bad faith? Then they are both
considered to have acted in good faith. So you apply the provision of Art.448. Supposing that the builder
used the materials of a third person in building on the land of another, it would depend on whether the
builder and the land owner are in good faith or in bad faith. Assuming that they are both in good faith,
and the material owner is also in good faith, what will be the rights of the owner of the materials? He can
recover the value of his materials from the builder who used it but the land owner can be held subsidiary
liable for the value of the materials in case the builder is unable to pay the owner of the materials their
value. If, however, the builder is in bad faith, and consequently, the land owner demands the removal or
the demolition of the building, remember that the land owner will have no subsidiary liability. Why? In
Accession, he who benefits from the accession must pay for it. That’s one underlying principle. Kung sino
nakinabang sa accession, dapat mag bayad. That’s the reason why if the land owner decides to appropriate
the building, there is subsidiary liability on his part in case the builder is insolvent. If the land owner
decides to ask for the removal, he does not benefit from that accession and, therefore, there would be no
subsidiary liability on his part. Which is also the reason why if the property is sold by the land owner
pending payment of the indemnity to the builder, who will pay the indemnity to the builder? It depends,
if in the contract of sale between the land owner and the third person, if the land owner was already paid
not just the value of the land but the value of the building as well, then the land owner must pay the
value of the building (proper indemnity) to the builder. If on the other hand, the land owner was not paid
the value of the building, then he does not benefit from the building, it would then be the buyer who will
benefit from the accession, it will be the buyer who will have to pay the builder the proper indemnity. I
repeat, he who benefits from an accession must be the one to pay for it.
Alluvion
Art.457 – if you are the owner of a parcel of land adjoining the bank of a river, and due to the
natural action of the water over a period of time, deposits of river sill are left there by the water, such that
the area of your land gradually increased year after year, you are the owner of that additional area. Your
ownership is automatic. The additional area brought about by the alluvion automatically belongs to the
land owner of that land adjoining the banks of a river. It (the additional area) is not, however,
automatically registered or covered or protected by the torens title of the land owner. He has to register it
in his name and, if prior to his registration of the additional area, a third person succeeds in occupying
that area, claiming it as his own, satisfies the requisite for acquisitive prescription, that third person
would have acquired ownership over that area. So I repeat, if you are the owner of a property adjoining
the banks of a river, in the course of many years, due to the gradual deposit of river sill, lumaki ng lumaki
yung area mo, automatically, as long as everything happens naturally, hindi ka nag construct ng catchment
basin or whatever there, no human intervention, you are the owner of the additional area through
alluvion. But that area is not automatically covered by your torens title. The torens title will not
automatically extend to the additional area. Therefore, the additional area can still be acquired by third
persons through acquisitive prescription. The increase in the area must be exclusively due to nature.
There must be absolutely no human intervention, otherwise that is not alluvion.

In so far as areas bordering lakes are concerned, like Laguna de Bay, if there are additional areas brought
about by the action of the water or whatever, to whom would these areas belong? They would belong to
the owners of the adjacent lands applying the Spanish law on waters. If you own a parcel of land, let’s say
in La Union, and through the action of the sea, your land gradually increased in area, who would own
the additional area? Kabalikat sa Kaunlaran, wag natin pakialaman yan, that belongs to the State. Alluvion is
applicable only in rivers, hindi kasama dito yung mga shores of the seas but, applying the Spanish law on
waters, if what is involved is a lake, the additional area will also belong to the adjacent land.

USUFRUCT
Nothing complicated about Usufructs. The basic idea of Usufruct is: Property is given to a
person, is given the right to use and enjoy the property, with the basic obligation of preserving its form
and substance. Basically, that’s what usufruct is all about. You try to remember at least a few of the
distinctions between a usufruct and lease. You need not remember all of the distinctions, just some of it.
For example, is that usufruct is always a real right. In the case of lease, it’s not always a real right. It
becomes a real right only if the period is more than 1 year, or if it is registered. A usufruct can only be
created by a person who owns the property. Sya lang ang pwede mag constitute ng usufruct. Yung lease
pwede, it can be created by somebody who is not actually the owner of the property. For example, the
lease may sub-lease the property. In the matter of its creation, there are various ways of creating a
usufruct. It may be created by the law itself or by the will of the testator. In the case of a lease, generally
the only possible source of the lease is the contract between the parties, except of course in the case of the
implied new lease. Or in the case of the forced leased under Art.448 – “if the value of the land is
considerably more, etc.” – just remember those cases.
Rights of the Usufructuary
You remember the rights of a usufructuary. So if you are the usufructuary, what will be your
rights? Basically, you can use the property, you’re entitled to all of the fruits – whether natural, industrial
or civil fruits. Supposing there are hidden treasures, the usufructuary, the law says, is considered a
stranger. In other words, if somebody finds the hidden treasure, then the usufructuary does not get any
share. If it is the usufructuary himself who finds the treasure, then he may be entitled to one half and the
other half will go to the naked owner of the property.
You remember the provisions of the law regarding growing or pending fruits. Those fruits which
are growing or pending at the commencement of the usufruct will belong to the usufructuary. Those
growing or pending fruits, at the time of the end or termination of the usufruct will belong to the naked
owner. With respect to the fruits pending at the time of the start, sabi naten they would belong to the
usufructuary – does he have to refund to the naked owner the expenses incurred so far? There is no need
to refund. But when it comes to the fruits pending at the time of termination of the usufruct, while the
law says that they belong to the naked owner, the naked owner has to reimburse the usufructuary the
expenses incurred by the latter for cultivation, seeds and other similar expenses. If the property under
usufruct is tenantable, you can lease or rent it out to tenants, and it is the usufructuary, not the naked
owner, who has the right to determine who will be the tenant of the property.
If there are any accessions, for example the property under usufruct happens to be a piece of land
located along the banks of a river, and in the course of time, the area increased because of alluvion, the
usufructuary has the right to make use of the additional area. That’s part of his right under Art.571. the
usufructuary may decide to personally use the thing, enjoy it or he may allow another person to enjoy the
thing under usufruct. But remember that all contracts entered into by the usufructuary with third persons
are co-terminus with the usufruct, with the exception of lease of rural lands, which shall be deemed to

continue up to the end of the agricultural year. The obvious purpose there is to allow the lessee who may
be cultivating the land to continue with the production and gathering.
Usufruct imposes upon the usufructuary the obligation of preserving the form and substance of
the thing. But the law allows the grant of a usufruct over the entire patrimony of a person, and when that
happens, chances are, in that patrimony, there will be some properties which, by their very nature, will
deteriorate or will be impaired do to ordinary wear and tear. Supposing that what has been given by way
of usufruct is property which gradually deteriorates through ordinary use, ordinary wear and tear. For
example the object is a car – if the usufruct is for five years, after the period iba na yung kotseng yan.
Ordinary use of the car will result in ordinary wear and tear. Can the usufructuary use the property? The
answer is yes, pwede parin. What will be his obligation? He is simply obligated to return the thing in the
condition in which it may be at the time of termination of the usufruct. If the thing suffers damage or
injury due to his fraud or negligence, he is obligated to indemnify. Pero kung ordinary wear and tear lang
– no obligation. He simply has to return the thing in the condition in which it may be found at the
termination of the usufruct.
Can there be a usufruct on consumable things? Those which cannot be used in a manner
appropriate to their nature without their being consumed or used-up. Can there be a usufruct on money?
On rice? The answer is YES. These are what are sometimes called “abnormal usufructs on consumables”,
sometimes called “quasi-usufructs”, but I think the better view, as pointed out by some commentators, is
: if the object of a usufruct is consumable, in effect, what you have is a “simple loan”. So what will be the
obligation of the usufructuary? Syempre he uses, he consumes. Then he simply has to return or pay the
appraised value at the time of termination of the usufruct, if it was appraised. If it was not appraised, he
will have the obligation of returning the same quantity and quality or pay their “current value”. That is
one advantage of having an appraisal – at least, you only have to return the appraised value.
With respect to usufructs on fruits-bearing trees, remember, the usufruct cannot cut down the
trees but he is allowed to use the trees which have been up-rooted by accident – the dead trunks, he can
use them but if he does, he has the obligation to replace them with new plants. Halimbawa santol or manga
or caimito or star apple. If there is something extra ordinary which happens, and the trees have been up-
rooted or disappeared in such extra ordinary number that it would be impossible or too burdensome to
replace them, the usufructuary may simply demand from the naked owner to clear the land so that he can
continue using the land, or, if he wants, he can use them (the trees), but if he does, he will have the
obligation to replace them with new trees pursuant to Art.575.
Usufruct over wood land: the usufructuary is allowed to make such ordinary felling and cutting
as the owner was in the habit of doing or in accordance with the customs of the place. You remember, in
this connection, ang coconut land is not wood land. Hindi pwedeng mag putol ng puno ng nyog ang
usufructuary.
Supposing the usufructuary introduces useful improvements, or improvements for mere

pleasure or ornamental improvements on the property under usufruct, can he do it? YES, as long as he
does not alter the form and substance of the thing under usufruct. Can he demand reimbursement for the

expenses he incurred? The answer is NO. He cannot claim reimbursement for useful or ornamental
expenses, but he can set off (offset) the value of these improvements against any possible liability for
damages which he may have incurred.
Obligations of the Usufructuary
What are the obligations of a usufructuary? At the start of the usufruct, there are two basic
obligations. Number one: he must submit an inventory of the things under usufruct. Number two: he
must also give a sufficient security. What will be the security for? To guarantee his compliance with his
obligations as a usufructuary. When is an inventory not required? When no one will be injured, provided
that the naked owner consents to the non-submission of the inventory in case the naked owner waives
the requirement for an inventory or if there is such a provision in a will, where the usufruct was created,
or in the contract creating the usufruct. What about the security? When is a security not required? Again,
when no one will be injured, provided that the naked owner consents, second, if there is waiver on the
part of the naked owner, third, if the usufructuary happens to be the donor of the thing – sa kanya
nanggaling, binigay nya but he reserves the usufruct of the property, he is not required to furnish a
security. In the case of caucion juratoria – the promise under oath, the usufructuary is also not required to
furnish a security.
What will be the legal consequence if there is a failure to provide the security? We have the
provisions of Art.586. In that case, the naked owner may demand that the movables be placed under
administration, that the movables be sold, that the public bonds or instruments of credit be converted
into registered securities or certificates, and that the cash and the proceeds of the sale of the movables be
invested in safe securities. The usufucrutuary will be entitled to the interest on these sales of the
movables, and the other proceeds of the properties placed under administration.
What is the Caucion Juratoria? Sometimes it may happen that the usufructuary is given the
usufruct of certain properties, for example house or furniture, equipment or tools, but he does not have
money to get the necessary security. In that case, he may petition the court to allow him to make use of
the house so that he and his family can live there, that he be allowed to use the furniture, equipment and
implements of a trade so that he can earn money. That may be granted by the court upon the promise of
the usufructuary under oath. Kaya ang tawag dyan “caucion juratoria” – that he will take care of it as
required by law.
A usufructuary is obliged to take care of the thing with the diligence of a good father of a family.
Supposing he fails in that obligation, he abuses that thing, or he misuses the thing, will that cause the
termination of the usufruct? The answer is NO. What is the remedy? The owner may simply ask that
administration be given to him pursuant to the provision of Art.610. if the usufruct is constituted on a
herd of livestock, the law says he is obligated to replace with the number of those which are lost each
year due to natural causes or due to the rapacity of beasts of prey. Yung mga nawawala dahil sa mga
mandarambong – beasts of prey, mga hayop na mababagsik.
Supposing that the usufruct is constituted on sterile animals, yung mga hayop na baog, hindi
pwedeng manganak, what will be the obligation of the usufructuary? It will be considered as if the usufruct

was constituted on fungibles. In other words, the usufructury simply has the obligation to pay their
appraised value if appraised or, if not, to replace them with the same quantity and quality or pay their
current value at the time of the termination of the usufruct. A good example of a sterile animal would be
a mule, the one usually used to carry things or cargo, yung mga panahon ng cowboys at indian. It is a
sterile animal, and you produce a mule by cross-breeding a male donkey with a female horse, the
offspring will be a mule.
Who is responsible for repairs? You distinguish between ordinary and extra ordinary repairs.
Ordinary repairs are the responsibility of the usufructuary. When is a repair considered ordinary? If it is
due to wear and tear, and if it is indispensable to the preservation of the thing. So two requisites. The
usufructuary is obliged to make the ordinary repairs. All other repairs are considered extra ordinary.
Halimbawa, due to wear and tear, but not indispensable to the preservation of the thing, that’s
considered extra ordinary. Such repairs shall be, according to the law, at the expense of the naked owner.
But the naked owner, please take note, is not obliged to make the extra ordinary repairs.
Supposing the naked owner makes the extra ordinary repairs, he spends for it, what right would
he have? Under the law, he would have the right to demand from the usufructuary legal interest on the
amount he spent on the extra ordinary repairs for the duration of the usufruct. Supposing the repair is
extra ordinary and indispensable for operation but not caused by ordinary wear and tear, for example the
property under usufruct is a house, may malakas na bagyo at linipad ang bubungan – that’s not due to
ordinary wear and tear but it is indispensable to the operation of the property. And let’s further assume
that the naked owner does not make that extra ordinary repair. In that case, since it is indispensable to the
preservation of the things, the usufructuary may make that extra ordinary repair. What would be his
rights? He may demand from the naked owner, at the termination of the usufruct, the increase in value
which the thing may have acquired as a consequence of the repair.
Annual charges and taxes which are considered lien on the fruits – charged to the usufructuary.
Real property tax on the land under usufruct – that should be paid by the naked owner, not by the
usufructuary.
If the usufruct is constituted on the whole patrimony of the person, and the naked owner
happens to have unpaid debts, is there an obligation on the part of the usufructuary to pay the debts? If
there is no order for the naked owner to pay the debts, there is no obligation on the part of the
usufructuary to pay those debts except if the usufruct was constituted in fraud of creditors. If there is an
order from the naked owner for the usufructuary to pay the naked owner’s debts, it is understood that he
is obligated to pay only to pay the debts existing at the time the usufruct was constituted. Only pre-
existing debts must be paid, applying the provisions of Art.758 and 759.

Extinguishment of Usufruct
How is usufruct Extinguished? You take note of the provisions of Art.603.
The death of the usufructuary generally terminates the usufruct. What about the death of the
naked owner? It does not terminate the usufruct.
Merger would also result in termination of the usufruct, meaning to say, if there is merger of both
the usufruct and the ownership of the same property in the same person, then the usufruct is necessarily
terminated.
Total loss of the thing – that also results in the termination of the usufruct.
Termination of the right of the person constituting the usufruct – that also terminates the
usufruct. If I gave you the usufruct over a parcel of land, and during the existence of the usufruct, my
rights are declared, by final judgement of a court, to be null and void – I’m not really the owner, that’s an
example of a situation where the usufruct will be terminated by the termination of the rights of a person
constituting the usufruct.
Renunciation on the part of the usufructuary – that would also terminate the usufruct. Does a
renunciation require the consent of the naked owner? The better view is that it does not. If the loss is not
total, but partial, needless to state, the usufruct continues on the part of the thing which has not been lost.
In the case of multiple usufructs, it is only upon the death of the last usufructuary that the
usufruct is terminated. Supposing that the usufruct is granted for the number of years that would elapse
before a person would reach a certain age. Let’s say I give you a usufruct today until X reaches the age of
40, and X is, let’s say, only 30 years old today. So, the usufruct is supposed to last for 10 years. Supposing
X dies after 5 years, will the usufruct terminate? The answer is NO. It continues until the year when he is
supposed to reach 40. Unless the usufruct was granted only in consideration of the existence of X, in
which case, it would terminate upon the death of X.
You take note of the provisions of Art.607. Two situations contemplated here.
First: usufruct is constituted on both the land and the building, and then the building is
destroyed. What is the consequence? The usufruct over the land continues. Usufructuary has the right to
continue using the land and he has the right to make use of the materials. If the naked owner wants to
rebuild, his decision is subject to the concurrence or consent of the usufructuary because his usufruct is
over both land and the building. If the usufruct is constituted over the building only, not expressly
covering the land, and the building is destroyed, the usufruct on the building ends but the usufructuary
can still make use of the materials. The usufructuary in that situation is also entitled to the continuous use
of the land because, although the land was not expressly included in the usufruct, of course, the building
cannot be floating on thin air, so when he was granted usufruct of the land, necessarily, kasama din yung
pinagkaka tayuan nun. It necessarily included his right to make use of the land on which the building
stands. If the naked owner rebuilds, he has the obligation to pay the usufructuary interest not only of the
value of the materials, but also on the value of the land. Bakit may interest pati sa value of the land?

Because, sabi nga natin, even if the usufruct expressly covered only the building, it necessarily included
the use of the land because a building cannot float. If the property under usufruct has been expropriated,
what will be the consequence? The naked owner has the obligation to either replace it with another
property of the same kind and value or, depending on the naked owner, he can simply pay the
usufructuary interest on the indemnity paid to him. This was precisely the rule applied by the SC in the
case of Locsin vs. Valenzuela, where the property under usufruct was taken under P.D.27 – yung “given to
the tenant”.

EASMENTS
A few important points to remember: try to take note of some of the distinctions between
easement and lease. One distinction is that an easement is a real right, lease is a real right only when more
than one year and registered. Another important distinction is that you can only have an easement with
respect to immovable property or real property, yung lease pwede kahit na personal or movable property.
Kinds of Easments
Remember the various types or classifications of easements. An easement may be continuous or

discontinuous, apparent or non-apparent, positive or negative. When is an easement considered
continuous? If its use does not depend upon the acts of men. It is discontinuous if its use depends upon
the acts of men. If it’s only used at intervals, and depends upon the acts of men. When is an easement
apparent? If there is an external sign which continually keeps it in view and reveals its use and
enjoyment. It is non-apparent if there is no visible indication of its existence. When is an easement
positive? When it imposes upon the owner of the servient estate the obligation of allowing something to
be done or of doing it himself. It is negative if it prohibits and prevents the owner of the servient estate
from doing something which otherwise he could lawfully do where it not for the existence of the
easement.
Continuous easement – an easement of drainage, of abutment of a dam, of light and view – these
are continuous easements. The easement of light and view continues to be in use even if there is nobody
making use of the light and view. Discontinuous easement – right of way, because it’s impossible for a
man to be continuously walking to and fro through the right of way, 24 hours-a-day, 7 days-a-week. Its
use depends upon human intervention, upon the right of man.
What about an apparent easement? If the right of way is permanent, there is a permanent road
there, that’s apparent. Again, abutment of a dam, kitang kita mo, nandyan yan. An easement of aqueduct,
by express legal provision, is always considered continuous and apparent. Therefore, it can be acquired
by prescription. Non-apparent easement – the easement of Altius non tollendi, where you are not
supposed to build beyond a certain height. If you are the servient owner and there are people passing by
your property, there is nothing which will indicate that the reason why you are not building beyond a
certain height is because there is an easement. So it is non-apparent.
The easement is positive if it imposes upon the owner of the servient estate the obligation of
allowing something to be done or of doing it himself. A very good example would be an opening made
on a party wall – an easement of light and view through a party wall – that’s a positive easement because
it imposes upon the owner of the servient estate the obligation of allowing something to be done on the
servient estate itself. Negative easement – the easement of light and view is negative if you make the
opening on your own wall. So as to the wall facing the property of another you make an opening – that,
as long as you comply with the requirements of a notarial prohibition, will be a negative easement. Why?
Because the owner of the servient estate will be prohibited from doing something which lawfully he
could do where it not for the existence of the easement. And that is: to block your light and view.

Modes of Acquiring Easments
Remember that an easement is inseparable from the estate to which it either actively or passively
belongs. You cannot alienate an easement separately from an estate to which it belongs. How are
easements acquired? Either by title or prescription, but remember one very important rule: only
continuous and apparent easements may be acquired by prescription. Discontinuous or non-apparent
ones can only be acquired by title, not by prescription. That is the reason why an easement of right of way
cannot be acquired by prescription, because it is discontinuous. It may sometimes be apparent or non-
apparent but it is always discontinuous. Even a railroad easement – easement in favor of a railroad, may
riles and etc., that is still considered as discontinuous.
What is the prescriptive period for acquiring easement? 10 years. When does the period start to
run? In the case of positive easement, on the day that the owner of the dominant estate started to exercise
it upon the servient estate. So, if the opening is made on a party wall, that’s a positive easement. From the
day the opening is made, the 10-year-period starts to run. In the case of negative easements, the 10-year-
period will start to run only from the date when there is a notarial prohibition on the owner of the
servient estate. If I make an opening on my wall facing your property, I have to serve you with a notary
prohibition telling you “do not block my light and view”, the 10-year-period will start to run only upon
service of the notarial prohibition.
Take note, however, of Art.624. When there is an apparent sign of an easement between two
estates, established and maintained by the owner of both, and these two estates are disposed of, either or
both of them are alienated in favor of others, and at the time of the alienation, nothing to the contrary is
provided for in the contract or agreement, nor are these apparent signs of an easement removed, then,
upon the alienation of either or both estates, these apparent signs will be considered as title and would
enable the easement to continue after the alienation.
Example: Lot 1 and 2 are both owned by Mr. X. On Lot 1, there is a house with big windows
facing Lot 2. Lot 1 was sold to Mr. A and Lot 2 to Mr. B. At the time of the sale, nothing was said about
removal of any easements, the big windows were not closed. 1 year later, Mr. B was trying to build on his
property, sabi ni Mr. A “Pare ko, I have an easement of light and view. If you want to build on your
property, you have to observe 3 meters.” Ang sabi ni Mr. B “ay teka muna, nasaan ang notarial prohibition
mo? How could you have possibly acquired an easement of light and view when you never served any
notarial prohibition on me?” Who is correct? A would be correct, applying the provisions of Art.624 – the
existence of those big windows is an apparent sign of an easement in favor of his property. Since that
apparent sign was not removed at the time the properties were alienated by the former owner, they will
now be considered as title and the easement will be allowed to continue. Yan ang ibig sabihin ng Art.624 –
Gargantos vs. Tanyanon.
You take note of Art.626, which is a new provision in the Civil Code. According to most
commentators, including the code commission, is intended precisely to counter the previous ruling of the

Supreme Court. Under a previous ruling, ganito nangyari: There was a sugar mill which had an easement
of right of way over intervening estates so that they could transport the sugar canes of sugar planters
located further on. The SC said “if there are new sugar planters who would also want to have their sugar
canes milled in that mill, then the sugar mill can also use the same right of way to transport the sugar
cane. According to most civilists, including the members of the code commission, mali yung desisyon na
‘yon in Balderama vs. North Negros Central, kaya nga daw nagkaroon ng Art.626. Under the present article, the
owner of the dominant estate cannot use the easement except for the benefit of the movables originally
contemplated. Neither can he exercise the easement in any other manner than that previously established.
626 is precisely intended to correct that former ruling. The milling company cannot use the same right of
way to transport the sugar canes of other additional planters who were not contemplated when the
easement was earlier established.
Rights and Obligations of Dominant and Servient Estates
Expenses for the maintenance of the easement, these will have to be borne by the owner of the
dominant estate. The owner of the servient estate, if it becomes apparent later on that the location or
manner of use of the easement is turning out to be very inconvenient to him, may propose a change in the
manner of use or location of the easement. If there are several dominant estates, they would all have to
contribute proportionately to the maintenance of the easement.
Modes of Extinguishing Easement
You take note of Art. 631. Merger, just like Usufruct, of the ownership of the dominant and
servient estates, that will result to the termination of the easement. The merger must be a permanent one,
not simply a temporary merger. If it is merely a temporary merger, for example the owner of the
dominant estate sells his estate under pacto de retro to the owner of the servient estate, the easement is not
extinguished, it is merely suspended. Upon the exercise of the right of repurchase, it will obviously be
revived.
Renunciation by the owner of the dominant estate – that also terminates the easement.
Non-user for ten (10) years – if either or both of the estates fall into such condition that the
easement could not be used. But the easement will revive if the conditions improve, unless, in the
meantime, prescription has already set in.

LEGAL EASEMENTS
On Legal Easements: easements relating to waters – the lower estates are obliged to receive the
water, including the soil and other materials which naturally flow from the higher estate. As long as
everything happens naturally, there is no human intervention (bumagsak ang ulan, etc.), there is no
obligation to indemnify. If there is human intervention, however, for example the owner of the higher
estate draws water from a river, uses the easement of aqueduct and transports the water to his estate,
uses it for some business or industry, and then the excess water falls to the lower estate, there would be
an obligation to pay for indemnity. Take note of the easements applicable to the banks of rivers and
streams. As I mentioned earlier, this has been modified by Art.51 & 52 of the Water Code. So, under the
Water Code, the width of the area covered by the easement for the benefit of recreation, navigation,
floatage, fishing and salvage (please take note, kasama ang recreation), the area depends upon the location.
In urban areas, the width of the easement is only three (3) meters. In agricultural areas, the width is
twenty (20) meters and, in forest areas, the width is forty (40) meters.
Right of Way
Easement of Right of Way – paborito rin ito ng mga examiners. Remember, you can demand right of way if
your estate has no adequate outlet to a public street or highway because it is surrounded by other
immovable belonging to other persons. The outlet to a public highway must be an adequate outlet. In this
connection, it has been held by the SC: where the outlet to a public highway is through a dry riverbed,
that is not considered an adequate outlet. Why? During the rainy season, hindi ka makadaan doon. Maaaring
during the dry season, pag may el niño dry yan pero pag nag uulan na, wala ka nang outlet nyan, so it’s not
considered an adequate outlet. I refer to the case of Incarnacion vs. CA. As long as there is an outlet,
however, even if it is a very inconvenient outlet, halimbawa bako-bako yung daan at pag tag-ulan maputik, so
it’s an ordeal traversing the outlet, that is still considered an adequate outlet and, therefore, you cannot
demand a right of way through another estate. So, mere inconvenience does not justify the demand for a
right of way. What is the indemnity to be paid to the owner of the servient estate? If it is a permanent
right of way, the indemnity will have to be the value of the land occupied by the passage plus any
consequential damages. If it is not a permanent road, simply involves walking through the property of
another, then the indemnity will simply be whatever damage caused to the servient estate as a
consequence to the passage. In determining where the right of way will pass through the servient estate,
remember that there are two factors to consider: (1) distance and; (2) amount of damage or prejudice to
the servient estate. Between the two, the one which should be given preference is the factor of the amount
of damage. In one case, a right of way had to be established through the servient estate. If a straight path
or road will be taken to the public highway, that will involve the demolition of a building. If the right of
way will a longer route, however, it will involve cutting down an avocado tree. The SC said “syempre dun
na tayo sa avocado. Less prejudicial putulin yung avocado tree kesa sisirain mo yang building na ‘yan.
Masasagasaan kung direct yung linya.” So it is the amount of damage which is given preferential
consideration in determining where the right of way will pass.

If the owner of property sells it, and after the sale, he realises that he is now surrounded by the
property he sold, he has no outlet to a public highway, can he demand the right of way? The answer is
YES. Does he have to pay indemnity? YES. But if he donated it, he can simply demand the right of way
without paying the indemnity. Why? E binigay na nga nya yun. Nung nakulong sya, wala sya madaanan, dapat
syempre naman bigyan sya ng libreng right of way. Reverse situation: I sold property to you, it tuens out it is
surrounded by other properties belonging to me, you have no outlet to a public highway, can you
demand a right of way? YES. Do you have to pay indemnity? NO. But supposing that it was not a sale, I
donated property to you and after the donation, you discovered that the property is surrounded by other
properties belonging to me. Can you demand a right of way? YES. Do you have to pay indemnity?
Syempre naman, donation ito e. So you apply different rules for donors and to sellers of property.
What is the legal consequence? If after a right of way has been demanded and constituted, the
government opens another public road in such a way that the dominant estate now has another direct
access to the public street or road, is the easement over the servient estate which was earlier created when
that new road was not yet in existence automatically terminated? The answer is NO. It will only be
terminated if desired by the owner of the servient estate. The option is given to the owner of the servient
estate. Of course, if the owner of the servient estate decides to terminate, he will have to return the earlier
indemnity which he had received from the owner of the dominant estate, walang interest ‘yon. Maybe
that’s one reason why the owner of the servient estate may not want to terminate the easement. “Earlier
nag dedemand ka ng easement dito, o ayan, gamitin mo.” It’s not automatically terminated, but depends
upon the will of the owner of the servient estate. The owner of the dominant estate cannot demand the
termination of the easement. That option is granted only to the owner of the servient estate under Art.655
of the Civil Code.
Party Wall
Easement of Party Wall – basically, if there is a dividing wall between two estates, presumption –
that is a party wall. In this easement, which is the dominant and which is the servient estate? The servient
estate is the party wall itself. The dominant estates are the two adjoining owners. There is a presumption
that whenever there is a dividing wall between two estates, that is a party wall, unless there are external
signs which would indicate that it is not actually a party wall. For example, if the wall is standing
exclusively entirely on the lot of one of the parties, sa lote lang nya nakatayo, that’s not a party wall. If it is
straight on one side and plumed on the other, to whom is the presumption of ownership? To the party on
the side it is plumed because it’s occupying more of the property. You just take note of the exterior signs
contrary to the existence of a party wall under Art.660. Who is responsible for the maintenance? Of
course, both adjoining owners. They must contribute proportionately to the maintenance of the party
wall. Supposing one of the adjoining owners wants to increase the height or width of the party wall, can
he do it? YES, but he will have to shoulder the additional expenses for maintaining a taller of thicker wall,
and he has to provide the additional land needed for a thicker wall. If one of the adjacent owners wants
to exempt himself from contributing to the expenses of maintenance, the law allows him to renounce his
part interest in the party wall, except when the party wall supports his building.

Light and View
Easement of Light and View – just remember, if you make an opening in a party wall, that’s a
positive easement. Prescription starts to run from the time the opening is made. Nagbukas ka ng opening
sa party wall para makita mo yung magandang dalaga na naliligo sa swimming pool sa katabi mong lote,
syempre your neighbour has the right to close the opening. So what can you do? Open it again. It will be a
game of close-open. Pag pinabayaan nyang naka open yan for ten (10) years, she can no longer ask for the
closure. You would have acquired the easement of light and view through the party wall by prescription.
If you make an opening on your own wall, nakaharap, remember that in the case of direct views, you have
to observe a distance of two (2) meters. Direct view yung diretsong tingin. Oblique view, yung medyo
lilingon ka, the distance is less – sixty (60) centimeters. If you don’t observe these distances under Art.670,
you cannot open regular windows or openings on your own wall. If you do, your neighbour can ask for
the closure of your openings. But what if it is too hot or dark inside? Under the provisions of Art.669, the
law allows you to make regulated openings. Hindi pwedeng malaki, limitado lang ang size ng opening na
pwede mong gawin. Thirty (30) centimeters square, not 30 square centimeters – those are different.
Meaning, the height and length is 30 centimeters each, so medyo malaki laki ‘yon. Pero hindi mo pwedeng
magamit yang opening na yan para nakawin yung mga naka sampay na damit ng kapit bahay mo. Why? It can
only be placed at the height of the ceiling joist. What is a ceiling joist? Those are the beams connecting the
posts of buildings. If there are several floors in a building, each floor has ceiling joists, so each floor
pwede kang may opening, regulated openings. That’s not all, the law also requires that there should be
iron gratings embedded in the wall. Not only that, kailangan mayroong wire screen. That’s only to give you
a little light and ventilation lalo na sa panahon ng el niño, kainit ng panahon, e kung walang opening yan, baka
mamatay ka sa heatstroke. So remember the requirements under Art.669.
If your neighbor has already acquired an easement of light and view against you, you cannot
construct closer than three (3) meters from the boundary line.
In intermediate distances, etc., just remember that the law makes a distinction between tall trees
and small trees. You are not supposed to plant trees very close to the boundary line of your property.
With respect to tall trees, you have to observe a distance of at least two (2) meters. When it comes to small
trees, fifty (50) centimeters. Magandang provision yung Art.681 but before that 680 – if the branches of the
tree of your neighbor extends over your property, you don’t have the right to cut off those branches. You
demands from your neighbor “putulin mo yan.” Pero kung yung invasion is from below, yung mga roots,
pwede mong tagain yan, you can cut off the roots. When it comes to branches extending over your property,
hindi naman puro damage or injury ‘yan, posible din may benefit. Halimbawa matamis yung mangga, number 1
rule – bawal mong yugyugin yung branch. The law simply gives you the right over the fruits which fall
naturally. So hindi pwedeng sungkitin, hindi pwedeng yugyugin. Kung ano ang malaglag, yun lang.
Other Legal Easements
Easement against Nuisance – it’s not really an easement, it’s simply a restriction on property.

Easement of Lateral and Subjacent Support – if the properties are on the same plane or same
level, that is called an easement of lateral support. If one is below, or easement is below, that would
involve subjacent support.
Voluntary Easements – you simply read these provisions.
If the property is under co-ownership, to impose an easement on the property, all the co-owners
must give their consent.
With respect to perpetual voluntary easements – if naked ownership is vested on one person
while the usufruct or beneficial ownership is vested on another, you can impose a perpetual voluntary
easement without the consent of both owners.

NUISANCE
Just remember what’s the basic concept of Nuisance, what is a Nuisance? It is anything, any act,
condition, business, establishment, which: (1) injures or threatens the health or safety of others; (2) annoys
or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public street or body of water; or (5) hinders or impairs the use of property. Noise
can be a nuisance. A thing which offends or annoys the senses is categorically a nuisance. A huge
billboard which portrays a naked woman in all her glory maybe something that could qualify as a
nuisance as something which defies or disregards decency or morality. A house of prostitution would
obviously fall under that category.
You remember that when it comes to noise as a nuisance, it is something that would irritate most
people. In determining, however, whether a particular noise would justify the award of damages to a
property owner who happens to reside in the vicinity, you remember that the test is not whether that
kind of noise will irritate a person of sensitive nature. We have varying levels of tolerance in so far as
noise is concerned. Some people are quite sensitive, gets easily irritated by any and all kinds of noise. But,
as pointed out by the SC, we have to pay for (deal with) certain things if we are to live in communities
especially urban ones. In other words, if you are to reside in manila, there is bound to be a certain amount
of noise, that’s part of what you have to deal with living in an urban community.
You remember that case of Velasco vs. Manila Electric Company, what happened there was there
was a certain Dr. Velasco, he was constantly irritated by a certain kind of noise emanating from a meralco
substation which happen to be located near his property, and so he sued for damages. The Court said, in
determining whether there is justification or basis for the award of damages, what we should consider
would be the standard based on an ordinary person of ordinary sensibilities, not what would be irritating
to somebody who is very sensitive. Because, as I mentioned a while ago, noise is something which we
have to really accept as a part of daily living in an urban setting. At any rate, in that case, studies were
conducted and even experts were consulted, and it was established that the amount of noise emanating
from that meralco substation was really higher than the ambient noise in that neighbourhood, so it
justified the award of damages to Dr.Velasco in connection with that case.
I would just like to remind you that the SC also said “the provision in the civil code on extra
ordinary inflation or deflation of the currency stipulated, 1250, the value of the currency at the time of the
constitution of the obligation shall be used as the basis for fixing the amount to be paid. That provision
cannot be used if the obligation does not arise from contracts.” Why? Because the provision itself says
“currency stipulated” so if your obligation arises not because of contract but, as in the case of Velasco –
because of a quasi-delict, there is no basis for applying that provision. In other words, you cannot ask for
the adjustment of the award of damages, even assuming that it took so many years before the case could
be finally decided by the court because you apply the provision only if there is a currency stipulated, and
you can only have a currency stipulated if there is a contract between the parties. That’s no longer
technically a part of property but naalala ko lang because you can never can tell, baka itanong.

If a part of your house encroaches upon a public street, that’s a nuisance because it obstructs the
free passage of that public street.
Public and Private Nuisance
A Nuisance may either be a public nuisance or a private nuisance. When would it be public or
private? It is public if it affects either the entire community or a considerable number of persons. Upon
the other hand, the nuisance would be considered merely as a private nuisance if it does not affect the
public at large or a considerable number of persons.
You remember the doctrine of Attractive Nuisance. What is that doctrine all about? Simply
stated, if you are the owner of property and on that property you maintain a dangerous thing or
equipment which is liable to attract children, and you don’t take necessary precautions to prevent
children, especially those of tender years, from getting injured, you are liable for damages if a child is
injured by your appliance or equipment, even if, technically speaking, the child is a trespasser. Let’s say
you have in your yard a huge industrial fan which you need for an air-conditioning unit, centralized air
conditioning yung bahay mo. Alam mo ang mga bata pag may nakitang umiikot ikot, the tendency of children is
to touch. E kung naputulan ng kamay yung anak ng kapit-bahay mo because of that, you might be held liable
under the doctrine of attractive nuisance, even if the child was technically a trespasser.
In relation to this doctrine, however, you remember that it has been held in the case of Hidalgo
Enterprises, that a swimming pool is not an attractive nuisance. Why? Because a swimming pool,
according to the ratio of the decision, is simply an imitation of nature. The owner would not be liable
even if there are no guards on the premises. If a child of tender years should drown in the swimming
pool, the owner will not be liable.
Nuisance per se and per accidens
You also remember the classification between nuisance per se and nuisance per accidens. A
nuisance per se is a nuisance which will be one under any and all circumstances, kahit saan mo ilagay
nuisance ‘yan. The usual example would be a house of prostitution. But if for example it’s a massage
parlor, even conceding all of the evil conotations which come with massage parlors, or if it is a motel, it’s
merely a nuisance per accidents. It becomes a nuisance only, depending on the location or the
circumstances. A patis factory for example, or a leather-tanning factory – there was a time when, I don’t
know if it is still true up to now, there was a town in Bulacan where there were several businesses
engaged in leather-tanning industry. There was a time na papasok ka palang, maamoy mo na yung talagang
ibang amoy, so that would be considered as merely a nuisance per accidents, not a nuisance per se.
I cannot forget what was related to us by Justice Cruz when he was handling one of our subjects
not too long ago, he could not quite reconcile himself with the fact that when he took the bar
examinations, there was a question involving a patis factory and I think the ultimate issue was whether or
not that patis factory was a nuisance per se or a nuisance per accidents. Of course, his answer was based
on his conclusion that that is merely a nuisance per accidents, but it would seem that he was not given a
high mark with respect to that question, and it would seem that the examiner that time thought that a

patis factory was a nuisance per se. Obviously that is incorrect, which only tells us that even bar examiners
can be incorrect in their conclusions. That is one reason why after the bar examinations every year, there
are certain groups which submit suggested answers to the chairman. UP Law does that, and also PALS,
Philippine Association of Law Schools. Because it’s possible baka naman mali ang appreciation ng examiner
sa sarili nyang tanong.
Mere lapse of time does not legalize any nuisance. It does not matter that that nuisance has been
going on for many years. It does not become legal simply because it has existed for many years.
Remedies against Nuisance
You also remember the remedies available against a public nuisance, as well as a private
nuisance. In so far as a public nuisance is concerned, you remember the remedies: first, there may be
prosecution under the revised penal code; second, there may be a civil action for damages and; third,
there may be abatement without judicial proceedings. With respect to the third, I just want to emphasize
one very very important point – that remedy is available only if it is a nuisance per se. That cannot be
availed of if it is merely a nuisance per accidents.
For example, in one case, a local government unit tried to, by means of resolution or an ordinance
of a local sanggunian, ordered the transfer of a gas station from its present location to somewhere else.
Court said “that cannot be done.” Because abatement without judicial proceedings is permitted only if it
is a nuisance per se, not when it is a nuisance per accidents. And obviously, we can all agree that a
gasoline station can only be a nuisance if it is situated in a place where it should not be. It is not a
nuisance under any and all circumstances, it becomes a nuisance only when it is situated, for example, in
a residential area. Along the same vein, in another case, I think happened in Lucena, the local
government again tried to order the transfer of a bus and jeepney terminal from its present location. The
Court held “that cannot be done without proper judicial hearing.” Abatement without judicial
proceedings is allowed only if it is a nuisance per se.
In another case, the city of Manila tried to prohibit motels, bars, saunas and massage parlors, I
think in the Ermita district. Again, the Court held “that cannot be done without proper hearing because
abatement without proceedings is available only in nuisance per se, not nuisance per accidents.” Who
takes charge of the abatement of a public nuisance? District Health Officer will determine and make sure
that one of the remedies available against the public nuisance is availed of. In the case of a civil action,
one of the remedies available under the law, it should be commenced by the local mayor, city or
municipal. A private individual, however, is permitted or given by law the right to file an action for the
abatement or for damages based on a public nuisance if it is especially injurious to him.
With respect to abatement of a public nuisance which is especially injurious to him, there are
certain requisites which must be complied with: (1) there must first be a demand made upon the owner of
the property or the lawful possessor of the property in which the nuisance exists; (2) the demand must
have been rejected, because if the demand was favorably acted upon by the property owner, there would
be no need for any further action; (3) the abatement must also be approved by the district health officer
and it must be actually executed with the assistance of the local police and; (4) the value of the

destruction must not exceed 3,000 pesos. Considering present prices and present values of properties, I
doubt whether there is anything which would qualify for abatement under this provision. I cannot think
of anything which would cost only 3,000 or less for purposes of abatement by a private individual.

MODES OF AQUIRING OWNERSHIP
Just remember, difference between mode and title. Mode is that which by itself is sufficient to
transfer and convey ownership or for the acquisition of ownership. Title simply provides the reason, the
juridical justification for a mode. If I sell to you my car, title is the contract of sale. But what would
effectively transfer and convey ownership to you is not the contract of sale, but rather the delivery of the
car. Unless and until there has been delivery, ownership would not have been transferred and conveyed.
Remember the various modes of acquiring ownership like prescription. Law itself is a different
mode of acquiring ownership, for example in that provision discussed last time where if you are the
owner of a parcel of land, that the fruit tree of your neighbor has some branches hanging over your
property, diba sabi naten the fruits which naturally fall would belong to you. In that case, I submit that it is
the law itself which is the mode of acquiring ownership. For that matter, under the provisions of the civil
code on change of river bed, what is the applicable rule? As previously mentioned, if the river changes its
course, the abandoned bed ipso facto belongs to the owner of the land which is now occupied by the new
bed. Again, that is an example of the law itself being the mode of acquiring ownership.
OCCUPATION
Occupation is another mode of acquiring ownership. Remember, when it comes to occupation,

this would apply only to movables. Only movables can be acquired by occupation. When it comes to
immovables (land), that cannot be acquired through occupation. Why? Because one of the requisites of
occupation, by its very nature, is that the property must not have an owner. When it comes to land, hindi
pwede yan. That is not possible, because of the Regallian doctrine. That’s the reason why the law even
categorically states in Art.714 that the ownership of a piece of land cannot be acquired by occupation.
Donation is another mode of acquiring ownership to be discussed later on.
INTELLECTUAL CREATION
Intellectual Creation is another mode of acquiring ownership. Tradition or Delivery, as a

consequence of certain contracts. Succession, whether testate or intestate – that’s a separate mode of
acquiring ownership.
You always need a mode of acquiring ownership. Without a mode, ownership cannot be
considered to have been vested in a person. There should always be a mode. Recall in the case, in this
connection, of Acap vs. CA. May namatay na tao, so ang ginawa the heir executed a document entitled
“Declaration of Heirship with a Waiver of Hereditary Rights”. In that docment, a third person was
supposedly given the properties owned by the decedent. So ang sabi ng heir “ako ang heir, I am waiving
my hereditary rights in favor of a third person who is not a legal heir.” The Court held “the ownership of
the properties subject of that document did not vest in the third person.” Why? Because there is no mode

of acquiring ownership. That waiver does not operate to vest ownership to the third person. I repeat,
there must always be a mode of acquiring ownership, otherwise ownership cannot be considered vested
in a person.
One time, it was asked in the bar examinations, how do you distinguish occupation from
possession. Number 1 distinction: in occupation, it is essential that the property must not have an owner.
Sabi nga naten, you cannot have occupation as a mode of acquiring ownership if the property has an
owner. Number 2, occupation applies only to movables. Of course, alam natin ang possession, whether
movable or immovable, that would apply. And Number 3, occupation is a mode of acquiring ownership.
Possession, by itself, does not operate to vest ownership on the possessor.
Sometimes bar examinations are based on what you might call inocus provisions. Yung mga
provisions na hindi naten pinag papapansin. So it might help you to remember the provisions of Art.716
which speaks about swarms of bees, birds and bees. If you happen to be engaged in the production of
honey, so meron ka mga bees, they transfer to the neighboring estate, you have the right to pursue them.
Medyo mahirap maimagine, hahabulin mo yung bees. Ordinarily, ikaw yung hinahabol ng bees, diba? Under
Art.716, the law gives you the right to pursue them. But you have only two (2) days, if you do not pursue
them for 2 days then they would belong to the owner of the land to which they have transferred. With
respect to domesticated animals, you have a longer period, twenty (20) days. If you don’t claim these
domesticated animals within the 20 day period, they would belong to the one who has caught them.
Please take note that Art.716 applies only to domesticated animals. There is a difference between
domesticated and domestic animals. In the case of domestic animals, dogs or cats for example, they are
not subject to that provision. In other words, if you have a dog, even if they have been in the possession
of somebody else for more than 20 days, you can still claim your dog back, unless you have already
abandoned your dog. Occupation could not be possible because they still have an owner.
You also remember the special rule for pigeon and fish. If they transfer to another estate, they
have not been lured by some artifice or fraud, they would belong to the owner of that other estate. Kung
meron kang property tapos dumating ang another Ondoy, yung nearby fishpond owner maraming bangus sa
baha, nagpunta sa property mo, sa’yo na ‘yun, praise the Lord, under the provision of Art.716. And then the
other important thing I want you to remember is the rule of “finders-keepers”. Under Art.719 and 720, if
you find movable property which is not a treasure, and you know who the owner or lawful possessor is,
you are obligated to return it.
Which reminds me of a story, there was an elementary student. He was late for class one day and
the teacher asked him “why are you late?”, “e kasi ho ma’am, meron po tao na nawalan ng 500 pesos.
Hinahanap hanap po nya yung 500” “e bakit ka na-late?” “e nandun po ako” “tinulungan mo maghanap? That’s
very good” “not exactly po, kase po inintay ko po umalis bago ko inalis yung paa ko dun sa 500”. That’s wrong
of course. What’s the rule? You are supposed to return it to the lawful owner or possessor and, in this
connection, you have even a provision in the revised penal code, Art.308 – you are guilty of theft if you
do not give the property to the lawful owner or possessor or proper authorities. ‘Di ko makalimutan yang
provision na ‘yan. Yan ang isang mali ko nung ako’y nag bar.

So what is the requirement under 719? May nakita kang property, ‘di mo alam kung sino ang may ari
o lawful possessor, you’re supposed to deliver it to the local mayor. Pag bigay kay mayor, hindi ibig sabihin
kay mayor na ‘yon. The mayor is obliged, under this provision, to publish the finding of that movable for
two (2) consecutive weeks in any way he deems best. So pwedeng mag post ng notices sa bulletin board sa
munisipyo, o sa city hall. If the property is of such nature that it would deteriorate or it would necessitate
incurring expenses just to keep it, which would diminish the value, the law allows the sale of the
property after eight (8) days from the publication of the notice. Kung halimbawa yung nakitang property is
isang galon na ice cream, ay syempre hindi naman tatagal yan, you cannot even wait for 8 days. Six (6)
months from publication, that’s the period given to the owner to appear and to claim it. If he does not
appear within 6 months after publication, then the property would belong to the finder. If the owner,
however, appears, may obligatory reward – ten percent (10%) of the value of the property. The law
requires him to give a reward to the finder.
In intellectual creation, we need not bother with the details, like copyright, etc. We just remember
the rule with respect to letters. Under Art.723, who has ownership? The addressee, the person to whom
the letter was addressed and delivered. But, they cannot just be published without the consent of the
writer of the letter or his heirs. Of course, the courts may authorize the publication if the same is
necessary for the public good or the in the interest of justice. The addressee or recipient of the letter
cannot just publish them. I think that affords a little degree of protection to people who are fund of
writing love notes and letters, hindi pwedeng i-publish yan, ‘di sya pwedeng mabuking without his consent or
at least his heirs.

DONATION
According to Art.725, donation is an act of liberality whereby a person disposes gratuitously of a

thing or right in favor of another who accepts it. The code defines it as an act. If you look at donations,
however, it might be more accurate to consider it not just as an act but as a contract. Why? Because it
requires not just the act and consent of the donor, it also requires the acceptance on the part of the donee.
Without the acceptance, you do not have a valid donation. Only an owner of a property can donate it, a
non-owner cannot donate. If property is donated by somebody who is not the owner, that is not a valid
donation. Although, of course, that may provide the basis for the acquisition of ownership not through
donation but through prescription later on. Acceptance is necessary for a valid donation. Whether the
donation is mortis causa or inter vivos, there must be acceptance. If the donation is a donation mortis causa,
the acceptance can only be made after the death of the donor. An acceptance of a mortis causa donation
before the death of the donor would be clearly premature.
Types of Donation
There are four (4) principal types of donation, according to one classification based on purpose or
cause:
First, the Pure or Simple donation, a donation which is essentially and exclusively gratuitous in
character. No conditions, not intended to remunerate another person, but simply born out of the
generosity of the donor;
Second, the Remuneratory or Compensatory donation. This is intended to remunerate or

compensate another person for past services which, however, does not constitute demandable debts. You
have a classmate who has been always helping you study for your daily recitations, whenever you are
reciting nasa likod mo yan bubulong bulong ng tamang sagot at pag may exam naman e kunwari babasahin yung
kanyang sagot para makita mo lang. If you donate later on in life, milyonaryo ka na, naalala mo yung classmate
mo, that would fall under the category of remuneratory donation because it is intended to somehow
recompense your classmate for past services which do not constitute demandable debts.
Third, the so-called Modal donation. Sometimes called conditional, the donation is made in
consideration of future services or the donor imposes certain conditions or charges where the value of the
property donated is more than the charges imposed by the donor. If the value of the property donated is
equal to or less than the amount of the charges imposed by the donor, then it would fall under the fourth
category – an Onerous donation. There would be a very important legal consequence if it is an onerous
donation, because an onerous is not in reality an act of generosity. Consequently, it will be governed not
by the law on donations, but by the law on contracts. So again, a donation is considered onerous if the
value of the property donated is equal to or even less than the amount of charges or the value of the
conditions imposed by the donor. If that happens, you apply the law on contracts.

Inter vivos and Mortis causa
Another important classification of donations is that between donations inter vivos and donations
mortis causa. Remember one very important rule: if it is a donation mortis causa, what is the form to be
observed? The form prescribed for wills. You can only have a valid donation mortis causa if you execute a
valid last will and testament. When would it be a donation inter vivos or mortis causa? If the donation is to
take effect during the lifetime of the donor, it is inter vivos. If it is to take effect only after the death of the
donor, it is mortis causa.
If the donor, in the deed of donation, limited the registration of the donation before his death,
sabi nya “I’m donating this property to the donee, but the donee is prohibited registering this donation
before my death”, what kind of a donation would that be? Mortis causa. A prohibition against registration
before the death of the donor makes it a donation mortis causa. If the donor reserves the usufruct of the
property, “I donate this property, but hereby reserves the usufructuary of this property until I die”, mortis
causa or inter vivos? Inter vivos yan. In other words, the property has already been donated, it’s only the
usufruct which is retained with the donor but ownership would have already been transferred.
If the donor says in the deed of donation “I’m donating this property, but I hereby reserve the
right to revoke this donation any time before my death”. Maliwanag yan, as long as there is a reservation
on the part of the donor of the right to revoke due to any cause any time before his death, that shall be
considered as a donation mortis causa. Sabi nga ni Justice JBL Reyes, “that’s one of the characteristics of a
donation mortis causa.
If the donation is revocable at will any time before the death of the donor – that is one of the
distinguishing marks of a mortis causa donation. If the donor granted the donee a limited right to dispose,
for example the donor said “the donee may dispose of the donated properties only if it is necessary to
raise funds for my support”, it has been held by the SC that that is a donation inter vivos. If the document
is titled as a donation mortis causa and it is clear, in the deed of donation, that it is being made for services
rendered and still being rendered by the donee, and it is provided that the donee shall take possession
only after the death of the donor, with the obligation to have a certain number of masses set for the
repose of the soul of the donor, is that inter vivos or mortis causa? Sabi ng SC that’s a donation inter vivos.
In one case, in the deed of donation, the donor prohibited the donee from disposing of the
donated property within 10 years from the death of the donor, mortis causa or inter vivos? Mortis causa,
according to the SC. In one case, the donor made a warranty that nobody will disturb the donee or
question the donee’s right. Inter vivos because the warranty made by the donor implied that title to the
property has already been conveyed. In another case, the donor said in the deed of donation “the
properties cannot be disposed of in any way within my consent.” Inter vivos or mortis cause? Mortis causa.
The donor, of course, is allowed conditions to which the donation would be subject. If he imposes an
impossible or illegal conditions, these are not considered imposed. In other words, they are simply
ignored and does not affect the validity of the donation.
You remember, in this connection, that the rule is different in the case of obligations. If an
obligation is made to depend upon an impossible or illegal condition, the obligation itself is rendered

invalid. The rule is different in the case of donations as well as in the case of testamentary dispositions.
What’s the reason for the difference? Because donations and testamentary dispositions are principally
based on the generosity and liberality of the donor. In one case, involving the Roman Catholic of Manila,
a property was donated and the condition was that the property shall not be alienated for 100 years. That
was considered an illegal condition by the SC. That is an unwarranted and undue restriction on the rights
of ownership.
When is a donation perfected? The law is very clear. A donation is perfected from the moment
the donor knows of the acceptance by the donee. In this connection, you also remember that under
Art.737, the donor’s capacity shall be determined at the time of the making of the donation. The capacity
of the donor will have to be determined as of the time he makes the donation. When is the donation
deemed made? When is this moment called the “making of the donation”? it is at the moment when the
donation is perfected. And when is that moment of perfection? At the moment that the donor knows of
the acceptance by the donee. Therefore, the donor must have capacity at that time. If the donor signs the
deed of donation when he was insane, or incapacitated, the donation was sent to the donee who decides
to accept it the proper form and the acceptance is sent back to the donor. When the acceptance was
delivered to the donor, he was already sane. Is there a valid donation? If we apply this provisions
literally, it would seem that, YES, there would be a valid donation. But what about the donor? If you
happen to be the donor in that case, syempre sira ulo mo, you don’t know what you’re doing. Pirma ka ng
pirma lang, e sira nga ulo mo e, tapos one day bigla ka tumino, datingan ngayon yung mga acceptance. Yun pala
pinag dodonate mo na yung kung ano anong mga properties mo, do you think it would be fair in so far as you
are concerned? To be left without any possible remedies? I do not think so, I think in that case the donor
should be allowed to question the validity of the donation. After all, he was not really capacitated when
he signed the donation. He was precisely insane. As a matter of fact, I think we can even find guidance in
the provisions of Art.1323 of the civil code under the general rules on contracts – an offer becomes
ineffective upon the death, insanity, insolvency or civil interdiction of either party before acceptance is
conveyed. Under that provision, even assuming that both parties were capacitated, but after the offer was
made either one of them becomes insane, the law says automatically the offer becomes ineffective. I think
we can apply the principle under that provision even in the case of donations with more reason, if at the
time the offer of donation was made the donor was already insane.
Persons who may Give or Receive a Donation
Remember the donations which are considered void under Art.739: Number 1, of course, those
made between persons who are guilty of adultery or concubinage at the time of the donation; Second,
those which are made between persons found guilty of the same criminal offense where the donation is
made in consideration of the said offense and; Third, those made in favor of public officers or their
spouses, descendants or ascendants, by reason of their office. E sino ba naman ang sira ulong public officer
who will agree to receive a bribe in the form of a donation na may paper trail and everything? Syempre
mga COD yang mga ganyang transaction.

Remember that minors and all other persons who cannot enter into contracts maybe the donees
in donations, but the acceptance should be done through the legal representatives. Even unborn but
conceived children can already be donees. Remember that those still in the womb are already deemed
born for civil purposes beneficial to them under the provisions of the civil code.
Under Art.744, I call your attention to the rule on double donations. Sabi ng law under 744, if the
same property is donated to two different persons, the rule on double sale will apply. There is something
wrong with this provision. Why? Because it seems that the codifiers forgot that the donation, by itself, is a
distinct mode of acquiring ownership. What do I mean? If I donate property to Mr.A, and later on I
donate the same property to Mr.B, it is obvious that if the first donation is valid, I cease to be the owner of
that property. It’s already owned by Mr.A, the donee. If I donate that same property to Mr.B, the second
donation is obviously invalid because only the owner of the property can donate it. That is the problem
with Art.744.
The acceptance must be made by the donee himself or by a person who is properly authorized to
accept, otherwise the donation is void. And with respect with donations inter vivos, the acceptance must
be made during the lifetime of the donor and of the donee.
Form for Valid Donations
The forms for valid donations are stated in Art.748 and 749. So, you distinguish between personal
and real property. With respect to personal property, even an oral donation is valid. But an oral donation
of personal property requires the simultaneous delivery. If the value of the personal property donated,
however, exceeds 5,000 pesos, for the donation to be valid, the donation, as well as the acceptance, must
be in writing. Kahit na sa kapirasong papel lang, as long as it is in writing. Otherwise, if the donation or the
acceptance is not writing and the value exceeds 5,000, the donation is void. When it comes to real
property, regardless of the value, may be only worth 200 pesos, a few square meters of land located in the
in a remote barangay somewhere in the middle of nowhere, you always need a public document for the
valid donation. The acceptance must be made either in the same instrument or in a separate instrument. If
made in a separate instrument, the acceptance must be noted in both instruments, and the donor must be
notified thereof in an authentic form. That’s very clear in Art.749.
In one case, I refer to Pajarelio vs IAC, the SC, speaking from Justice Isagani Cruz, refused to
strictly apply Art.749. what happened in that case was there was a donation involving real property and
the acceptance was made in a separate instrument. The law requires that the donor must be notified
thereof in an authentic form and must be noted in both instruments. In this case, there was a failure to
note in both instruments that the donor had been notified in an authentic form. Yung notice, sometimes
called Constantia authentica. The SC, however, refused to apply strictly 749 because if the provision will be
applied strictly, it would result in injustice and a distortion in the intention of the donor.

Things that may be donated
What may be donated? You may donate everything you own as long as you reserve, either in
usufruct or in full ownership, sufficient property for your own support, as well as for the support of the
people legally entitled to get support from you. That is the general limitation. If you do not observe that
limitation, you donated everything without preserving sufficient properties for your own support, the
donation may be reduced on petition of any of the persons affected.
A donation cannot comprehend future properties. When is it considered future property? If it is

property which the donor cannot dispose of at the time of making the donation.
Is there a right of accretion in donation? General rule: No accretion. Exception: if the donees are
spouses, unless otherwise provided by the donor. When will there be accretion in donation? I submit that
there would be under the same circumstances as in the case of testamentary dispositions. Meaning to say,
RIP: in case of Repudiation – refusal to accept, Incapacity or Predesist. But the general rule is that: if there
are several donees, there is no right of accretion, except if the donees are spouses, in which case, there
would generally be accretion unless provided otherwise by the donor.
Reversion
In the case of Reversion, remember the rule under Art.757. Reversion may be validly established
in favor of the donor for any case and circumstances. If it is in favor of other persons, it can only be
validly made if the persons are living at the time of the donation. If the provision on reversion is invalid,
it does not comply with the requirements of art.757, only the provision on reversion is voided. The
donation remains valid.
I donate property to Mr. X but I provided for reversion in the deed of donation a statement
saying “upon the death of Mr. X, the property will revert to me.” That is valid, because I’m the donor. If I
say in the deed of donation “I donate the property to Mr. X, but upon the death of X, the property
donated will go the first-born child of my brother Jose.” At the time of the donation, yung kapatid ko wala
pa namang anak, nasa panaginip palang nya. That’s not a valid reversion because at the time of the donation,
the intended recipient, in case of reversion, is not yet living. But in that case, there will still be a valid
donation. Only the provision on reversion is considered void. Is the donee obligated to pay the debts of
the donor? The answer is NO. If there is no order from the donor for the donee to pay the debts of the
donor, the donee is not obligated to pay. If the donation was made in fraud of creditors, then regardless
of whether there is an order or not, the property donated can be made liable for the payment of the debts
in favor of the defrauded creditors. And in that regard, you remember that in case of donations in fraud
of creditors, the good faith of the donee will not protect him. Even if the donee is in good faith, the
creditors will have a right to proceed against the property donated. Why? Because unlike in the case of
transfers by onerous titles, the case of a donation is purely gratuitous, wala namang nawala sa donee. Laway
lang yan, acceptance lang ang kanya dun. So the good faith of the transferee will not protect him if the
transfer is by gratuitous title. If there is an order to pay the debts of the donor, for example he said “the

donee is hereby ordered to pay my debts”, it is understood that that applies only to pre-existing debts of
the donor. It will not cover debts which are incurred by the donor after the donation, yun lang mga
existing debts nya.
Revocation and Reduction
In the matter of Revocation, remember Art.760 – situations where a donation may be revoked or
reduced. Our memory guide is BAR – Birth, Adoption and Reappearance. If at the time of the donation
the donor did not have any children or descendants, the law provides that the donation may be revoked
or reduced if, subsequently, he should have children. Or if a child, which he thought was dead, should
turn out to be living, or in case he adopts a minor child. What is the prescriptive period? Four (4) years
under Art.763 for the revocation or reduction of the donation under 760. It will be revoked or reduced
only to the extent that it is inofficious. It will be inofficious only if it exceeds the so-called free portion of
the person’s estate. In other words, if it would impair the legitime, taking into account the estate of the
testator at the time of the birth, appearance or adoption of the child.
Take note that the revocation or the reduction of the donation under 760 does not happen
automatically. There must be a corresponding case filed for the revocation or reduction of the donation.
Still in connection with 760 and 761, in one case the SC categorically said “there would be no revocation
nor reduction of the donation, even in case of BAR, if there is no allegation and proof in the complaint
that the legitime has been impaired. In other words, the ultimate basis of 760 is impairment of legitime.
Kung wala sana nito, it is not even alleged or, even if alleged, it is not established or proved, there is no
basis for the revocation or deduction of a donation.
The Prescriptive period is four (4) years. The action cannot be renounced and it is transmitted
upon the death of the donor to his legitimate and illegitimate children and descendants.
You take note of Art.764 – this time, the revocation is based on non-fulfilment of a condition.
Remember, the donor may impose conditions. If the donee does not comply with these conditions, the
donation may be revoked at the instance of the donor. Prescriptive period – four (4) years from the time
of non-compliance with the condition. The action is transmitted to the heirs of the donor, and may be
exercised even against the heirs of the donee. It has been held, however, by the SC in one case that the 4-
year prescriptive period for an action for revocation of the donation based on non-compliance with the
condition under 764 does not apply if there is a stipulation on automatic revocation. So, the 4-years
would apply only if there is no stipulation on automatic revocation.
You remember some of the cases where there was no strict compliance with the conditions, and
yet the SC did not allow revocation. For example, you have the case of Roman Catholic Bishop of San Pablo
where a parcel of land was donated to the diocese. The condition was that parcel of land was to be used
for a home for the aged. The bishop, later on, realised that the property donated was not suitable for such
purpose because the adjoining areas where being converted into an industrial zone. So you can just
imagine, pag linagay mo ang home-for-the-aged dyan, napapaligiran ng mga industries, syempre lalong

madadali ang buhay ng mga matatanda ilalagay mo dyan. So what the bishop did was, instead of using the
property for a home for the aged, he decided to put up the home somewhere else and leased the donated
property to a third person. There was an action for the revocation of the donation on the ground of non-
compliance of the condition. The SC held “if you look at it, the bishop was really trying to comply with
the condition the best way he could, so action for revocation will not prosper.”
In another case, a parcel of land was donated to a certain school. The condition was that the land
would be used exclusively for a school building. The problem was, however, there was a certain type of
school building that the government itself says “hindi pwedeng itayo itong school building sa loteng ito”
because for this type, we need at least one hectare, I think. So the property was exchanged with another
property, and dun naitayo yung school building. Again, there was an attempt to revoke the donation for
failure to comply with condition. The SC held “again, what was done was precisely in accordance with
the general purpose of the donation.” So what we can possibly gleam from these cases is that – as long as
the action taken, while not, strictly speaking, a literal compliance with the condition, but the purpose or
objective is maintained, that will not be considered as sufficient basis for revoking the donation.
You remember also the case that happened in Cebu, Central Philippine University. Property was
donated to that university with the condition that the university should put up a medical school in honor
of the donor. Around 50 years later, the heirs of the donor filed an action for revocation because of the
non-compliance with the condition. The SC held “no doubt, more than enough time has passed, almost
half a century that the condition has remained unfulfilled. There is, therefore, no longer any judicial
obstacle to the revocation of the donation.” Of course, there was a rather strong dissent coming from
Chief Justice Davide when he said “there should be time set first for compliance” but the majority said
“wala na, 50 years na lumipas, hanggang ngayon di pa nacocomply, e kailan pa yan?”
Remember the instances when a donation may be revoked due to Ingratitude. First, if the donee
commits an offense against the person, honor or property of the donor or of his, not wife, but spouse or
children under his parental authority. Second, if the donee imputes to the donor any criminal offense or
any act involving moral turpitude, even if he should prove it and was found to be true, unless the crime
or the act was committed against the donee himself or his spouse or children under parental authority.
Third, if the donee, without justifiable cause, refuses to support the donor when he is legally or morally
obligated to give such support.
Ingratitude is something which is personal, in other words, it must be the donee himself who
must have committed these acts. If these acts were committed by the spouse of the donee, hindi yan kasali.
Remember that if the action is based on ingratitude, it cannot be renounced in advanced. It prescribes
within a short period of just one (1) year from the time the donor had knowledge of the act of ingratitude,
as long as, at that time, it was possible for him to institute the action. Because of the highly personal
nature of ingratitude, you take note of Art.770 also. The action cannot be transmitted to the heirs of the
donor, even if the donor should die within the prescriptive period of 1 year. It cannot also be instituted
against the heirs of the donee. But if, prior to the death of the donee, the case has already been filed by the
donor, it will continue.

Art.771, 772 and 773 – these would involve collation. We all know that when a person dies, the
value of all properties which he had earlier gratuitously disposed of during his lifetime will be added or
collated to his estate. If they exceed the free portion, they will be reduced. The purpose is to protect the
legitime of compulsory heirs. Collation, therefore, is only for the benefit of compulsory heirs. It cannot be
invoked by persons who are not entitled to any legitime.
A simple illustration:
Here is Mr.X who has two children, A and B. Let’s assume that in 1975, he donated a parcel of
land (inter vivos) to his friend F, assuming the worth of P40,000 at that time. In 1988, he made another
donation inter vivos, this time to his friend G, this time the land donated was worth P60,000 at the time.
During those years, X was a multi-millionaire, but when X died in 2005, his gross estate was only
P100,000 and had debts of P80,000, so his net is only P20,000.
Let’s make it more interesting, gawin nating P800,000 yung debts nya. So, more debts than estate –
zero balance. Will A and B inherit anything? YES. Why? Because of collation. Remember, A and B are
compulsory heirs entitled to a legitime. So, we have to collate the P40,000 and P60,000, so after all there is
an estate of P100,000. That would be the basis for determining the legitime of A and B. Their legitime is
one half. That’s P50,000. So, they’re entitled to a legitime of P25,000 each. The other P50,000, yan ang ating
tinatawag na free portion. A donation is considered inofficious if it exceeds the free portion. There are two
donations, 1975 and 1988. If the free portion is not sufficient to cover the two donations, preference is
given to the earlier donation. Why? Simple principle, priority in time is priority in right. So, in charging
or imputing these two donations against the free portion, uunahin natin yung P40,000 kase 1975 yun. So,
P40,000 kasya ba sa free portion? Yes, may sobra pang P10,000. We now go to the next donation of P60,000.
Obviously hindi na kakasya yan kase P10,000 nalang ang natitira. So, it is inofficious up to the extent of
P50,000, hence it must be reduced by P50,000. Anong gagawin dun sa P50,000? G must return to the estate
P50,000, yun ang ibibigay kay A and B, P25,000 each to satisfy their legitimes. Supposing that you are the
one whom the P800,000 debt is owed, can you run after these properties? The answer is NO. Why? You
can run after the donated properties of the donor if they were made in fraud of creditors. Pero sabi natin sa
problem, mayaman pa sya nung dinonate nya ito. Moreover, what’s the prescriptive period? 4 years lang yan,
e katagal tagal na nyan, 2005 na. So, the creditors cannot run after these properties. Collation is only for the
benefit of the compulsory heirs, done only to protect their legitimes. That is the thrust of Art.771 up to
773.

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PROPERTY

Lecture By Dean Navarro

CAVEAT: Co-ownership and Possession (Art.484 to 561) not included

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A little oxygen break at this point

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With regard to movable property, you have (1) Adjunction/Conjunction,

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Accession with Co-owners

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Rights of the Usufructuary

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Supposing the usufructuary introduces useful improvements, or improvements for mere

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Obligations of the Usufructuary

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How is usufruct Extinguished? You take note of the provisions of Art.603.

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Remember the various types or classifications of easements. An easement may be continuous or

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Rights and Obligations of Dominant and Servient Estates

Modes of Extinguishing Easement

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Other Legal Easements

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Voluntary Easements – you simply read these provisions.

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Public and Private Nuisance

Nuisance per se and per accidens

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Remedies against Nuisance

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Occupation is another mode of acquiring ownership. Remember, when it comes to occupation,

Donation is another mode of acquiring ownership to be discussed later on.

Intellectual Creation is another mode of acquiring ownership. Tradition or Delivery, as a

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According to Art.725, donation is an act of liberality whereby a person disposes gratuitously of a

Second, the Remuneratory or Compensatory donation. This is intended to remunerate or

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Persons who may Give or Receive a Donation

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Form for Valid Donations