Notes of Sir Torregosas discussion and some questions

When is there a usufruct? The Civil Code, Article 562 states:

Usufruct

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

Sir Torreg: It is the right to possess and to the fruits. USUFRUCT (no legal title) = OWNERSHIP NAKED OWNERSHIP

Does the extent of a usufructuarys rights include the right to alter or modify the thing? No. There is an obligation to preserve the thing held in usufruct EXCEPT when the title provides

otherwise. Sir Torreg: the word title in usufruct refers to any act which gives rise to the constitution of usufruct (i.e. contract, will, donation, etc.). Such title should comply with the formalities required by the law. It may provide or authorize the usufruct to alter the form/substance of the thing given in usufruct. What are the instances when a usufructuary alter or alienate the thing held in usufruct? (1) Agreement of the parties [prevails over the prohibition. This is found in the title] (2) When the property given in usufruct is a consumable Here, what is constituted is not the thing itself but the value of the thing (converted into a simple loan or mutuum and therefore ownership is transferred in favor of the usufructuary; and at the termination of the usufruct, there is the obligation to return the price or value of the property or a thing same in type and quality. (3) When the nature of the thing is such that it is for sale (merchandise for sale)

What are the characteristics of a usufruct: (1) It can only be created by an owner or his agent Lessee cannot constitute a usufruct

(2) It cannot be constituted in favor of the naked owner (3) It is always a real right (and thus, transmissible) It is attached to the property itself The usufructuary can transmit his right even without naked owners consent For the purpose of binding 3rd persons, it has to be registered. Exceptions to alienability of usufruct: Parental/legal usufruct, which is: Given in consideration of relationship and a parental usufruct is limited to the 1support of the child, and 2collective needs of the family. Thus, only voluntary usufruct may be alienated.

Usufruct granted in consideration of ones person; and Usufruct acquired thru a caucion juratoria (promise under oath) Here, the need of the usufructuary himself is the reason for the enjoyment.

The right of usufructuary may be subject to execution over the fruits of the property

(4) It is temporary in nature

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Natural person usufruct is terminated at the death of the usufructuary EXCEPT if there was a contrary agreement. Juridical person maximum of 50 years UNLESS juridical entity is sold beforehand

Usufruct

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Classification as to origin:

Usufruct

Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription.

(1) Voluntary Usufruct Created by will of the parties

(2) Legal Usufruct Created by law (i.e. parental usufruct)

Classification as to the number of persons enjoying the right:

Art. 564. Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible.

(1) Simple Usufruct (2) Multiple Usufruct Sir Torreg: Remember the following rules If the usufruct is by donation to many all the donees must be alive or at least already conceived, at the time of the perfection of the donation (refer to Art. 756) If the usufruct is by will or testamentary succession there must only be 2 successive usufructuaries and most be alive at the time of the testators death.

Classification as to Object(s) Involved: (1) Over rights Provided it must bit be purely personal or intransmissible in character

(2) Over things a.) Normal involves non-consumable things where form and substance are preserved b.) Abnormal can be either b.1 Consumable goods

Art. 574. Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return at the same quantity and quality, or pay their current price at the time the usufruct ceases.

b.2 Non-consumable, but gradually deteriorate

Art. 573. Whenever the usufruct includes things which, without being consumed, gradually deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their condition at that time; but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence.

b.3 Sterile animals treat these as a usufruct over consumable/fungible things

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Usufruct

Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey. xxxxxxxx PARAGRAPH 4: Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted on fungible things.

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What are the rights of a usufructuary? Over hidden treasure Usufructuary is considered as a stranger unless he is the finder himself (gets share)

Usufruct

Art. 566. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger

Over fruits
Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner. In the preceding cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary. The provisions of this article shall not prejudice the rights of third persons, acquired either at the beginning or at the termination of the usufruct.

Pending at the beginning of the usufruct Belong to usufructuary; with no necessity of refunding owner for expenses incurred; but if a possessor other than the owner has spent for the cultivation, planting, etc they should be reimbursed (according to Sir Torreg, even those in bad faith) Pending at the termination of usufruct Belong to the owner Thus, usufructuary cannot sell the fruits which are due to be harvested after the termination of the usufruct (sale of future crops is not binding upon the owner. usufructuary) Usufruct can be reimbursed, limited only to the value of the proceeds of the fruits If the usufructuary is prevented from gathering the fruits due to a fortuitous event/through the fault of the owner, he should be allowed to gather even after the termination of the usufruct. Remedy of buyer would be to go after the

Right to lease the thing itself General rule: ordinarily extinguished upon termination of the usufruct Exception: 1if owner allows lease to continue, or 2property are rural lands

Sir Torreg: Lease of the thing constituted by the owner to a third party before the constitution of a usufruct is not extinguished, but the usufructuary is entitled to the rent collected for the duration of the usufruct.
Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly inscribed or annotated in the Registry of Property shall not prejudice third persons.

Fabie v David (75 Phil 536) The usufructuarys right to select the tenants to the property prevails. Any dispossession should be made known to the usufruct, otherwise the naked owner may be held liable for damages.

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Right to introduce improvements

Usufruct

Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property.

Sir Torreg RE: useful improvements/improvements for mere luxury: No reimbursement; Usufructuary may remove if there will be no injury caused to the principal thing (This is not an obligation so the owner cannot compel the usufruct to remove the improvement) Removal may not be enforced against a third party unless registered as an adjunct to the capital thing. Here, a usufructuary has similar status as a tenant

Right to set-off value of improvements with damages caused to the property by the usufruct
Art. 580. The usufructuary may set off the improvements he may have made on the property against any damage to the same.

NOTES: If damage exceeds the value of the improvements, usufructuary is still liable for the difference; If the value of the improvements exceeds the damage, the difference does not go to the usufructuary, but accrues to naked owner except if there was a prior stipulation to entitle the usufructuary to a partial refund in cash.

Requisites (according to Paras) (1) Damage must have been caused by the usufructuary; and (2) The improvements must have augmented the value of the property

What are the rights of the naked owner of the property? At the beginning of the usufruct Demand inventory and the posting of security These are not sine qua non requirements but the failure to post security will entitle the owner to prevent the usufructs possession (owner here will be the administrator and the usufruct merely entitled to the fruits) If usufructuary fails to make inventory He may be prevented from taking possession over the property, Gives rise to the prima facie presumption that the properties were received in good condition NOTE: the eventual compliance of a usufructuary retroacts to the date when the usufruct was to take effect Instances when posting of security is not needed: (1) When no one will be injured/prejudiced; (2) When there is stipulation by the naked owner;

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(3) When the usufructuary is the donor of the property himself; (4) Parental usufruct (except when the parents contract a subsequent marriage)

Usufruct

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During the usufruct Alienate the property; provided that he will not alter its

Usufruct

form/substance and will not prejudice the usufruct If the usufruct was registered If the usufruct was not registered transferee should respect the usufruct; transferee should respect the usufruct

Art. 581. The owner of property the usufruct of which is held by another, may alienate it, but he cannot alter its form or substance, or do anything thereon which may be prejudicial to the usufructuary.

Obligation of a usufructuary to undertake ordinary repairs vs. extraordinary repairs

Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary. Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent. Art. 594. If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of the repairs.

Ordinary repairs Conditions: 1) required by normal/natural use; 2) needed for preservation; 3) must have occurred DURING the usufruct; and 4) must have happened with or without the fault of the usufructuary. If with fault usufructuary must pay indemnity for damages

Extraordinary repairs WHO SHOULD PAY Naked Owner W/N he was notified Naked Owner W/N he was notified REMARKS BY PARAS Law does not require naked owner to make the repairs and cannot be compelled to do so. Naked owner cannot be compelled to make the repairs but the usufructuary is allowed to make them, with the right to get the increase in value and the right of retention, provided that there was notification by usufructuary and failure to repair by naked owner.

CAUSE & TYPE OF REPAIRS 1) Caused by natural use but not needed for preservation 2) Caused by abnormal/ exceptional circumstances and needed for preservation (i.e. earthquake makes stairs unsafe)

3) Caused by abnormal/ exceptional circumstances but are not needed for preservation.

Naked Owner W/N he was notified

Usufruct cannot compel naked owner to make repairs, nor is usufruct allowed to make them even if the naked owner failed to make them.

Conditions before usufructuary is allowed to make extraordinary repairs: 1) There must be due notification to naked owner of urgency; 2) The naked owner failed to make the repairs; 3) The repair is needed for the preservation.

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Rights of usufruct who has made extraordinary repairs: a) Get increase in value or reimbursement of expenses (Arts. 594 & 612); b) Right of RETENTION until paid (Art. 612)

Usufruct

PARAS: reimbursement is to be made only at the END of the usufruct)

Art. 612. Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed. After the delivery has been made, the security or mortgage shall be cancelled.

Rules on bad use (note that this is not a ground for extinguishing a usufruct)
Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.

CAUSE & TYPE OF BAD USE 1) Bad use which does not cause considerable injury to the naked owner 2) Bad use which causes considerable injury to the naked owner (not necessarily to the thing) administration by himself

RULES Usufruct continues; naked owner cannot demand Usufruct continues; but the naked owner can DEMAND delivery to and administration by him, but he will be obliged to pay NET PROCEEDS to usufructuary. - note: naked owner cannot sell/alienate the right to usufruct

It is the Court who will determine W/N there is considerable injury to the naked owner. Also take note of Art. 590, Civil Code

Art. 590. A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him.

Meaning, the usufructuary is liable for the acts of the substitute (fault negligence, or even willful deceit). It is the usufructuary who answers to the naked owner.

Extinguishment of a usufruct:
Art. 603. Usufruct is extinguished: (1) By the death of the usufructuary, unless a contrary intention clearly appears; (2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; (3) By merger of the usufruct and ownership in the same person; (4) By renunciation of the usufructuary; (5) By the total loss of the thing in usufruct; (6) By the termination of the right of the person constituting the usufruct; (7) By prescription.

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Rule on Taxes

Usufruct

Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. Art. 597. The taxes which, during the usufruct, may be imposed directly on the capital, shall be at the expense of the owner. If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which may have been paid in that character; and, if the said sums have been advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct.

Taxes w/c pertain to the fruits Taxes w/c pertain to the capital

obligation of the usufructuary (Art. 596) obligation of the naked owner (Art. 597)

Only 2 instances when usufruct has right of reimbursement & retention: (1) taxes on capital advanced by the usufructuary; and (2) extraordinary repairs Rizal Mercado v.Hidalgo (67 Phil 608) Reimbursements should be made, not immediately after advancing, but at the TERMINATION of the usufruct, provided the advance had been made voluntarily.

Special Usufructs: (1) Usufruct over heads of cattle

Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey. If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune. Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct shall continue on the part saved. Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted on fungible things.

Rules (read Paras book pp. 609-610): There is an obligation to replace when 1.) some animals die from natural causes; or 2.) some animals are lost due to the rapacity of beasts of prey PARAS: the remains of the dead animals belong to the usufructuary and the lost should be replaced with the young produced thereof. There is no obligation to replace when 1.) there is a total loss of the animals because of some unexpected or unnatural loss (i.e. pestilence) or any other uncommon event, Provided that the usufructuary has no fault; or 2.) there is a partial loss (here, the usufruct continues on with the remainder with the same conditions as with previous number)

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(2) Usufruct over fruit-bearing trees and shrubs

Usufruct

Art. 575. The usufructuary of fruit-bearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants.

The usufructuary can use dead trunks and those cut off/uprooted by accident by must replace them with new plants.

Art. 576. If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible or it would be too burdensome to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land.

A) If it is too burdensome or impossible to replace the trees and shrubs Usufruct may use the trunks but should replace them (art. 575); Or he may leave the dead, fallen, or uprooted trunks at the owners disposal, and demand that the latter remove them or clear the land.

B) If it is slightly burdensome to replace them, the usufructuary MUST replace them and cannot demand clearance of the land by the owner.

Loss/Destruction of Property Rule on partial loss:

Check: Paras pages 631 634 & Lakas Atenist a page 75 regardi ng
Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part.

Rules on total loss [refer to Paras pp 629 631]: Total loss ends the usufruct (Art. 603); but note the following articles:

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Usufruct

Art. 607. If the usufruct is constituted on immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials. The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in such a case, if the owner should wish to construct another building, he shall have a right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials. Art. 608. If the usufructuary shares with the owner the insurance of the tenement given in usufruct, the former shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or shall receive the interest on the insurance indemnity if the owner does not wish to rebuild. Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article.

(A) Usufruct on BOTH building and land (but the building is destroyed in any manner whatsoever before the expiration of the period of the usufruct): 1) The usufruct on the building is ended, but the usufruct on the land continues; 2) The usufructuary is still entitled to the use of the land and the use of whatever materials of the house remain. 3) If the naked owner wants to rebuild but the usufruct refuses, it is the usufructuary who prevails for the remainder of the period.

(B) Usufruct on the building alone (but the building is destroyed before the termination of the period): 1) The usufruct on the building ends, but the usufructuary can still make use of whatever materials of the house remain; 2) The usufructuary is entitled to the use of the land; 3) But since there was not usufruct on the land before the loss, the naked owner has preferential right to its use [If the naked owner wants to rebuild, he has the right to occupy the land and make use of the materials, with the obligation to pay --during the remainder of the period of the usufruct interest on 1the materials and 2the land.]

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What is an easement/servitude?

Easement/servitude

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.

It is It
(2)

(1)

an encumbrance constituted on an immovable (or lots permanently attached to the soil);

refers to two immovables belonging to two different owners Dominant estate estate in whose favor the burden is imposed; Servient estate estate on whom the burden is imposed.

It

(3)

authorizes or gives another the limited right to use the portion affected by the burden Thus, ownership remains with the servient estate.
Art. 630. The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement.

Characteristics of an Easement: (1) Always a real right Attached to the property to which the burden is imposed Must be registered to bind 3rd parties, except legal easements Note: case of Villanueva v. Veloso Registration of the dominant estate under the Torrens system without the registration of the voluntary easements in its favor does not extinguish the easements; but registration of the servient estate without the registration of the easements burdening it extinguishes said voluntary easements (Santos v. Reyes) (2) Inherent to the estate to which it is attached An easement has no independent existence (3) Indivisible It cannot be alienated without the alienation of the tenement to which it is attached, thus a usufruct cannot be constituted on a right of easement.

Art. 618. Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him. If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way.

An easement remains intact, regardless of the status of the dominant and servient estates. Alienation of the estate does not extinguish the right of easement

(4) Permanent Once constituted, it continues to exist W/N it is exercised by the dominant estate Except when it is extinguished as provided for by law i.e. an easement for road right of way does not depend on the actual use of right of way except if sign is permanent

Peeps, well just discuss this part coz my notes did not sink in.

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Easement/servitude

TOLENTINOs view: While an easement of right of way is essentially apparent and discontinuous, such easement can be acquired by prescription when: 1) there is permanent existence of sign which is considered a continuing assertion of a dominant owner over the servient estate; 2) if the immovable can be acquired by prescription, the easement can be acquired as an accessory.

Classification of Easements: As to the recipient of the benefits

Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong.

(1) Real easement constituted in favor of a dominant estate and may be use for all purposes that will meet the needs of the dominant estate. (2) Personal estate constituted in favor of a specific person, community/group of persons even if there is no dominant estate. RULE:

Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

The rights and obligations of the dominant owner is defined by the title which constitutes the easement. If general whoever becomes the owner has the right to use If specific only those persons specified, and not successors;

in other words, the easement, if specific, should only be used in the purpose for which it was constituted unless use in a different purpose will not increase the burden of the servient estate.

Case of Valderrama v. North Negros Central (48 Phil 482)

As to its exercise

Another case states that you cannot discriminate against those specific individuals when easement was made in favor of the community.

Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent. Continuous easements are those, the use of which is or may be incessant, without the intervention of any act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Nonapparent easements are those which show no external indication of their existence.

(1) Continuous without human intervention (i.e. light & view) (2) Discontinuous depend on the acts of man (i.e. road right of way) Sir Torreg: All easements, for the purposes of establishment require human intervention, but not all easements require human intervention for the purposes of existence)

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As to object

Easement/servitude

Art. 616. Easements are also positive or negative. A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

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As to indication (1) Apparent (2) Nonapparent

Easement/servitude

As to Nature
Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.

(1) Legal (2) Voluntary

Modes of Acquiring Easements

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. Art. 622. Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. Art. 623. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment. Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

(1) By Title title means any juridical act or law sufficient to create the encumbrance/easement

(2) By Prescription Applies only to continuous and apparent easements (except that falling under Tolentinos view) In this case, you do not need to consider good faith-bad faith rules Only requirement: 10 continuous years and adverse possession For positive easement, the 10 years counted from the time easement was actually exercised (i.e. opening a window); For negative easement, the 10 years is counted from the time of notarial prohibition NOTARIAL PROHIBITION a written communication sent by the owner of the dominant estate to the owner of the servient estate, subscribed and sworn under oath and duly notarized.

The right to claim easement does not prescribe as long as there is a need for the easement

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(3) apparent sign

Easement/servitude

This is not a real easement because originally there was only one person involved; If conveyance is silent as to whether apparent sign/easement may be enjoyed by the buyer, it continues to exist until removed. May ripen into a real easement when (check next page) Situation Will ripen into real easement when 1) When apparent sign is not removed before alienation; or 2) Such sign was registered before sale (???) EXCEPT: 1) There is a stipulation to the contrary; 2) Apparent sign is removed before execution before conveyance

a) 2 or more properties previously belonged to 1 person and that person sold/transferred the property to 2 or more persons b) There is 1 estate which was previously owned by 1 person and portions of which were sold to 2 or more persons c) Property owned in common is partitioned by the coowners NOTE: These rules will not apply if
(a)

the property is sold to only 1 buyer; or

(b)

there were

2 owners at the start. In latter (b) where 2 owners at start apply rule on prescription Remedies on how to prove evidence of easement: 1) Deed of Acknowledgment by the owner of the servient estate 2) Court Decision The court only confirms the existence of easement, but is not a source of easement.

Modes of extinguishment of easements:

Art. 631. Easements are extinguished: (1) By merger in the same person of the ownership of the dominant and servient estates; (2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; (5) By the renunciation of the owner of the dominant estate; (6) By the redemption agreed upon between the owners of the dominant and servient estates.

Non-user must be voluntary on part of the owner of the dominant estate for 10 years and intermittent Impossibility of use there must be cause other than the fault of the dominant estate Renunciation has to be public and peaceful (Sir thinks this is the better view)

Right of Way (Arts. 649 657) By nature, it is a legal easement, but it can also be a voluntary one If legal easement the following conditions must be complied: (a) Property is surrounded by estates of others; (b) No adequate outlet to the a public highway [danger-convenience-cost]; (c) Must be payment of proper indemnity (Art. 655);

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(Art. 650);

Easement/servitude

(d) Established at the point least prejudicial to servient estate

(e) Isolation must not be due to the proprietors own acts (Art. 649); and (f) Demandable only by the owner or one with a real right (i.e. usufructuary).

If voluntary easement the conditions do not need to be present Conditions (re-stated): 1. Dominant estate must be isolation (no adequate outlet to public highway) TEST: Necessity of dominant owner, not convenience The width may be adjusted according to need The outlet does not have to be land-based The moment the necessity ceases, the compulsory easement is terminated. Does not apply if the easement is also a voluntary easement.

2. Continuous and apparent Susceptible to prescription VIEW 1: notarial prohibition makes what is not apparent, apparent. VIEW 2 (Tolentino): when a negative easement results from an apparent easement.

Light and View (Arts. 667 673)

Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters . The nonobservance of these distances does not give rise to prescription.

What if the distances prescribed for these openings are not observed?
Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen . Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired.

Non-compliance owner of other estate can ask for closure of the opening within 10years from the time the opening was made. ??? does the lapse of 10 years to ask for closure amount to prescription? TOLENTINO: may not amount to prescription (NOTE THIS)

Trees (Arts. 679 681) Make sure branches do not overextend (but the other party should ask the owner of the tree to have the branches cut or else he may be liable for malicious mischief) If the trees are fruit-bearing, you cannot remove the fruits for yourself; but if they fall you own them.

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What is a donation?

Donation

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.

2 Types of Donations: (1) Donations inter vivos Transfer of ownership is immediate Once the donees acceptance is made known to the donor (perfected), the donee becomes the absolute owner even if the donation is subject to a suspensive condition (2) Donations mortis causa Transfer of ownership shall take effect only upon the death of the donor

Donation in praesenti to be delivered in futuro

Art. 729. When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise.

The donation of property is postponed upon donors death Ownership is transferred when donees acceptance is communicated to the donor It is also considered donation inter vivos When simultaneous delivery is needed: only when there is an oral donation of a property less than PhP 5k
Art. 748. The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void.

Kinds of donation inter vivos: (A) 1. without strings attached (purely gratuitous) Simple 2. Made on account of the donees merits Remuneratory 3. Made on account of past services rendered Remuneratory

(B) with burden 1. less than the value of the property mixed donation 2. equal to the value of the property onerous Sir Torreg: If donation is onerous, it is not a donation and so apply the law on contracts i.e. gratuitous donation simply ignore illegal stipulation; but if

onerous donation with an illegal stipulation void

Art. 733. Donations with an onerous cause shall be governed by the rules on contracts and remuneratory donations by the provisions of the present Title as regards that portion which exceeds the value of the burden imposed.

The imposition of suspensive conditions do not negate the character of a donation inter vivos

Notes of Sir Torregosas discussion and some questions

Donation

Art. 730. The fixing of an event or the imposition of a suspensive condition, which may take place beyond the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos, unless a contrary intention appears.

The imposition of resolutory conditions may give a ground to terminate the donation inter vivos
Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee.

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Requisites:

Donation

Art. 748. The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.

Formality Immovable must be notarized and in writing (public instrument)

Personal property Less than 5k oral acceptance + simultaneous delivery OR in writing only 5k or more must be in writing

Acceptance In the same form and manner by which it was effected If acceptance in separate instrument, it must also have notification to the donor

Cause If legitimate no problem If for an illegitimate cause, there are 2 views: VIEW 1: donation is void VIEW 2: donation is void, but there can be no return of the thing because of the principle of in pari delicto

Capacity Must be present at the time the donation is perfected. Of the donor Should have the right to dispose of property Has the right to contract

Of the donee Should not be specifically disqualified by law

VOID DONATIONS (Art. 739) (1) Affair Those made between persons who were guilty of adultery or concubinage at the time of the donation; If during the affair donation is void;

Notes of Sir Torregosas discussion and some questions

If it terminates the affair donation is valid.

Donation

(2) Illicit Relationship Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Bribery Those made to a public officer or his wife, descedants and ascendants, by reason of his office.

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Object If donor donates all of his present property, he may do so as long as the legitime of his compulsory heirs are not disturbed.

Donation

Art. 750. The donations may comprehend all the present property of the donor, or part thereof , provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected. Art. 751. Donations cannot comprehend future property. By future property is understood anything which the donor cannot dispose of at the time of the donation. Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. Art. 760. Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: (1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; (BIRTH) (2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living; (REAPPEARANCE) (3) If the donor subsequently adopt a minor child. (ADOPTIION) Art. 761. In the cases referred to in the preceding article, the donation shall be revoked or reduced insofar as it exceeds the portion that may be freely disposed of by will, taking into account the whole estate of the donor at the time of the birth, appearance or adoption of a child.

Grounds for revocation/reduction of the donation: 1.) Ingratitude (Art. 765) Prescribes in: 1 year from donors knowledge Gen. Rule: action is intransmissible to donors heirs Exception: if the act resulted in the immediate death of the donor, when donor is incapacitated or when during the pendency of the action the donor dies. 2.) Birth-Adoption-Reappearance [BAR] (Art. 760-763) action prescribes 4 years from the BAR

3.) Violation of condition (Art. 764) Prescribes in: 4 years from non-compliance of the burden imposed on donee

NOTE: rules on prescription and duty of donee to return fruits If BAR or Ingratitude return fruits accruing from the time the action is filed If Non-compliance of conditions imposed return the fruits received after failure to fulfill the condition(s) In case of money donation fruits shall mean the legal rate of interest

Other terms mentioned by Sir: Collation If the donee happens to be a compulsory heir, he must bring back (collate) the value of the property donated (Art. 1061) Preference given to earlier donations (Art. 773)