PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407

Nature of benefit to dominant estate

CHAPTER 1 – EASEMENTS IN GENERAL
Section 1 – Different kinds of easements
Art 613. EASEMENT OR SERVITUDE
Benefit need not be very great. It is sufficient that there
is a determinate use or utility in favor of a dominant
estate over an estate belonging to another. What’s
important is, it exists and can be exercised.

EASEMENT OR SERVITUDE EASEMENT DISTINGUISHED FROM LEASE

It is an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a
different owner. Easement Lease

 Dominant estate – the estate benefited by the

easement (in whose favor the easement was Real right whether Real right only when
established) registered or registered
 Servient estate – the estate which is burdened not
by the easement

It is a real right constituted on another’s property, by

Imposed only on real Involves either real or
virtue of which the owner of the same has to abstain
property personal
from doing or to allow somebody else to do something
on his property for the benefit of another or a
community.
There is limited right to There is a limited right to
TN: the use of real property of both the possession and
1. Easement can exist only when the servient and another but use of another’s property
dominant estate belong to different owners without the right of
2. Both estates cannot belong to the same person possession

CHARACTERISTICS OF EASEMENT
EASEMENT DISTINGUISHED FROM USUFRUCT

1. It is a real right but will affect third persons only

when duly registered
Easement Usufruct
2. It is enjoyed over another person’s immovable,
never on one’s own property
3. It is inseparable from the estate which it is
Imposed on real property Either real or personal
attached, hence, cannot be alienated independently
property
of the estate
4. It is indivisible for it is not affected by the division
Limited to a particular or
of the estate between two or more persons
specific use of the Includes all uses and the
TN: An acknowledgement of the easement is an servient estate fruits of the property
admission that the property belongs to another. (ex. right of way)

Where can easements be imposed on?

Only on immovable properties. Immovable in its common Non-possessory right Involves a right of
sense – those which possession in an
over an immovable
re so by their nature; incapable of being moved. (ex. immovable or movable
Land, building)

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PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407

estate, and consequently a group of persons

Not extinguished by the Extinguished by the for its owner
death of the dominant death of the Requires two immovables Does not require two
owner usufructuary immovables
Inures to the benefit of Servitude is for the
whoever owns the benefit alone of the
Both are real rights whether registered or not and are dominant estate persons enumerated
transmissible
Ex. Right of way granted
--------- to certain persons and
Art 614. CLASSIFICATIONS OF EASEMENT their “family, friends,
drivers, servants and
jeeps”
WHERE MAY EASEMENT BE ESTABLISHED
PERSONAL EASEMENTS MAY BE:
1. For the benefit of a particular estate
2. For the benefit of one or more persons
Public – if it is vested in the public at large or in some
3. For the benefit of a community
class of indeterminate individuals
CLASSIFICATIONS OF EASEMENT
Examples:
1. Right of the public to a highway over a land of
1. As to recipient of benefits
private ownership
a) Real – easement is in favor of another
2. Right to navigate a river of which the bed belongs
immovable
to some private person
b) Personal – easement is in favor of a
community or of one or more persons. It Private – if it is vested in a determinate individual or
may be public or private certain persons

2. As to its source Examples: Right of way, light or support vested in the

a) Voluntary – established by the agreement owner of one parcel of land over an adjoining parcel of
of the parties land.
b) Legal or compulsory – imposed by law
c) Mixed – created partly by agreement and North Negros Sugar v. Hidalgo
partly by law Plaintiff constructed a road on its own land and allowed
free use to the public but charged toll fees in case of
3. As to manner of its exercise vehicles. Later, he tried to exclude defendant from using
a) Continuous his land. SC held that it was an easement of way
b) Discontinuous voluntarily constituted in favor of a community. Having
been devoted by plaintiff to the use of the public in
4. As to whether or not is existence is indicated general upon paying the proper passage fees for
a) Apparent vehicles, the road is charged with public interest and
b) Non-apparent while so devoted, plaintiff may not establish
discriminatory exceptions against any private persons.
5. As to duty of servient owner
a) Positive Art 615. DIS/CONTINUOUS AND NON/APPARENT
b) Negative EASEMENTS
REAL AND PERSONAL SERVITUDES
CONTINUOUS AND DISCONTINUOUS EASEMENTS
Predial servitude Personal servitude Continuous easements – those whose use is or may be
Servitude established for Servitude established for incessant, without the intervention of any act of man.
the benefit of a particular the benefit of a person or

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PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
 For an easement to be continuous, it is not
necessary that the use be incessant. It is sufficient
that the use may be so.
Examples:
1. Right to support a beam on another’s wall
which really exists continuously
2. Right of aqueduct which may be used only on
certain days depending on the need for water
but which is continuous since its use does not
depend upon the intervention of man
Discontinuous easements – those which are used at
intervals and depend upon the acts of man.
Example: right of way (used at intervals because it is
physically impossible that man shall continually pass
over the way)
TN: The easement itself, whether continuous or
discontinuous exists continuously, whether it is being
used or not, but its exercise may be continuous or
discontinuous, or there may be no exercise at all.
APPARENT AND NON-APPARENT EASEMENTS
Apparent easements – those which are made known and
are continually kept in view by external signs that reveal
the use and enjoyment of the same.
 It is not necessary that its sign be seen. It is
sufficient if it may be seen or known on inspection.
Non-apparent easements – those which show no
external indication of their existence. (e.g. easement of
lateral and subjacent support)
TN: Aqueducts, whether exercised through an
underground channel, is considered apparent by express
provision of Art 646.
Art 616. POSITIVE AND NEGATIVE EASEMENTS
POSITIVE AND NEGATIVE EASEMENTS
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Positive easement – one which imposes upon the owner
of the servient estate the obligation of allowing
something to be done or of doing it himself.
 Example: Right of way which imposes upon the
owner of the servient estate the duty to allow the
use of said way.
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.
 Example: Easement of light and view (owner of the
servient estate is prohibited from obstructing the
passage of light)
Q. When is the easement positive or negative if a
window is made on a wall?
 Positive easement – If the window is made on
another’s wall (wall of servient estate) or on a party
wall because the owner of the wall allows the
servitude to burden his wall.
 Negative easement –If the window is through one’s
own wall (wall of dominant estate) which does not
extend over another’s property
(servient estate)
Art 617. INSEPARABILITY OF EASEMENT
QUALITY OF INHERENCE OR INSEPARABILITY
Easements are inseparable from the estate to which they
actively or passively belong, being accessory things
whose very existence depends upon the principal thing.
Effect: They cannot be alienated or mortgaged
independently of the estate
Q. Can an easement be the object of a usufruct?
No, because it has no existence independent of the
immovable to which it attaches.
Q. Does an easement have an independent juridical
existence?
Yes, while it is an accessory thing, it has an independent
juridical existence. It is considered by law as an
immovable property. But as a mere accessory, it cannot
be alienated from the immovable.
Q. What is the effect if the dominant estate is alienated?
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Such alienation carries with it also the easements
established in its favor even if they are not annotated as
an encumbrance on the COT.
Q. When is easement extinguished?
When the servient estate registers the property under
the Torrens system without the easement being
annotated on the corresponding certificate of title.
Hence, a purchaser of registered land holds his COT free
from all encumbrances.
Q. In what instance can the transferee be bound by such
encumbrance despite the absence of annotation on the
COT?
When he has actual knowledge of the existence of the
easement. Actual notice of knowledge is as binding as
registration.
Art 618. INDIVISIBILITY OF EASEMENT
QUALITY OF INDIVISIBILITY
Easements are indivisible. A partition between two or
more persons of either the servient or dominant estate
does not affect the existence of the servitude which
continues in its entirety.
Q. What is the effect when the servient estate is divided?
Each new owner must bear the easement, but only with
respect to the part corresponding to him.
Q. What is the effect when the dominant estate is
divided? Each owner can exercise the whole
easement over each of the servient estates, subject
to the condition that:
1. The place of easement shall not be changed
2. The easement shall not be more burdensome
TN: The easement is not considered made more
burdensome by the mere increase in the owners of the
dominant estates.
Art 619. LEGAL AND VOLUNTARY EASEMENTS
LEGAL AND VOLUTARY EASEMENTS
1. Legal easement – established by law
2. Voluntary easement – established by will of the
owners
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Q. Can the court constitute an easement where none
existed?
No. They can only declare its existence if in reality it
exists by law or by will of the owners. Hence, there are
no judicial easements.
Q. How can voluntary easements be extinguished?
1. By mutual agreement of the parties
2. By renunciation of the owner of the dominant
estate
TN: They must be recorded in the Registry of Property in
order to prejudice third persons.
Section 2 – Modes of acquiring easements
MODES OF ACQUIRING EASEMENTS
MODES OF ACQUIRING EASEMENTS
1. By title – all easements
a.Continuous and apparent
b.Continuous and non-apparent
c. Discontinuous, whether apparent or non-
apparent
2. By prescription of 10 years
a.Continuous and apparent
3. By deed of recognition
4. By final judgment
5. By apparent sign established by the owner of two
adjoining estates
Art 620. CONTINUOUS AND APPARENT EASEMENTS
CONTITNUOUS AND APPARENT EASEMENTS
Q. How are continuous and apparent easements
acquired?
Continuous and apparent easements are acquired either
by title or by prescription of 10 years.
TN: Only C & A easements may be acquired either by
title or prescription. The others may be acquired by any
of the modes, but not by prescription.
Q. What is meant by title?
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
The juridical act which gives birth to the easement. (ex.
law, donation, contract, will of the testator)
Q. What is the period of prescription?
10 years, regardless of the good faith or bad faith of the
possessor and whether nor not he has just title. The only
requirement is adverse possession or exercise of the
easement for 10 years.
Art 621. COMPUTATION OF THE PRESCRIPTIVE PERIOD
COMPUTATION PRESCRIPTIVE PERIOD FOR C & A
EASEMENTS
TN: Continuous and apparent easements may be either
positive or negative.
 Positive continuous and apparent easements
10 years from the day when the owner of the
dominant estate began to exercise it. (e.g. from the
day a window was built in a party wall)
 Negative continuous and apparent easements
10 years from the day a notarial prohibition was made
on the servient estate
Q. Non-apparent easements may not be acquired by
prescription and negative easements are essentially non-
apparent. Why then does Art 621 provide the
prescriptive period for negative easements?
Because of the notarial prohibition. This notarial act is
equivalent to notice, making the easement apparent.
Hence, prescriptible.
COMPUTATION FOR EASEMENT OF LIGHT AND VIEW
TN: Easement of light and view may be positive and
negative, depending on the manner of its exercise.
 Positive easement of light and view (if made
through a party wall or on one’s own wall which
extends over the neighboring estate – positive
because the owner of the latter estate who has a
right to close it up allows an encumbrance on his
property)
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 Period of prescription shall be counted from
the time of the opening of the window.
 Negative easement of light and view (if made on
one’s own wall and the wall does not extend over
the property of another – negative because the
owner is merely exercising his inherent right of
dominion and not of an easement. The servient
owner cannot close it up, otherwise he will be liable
for trespass)
Art 623. DEED OF RECOGNITION OR FINAL JUDGMENT
 Period of prescription is counted from the time
the owner makes the notarial prohibition
required upon the owner of the adjoining land
Art 622. CONTINUOUS NON-APPARENT AND
DISCONTINUOUS EASEMENTS
CONTINUOUS NON-APPARENT AND DISCONTINUOUS
EASEMENTS
Q. Which easements may be acquired only by virtue of a
title?
1. Continuous non-apparent easements
2. Discontinuous easements, whether apparent or
not
Q. What are the two important requisites required by law
for prescription?
1. Possession must be public
2. Continuous
TN: That is why only continuous and apparent
easements may be acquired by prescription.
Ronquillo v. Roco
Facts: Plaintiff alleges uninterrupted use of a
passageway which traverses the land of defendant in
going to a street and market place from his house for 20
years. Later, defendant constructed a chapel in the
middle of said passageway and closed it by fencing it
with barbed wire. Can an easement of right of way be
acquired by prescription?
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Held: No. The easement of right of way is discontinuous
and may be acquired only by virtue of a title.
ACQUISITION OF EASEMENT OF RIGHT OF WAY BY
PRESCRIPTION
Q. May easement of right of way which is said to be
discontinuous be acquired through prescription?
Yes. The Supreme Court in two cases held that
easement of the right of way may be acquired by
prescription. The uninterrupted and continuous
enjoyment of a right of way necessary to constitute
adverse possession does not require the use thereof
every day for the statutory period, but simply the
exercise of the right more or less frequently according to
the nature of the use.
DEED OF RECOGNITION OR FINAL
JUDGMENT Applies to easements
mentioned in Art 622.
1. Continuous non-apparent easements
2. Discontinuous easements, whether apparent or
not
TN: It presupposes that there is a title for the easement
but there is no document or proof showing its origin.
Q. May the absence of document showing the origin of
easement be cured? Yes. The owner of the servient
estate may voluntarily execute a deed of recognition
acknowledging the existence of the easement.
Q. What if the servient owner refuses or denies the
existence of the easement?
The court may declare such existence, upon sufficient
proof.
Art 624. ALIENATION BY SAME OWNER OF TWO
ESTATES WITH SIGN OF EXISTENCE OF
EASEMENT
Q. What does this provision contemplate?
A situation where two estates between which there
exists an apparent sign (e.g. window, road) of an
easement, belong to the same owner.
TN: Technically, there is really no easement since there
is but one owner of both estates.
Q. What is the rule in case of alienation of the estates?
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If the owner alienates either or both the estates,
resulting to ownership thereof being divided – the
easement shall continue, unless:
 A contrary stipulation has been made in the title or
conveyance
 The sign is removed before the execution of the
deed
Q. What is the effect of the existence of an apparent
sign of easement? It is equivalent to title, if no objection
has been made by the servient owner because an
implied contract that the easement should be constituted
is deemed to exist between the new owners.
Gargantos v. Tan Yanon
The dominant owner can oppose the owner of the
servient estate from doing things which would be
inconsistent with his obligation to respect the easement.
(e.g. closing a passageway, constructing a building
which obstructs light and view)
Q. Does this provision apply in cases of division of a
common property?
Yes, for it has the same effect as an alienation.
Q. When is this provision not applicable?
When the two estates or portions of the same estate
remain or continue to be in the same owner after
alienation or partition.
Art 625. RIGHTS GRANTED BY EASEMENT
RIGHTS GRANTED BY EASEMENT
All easements carry with them all the rights necessary
for their use and exercise.
Example:
The easement of drawing water carries with it the
obligation on the part of the
servient owner to give passage to the place where the
water is to be taken
Q. May the dominant owner make works on the
easement?
Yes, the dominant owner may make on the servient
estate any works necessary for the use and preservation
of the servitude, at his own expense.
Art 626. WHAT THE DOMINANT OWNER CANNOT DO
Q. What can the dominant owner not do?
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
1. Dominant owner cannot use the easement except
for the benefit of the immovable originally
contemplated
Ex. If estate X owned by O has an easement over
estate Y, O cannot use the easement as owner of
his other estates.
2. He cannot exercise the easement in any other
manner than that previously established.
Ex. One who is entitled to transport his
sugarcanes over a railway in 10 wagons a day,
cannot also transport the sugarcane of his friends
and use 40 wagons daily as it makes the use
more burdensome.
Section 3 – Rights and Obligations of the Owners of the
Dominant and Servient Estates
GENERAL RIGHTS AND OBLIGATIONS OF THE PARTIES
RIGHTS AND OBLIGATIONS OF THE DOMINANT OWNER
Q. What are the rights of the dominant owner?
1. To exercise all the rights necessary for the use
of the easement
2. To make on the servient estate all works
necessary for the use and preservation of the
servitude
3. To renounce the easement if he desires to
exempt himself from the contribution to
necessary expenses
4. To ask for mandatory injunction to prevent
impairment of his use of the easement
Q. What are the obligations of the dominant owner?
1. He can only exercise rights necessary for the use
of the easement
2. He cannot use the easement except for the
benefit of the immovable originally contemplated
3. He cannot excuse the easement in any other
manner than that previously established
4. He cannot make any works or construct
anything which is not necessary for the use and
preservation of the servitude
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5. He cannot alter the easement or render it more
burdensome
6. He shall notify the servient owner of works
necessary for the use and preservation of the
servitude
7. He must choose the most convenient time and
manner in making the necessary works as to
cause the least inconvenience to the servient
owner
8. He must contribute to the necessary expenses if
there are several dominant estates in proportion
to the benefits derived from the
works
RIGHTS AND OBLIGATIONS OF THE SERVIENT OWNER
Q. What are the rights of the servient owner?
1. To retain ownership of the portion of the estate
on which the easement is established
2. To make use of the easement unless there is an
agreement to the contrary
3. To change the place or manner of the use of the
easement, provided it be equally convenient
Q. What are the obligations of the servient owner?
1. He cannot impair the use of the easement
2. He must contribute to the necessary expenses in
case he uses the easement, unless there is an
agreement to the contrary
Art 627-628. RIGHT OF THE DOMINANT OWNER TO
MAKE WORKS
Q. What are the conditions on the right of the dominant
owner to make necessary works?
1. The works shall be necessary for the use and
preservation of the easement
2. The works shall be at his expense
3. They do not alter or render the easement more
burdensome
4. He must notify the servient owner before
making the works
5. They shall be done at the most convenient time
and manner so as to cause the least
convenience to the servient owner
Q. What is the rule should there be several dominant
estates? The owners of all of them shall be obliged to
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
contribute to the expenses, in proportion to the benefit
which each may derive from the work. The benefits shall
be presumed equal in the absence of any agreement.
TN: An owner may exempt himself from contributing to
the expenses by renouncing the easement in favor of
others.
Art 629. OBLIGATION OF SERVIENT OWNER NOT TO
IMPAIR SERVITUDE
OBLIGATION OF SERVIENT OWNER NOT TO IMPAIR
SERVITUDE Owner of the servient estate cannot impair
in any manner the use of the easement. He must abstain
from constructing works or performing any act which will
impair the easement.
Q. What remedy is available to the dominant owner in
case the servient owner impairs the use of the
easement?
A writ of injunction.
RIGHT OF SERVIENT OWNER TO CHANGE PLACE OR
MANNER OR EASEMENT While he cannot impair the use
of the easement, the servient owner can change the
place or manner of the use of the easement, at his
expense, provided the following requisites are met:
1. The place or manner has become very
inconvenient to him or prevents him from
making important works thereon
2. He offers another place or manner equally
convenient
3. No injury is caused by the change to the
dominant owner
RIGHT OF SERVIENT OWNER TO USE EASEMENT
Q. Can the servient owner use the easement?
Yes, because he retains ownership of the portion on
which the easement is established. He may use the
easement, provided he does not impair the rights of the
dominant owner.
Section 4 – Modes of Extinguishment of
Easements
Art 631. MODES OF EXTINGUISHMENT OF EASEMENTS
MODES OF EXTINGUISHMENT OF EASEMENTS
1. Merger
2. Non-user for 10 years
3. Impossibility of use
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4. Expiration of the term or fulfillment of resolutory
condition
5. Renunciation
6. Redemption
7. Other causes
Merger
 Merger in the same person of the ownership of the
dominant and servient estates
 Merger must be absolute and complete in one and
the same person
 Where merger is just temporary as in the case of a
sale a retro – servitude is only suspended
 Ex. Dominant owner buys the entire servient estate
Non-user for 10 years
Applicable only to easements that have been in use and
later abandoned.
 Discontinuous easements (ex. Right of way) – 10
years from the day it ceased to be used
 Continuous easements (ex. Natural drainage) – 10
years from the day on which an act contrary to the
same took place (e.g. construction of a dam which
blocks natural drainage)
Take note:
 Non-use must be voluntary on the part of the
dominant owner and not due to fortuitous event
 Basis of non-user is presumptive renunciation.
Hence, proof of non-user must be indubitable
especially where the easement is perpetual in
character because of its annotation in the Torrens
title.
 The use by a co-owner of the dominant estate
benefits all the other coowners and prevents
prescription as to them
Impossibility of use
 When the condition of either or both the estates
which makes impossible the use of the easement is
irreparable
 Impossibility must be beyond repair
By expiration of term or fulfillment of resolutory
condition
By renunciation
 Waiver must be specific, clear and express
By redemption
 Redemption must be by virtue of an agreement
between the owners of the dominant and servient
estates under which the servitude would be
extinguished.
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Other causes
 Annulment or rescission of the title constituting the
easement
 Abandonment of the servient estate
 Termination of the right of the grantor
 Expropriation of the servient estate
 Registration of the servient estate under the Torrens
system without the easement being annotated
PRESCRIPTION OF FORM OR MANNER OF USING THE
EASEMENT
The form or manner of using the easement may
prescribe as the easement itself, and in the same way
Q. Is the mode of using the easement different from the
easement itself?
Yes, but both may be lost by prescription.
Q. How is the period of prescription as to the mode
counted?
In the same way as that prescribed for the easement
itself.
TN: But there are some legal easements which do not
prescribe but the mode of using easement may be lost
or acquired by prescription.
Example: One authorized to open 3 windows opens 4,
his continued use of 4 windows gives him the right to
use the form after the lapse of the necessary
prescriptive period. If he opens only 2, he loses the right
to open the 3rd window after the expiration of the
required period.
WHERE DOMINANT ESTATE OWNED IN COMMON
The use of the easement by any of the co-owners
prevents prescription with respect to others. Use of one
is deemed to be used by each and all the coowners.
CHAPTER 2 – LEGAL EASEMENTS
Section 1 – General Provisions
Art 634. LEGAL EASEMENT
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LEGAL EASEMENT DEFINED
Easements imposed or mandated by law and which have
for their object either public use or the interest of private
persons, and thereby become a continuing property
right.
KINDS OF LEGAL EASEMENTS
1. Public legal easements – those for public or
communal use
2. Private legal easements – those for the interest of
private persons or for private use
 Waters
 Right of way
 Party wall
 Light and view
 Drainage
 Intermediate distances
 Against nuisance
 Lateral and subjacent support
Q. What laws govern public legal easements?
Governed primarily by the special laws and regulations
relating thereto and by the Civil Code (Arts 634-687)
Q. What laws govern private legal easements?
 Primarily – Agreement of the parties
 Absence of agreement – provisions of general or
local laws and ordinances
 In default – Arts 634 – 687
Section 2 – Easements Relating to Waters
LIST OF LEGAL EASEMENTS RELATING TO WATERS
Q. What are the legal easements relating to waters?
1. Natural drainage
2. Drainage of buildings
3. Easement on riparian banks for navigation,
floatage, fishing, salvage and towpath
4. Easement of a dam
5. Easement for drawing water or for watering
animals
6. Easement of aqueduct
7. Easement for the construction of a stop lock or
sluice gate
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Art 632-633. PRESCRIPTION Art 637. NATURAL DRAINAGE OF LANDS

a) Navigation
b) Floatage
NATURAL DRAINAGE OF LANDS c)Fishing
Lower estates are obliged to receive the waters which d) Salvage
naturally descend form the higher estates. The owner of e) With respect to estate adjourning banks
the lower estate cannot construct works which will of navigable rivers –
impede this easement and neither can the owner of the easement of towpath
higher estate make works which will increase the
burden. 2. As to payment of proper indemnity
 This is a continuous easement because the water  If land is of public ownership – no indemnity
flows due to gravity and not dependent upon the  If of private ownership – proper indemnity
acts of man – easement may be extinguished by shall first be paid before it may be occupied.
non-user for 10 years
3. As to width of the zone subject of the easement –
Example: Dike was constructed by servient owner. 3 meters throughout the entire length of the bank
The action to destroy the dike is barred if brought along its margin.
only after 10 years.

Q. What is the duty of the servient owner (lower estate)?
He cannot construct works which will impede this
easement (e.g. walls, ditches, fences or dams which
block the natural flow of the water)
But he may construct works to regulate the flow of
waters and prevent damage to himself but those which
will impede the easement.
Art 639. EASEMENT OF A DAM
EASEMENT OF ABUTMNT OR BUTTRESS OF A DAM
A person who needs to build a dam to divert or take
water from a river or brook but is not the owner of the
banks which must support the dam – may be allowed
the easement of buttress of a dam.

Q. What is the duty of the dominant owner (higher Take note:

estate)? 1. He must seek the permission of the owner. In
He cannot make works which will increase the burden. case he refuses, he must secure authority from
(e.g. waters are the result of artificial development the proper administrative agency
caused by the dominant owner)

Otherwise, servient owner shall be entitled to

compensation for his loss or damage. (E.g. owner of
piggery farm is liable for damages for allowing the waste
water containing g manure to flood his neighbor’s
property)

But he may cultivate his land or construct works to

regulate the descent of the waters to prevent erosion to
his land.

Art 638. PUBLIC EASEMENTS ON BANKS OF RIVER

PUBLIC EASEMENTS ON BANKS OF RIVER

Q. What are the rules?

1. Banks of rivers and streams, whether of public or
private ownership – subject to easement of public
use for:

10 | U N I V E R S I T Y O F S A N C A R L O S
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
CHAPTER 1 – DONATION
Chapter 1 – Nature of Donations
Art 725. CONCEPT OF DONATION
DONATION
An act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who
accepts it.
 CALLED ORINARY OR REAL DONATION
 Different from donations mortis causa,
condonation or remission of debt, or donations
propter nuptias
Q. What is the nature of donation?
1. Donation as a contract – It is a contract with all
the essential requisites of a contract. (falls under
contracts of pure beneficence,
the consideration being the mere liberality of the
benefactor)
2. Donation as a mode of acquiring ownership –
donation results in the effective transfer of title
over the property from the donor to the donee
and is perfected from the moment the donor is
made aware of the acceptance by the donee.
Q. What is the effect of donation?
To reduce the patrimony or asset of the donor and to
increase that of the donee.
REQUISITES OF DONATION
1. The donor must have capacity to make the
donation of a thing or right
2. He must have the intent to make the donation out
of liberality to benefit the donee
3. There must be delivery, actual or constructive, of
the thing donated
4. The donee must accept or consent to the donation
Q. What may be the subject matter of a donation?
It may be a thing or right.
Q. Is the gratuitous act enough to constitute donation?
11 | U N I V E R S I T Y O F S A N C A R L O S
No, there must be an intent to benefit the donee. Hence,
a commodatum is gratuitous but it is not a donation.
Q. Is a quitclaim a donation?
No, because the person who executed the same merely
acknowledged the ownership and better right of another
over a property.
Q. Why is the acceptance of the donee required?
Because no one can be obliged to receive a benefit
against his will. This shows the law’s respect for
individual will.
Q. May there be a donation in favor of an entity yet
inexistent at the time it is made?
No, for there is no donee to accept it.
Jutic v. Court of Appeals
X executed an affidavit where he stated that “it is my
desire that in case I will die, I will assign all my rights
over my properties to my brother, and he shall succeed
me in case of my death”. Does the affidavit partake of a
donation? NO. It is a mere declaration of an intention
and desire. There was no intention to transfer ownership
at the time of the instrument’s execution.
Art 726. KINDS OF DONATION
KINDS OF DONATION
1. As to taking effect
A. Inter vivos – takes effect during the lifetime of
the donor
B. Mortis causa – takes effect upon the death of
the donor
C. Propter nuptias – made by reason of marriage
and before its celebration
2. As to consideration
A. Pure or simple – the cause is the pure
liberality of the donor in consideration of the
donee’s merits
B. Remuneratory or compensatory – that given
out of gratitude on account of the services
rendered by the donee to the donor, provided
they do not constitute a demandable debt
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
C. Modal – that which imposes upon the donee a
burden less than the value of the gift (e.g.
services to be performed in the future)
D. Onerous – value of which is considered the
equivalent of the consideration for which it is
given or that made for a valuable
consideration
3. As to effectivity or extinguishment
A. Pure – not subject to any condition or period
B. Conditional – that which is subject to a
condition
C. With a term – that which is subject to a period
REMUNERATORY DONATIONS
The motivating cause is the gratitude, acknowledgment
of favor, a desire to repay for past services rendered by
the donee to the donor.
TN: Hence, a donation given for future services cannot
be remuneratory.
Examples:
1. Donation made to one who saved the donor’s
life or his properties
2. Donation to a lawyer who renounced his fees for
services rendered
3. Pension given by the Government in recognition
of meritorious services
MODAL DONATIONS
A burden (which is necessarily future) less than the
value of the gift is imposed upon the donee. If burden is
equivalent, the donation is an onerous one.
Examples:
1. The donee “defray the expenses of the
subsistence and burial” of the donor and “if
anything should remain from the price of the
land, the surplus of the said expenses is granted
to him by me”
2. A donation of a parcel of land to a municipal
corporation to be used exclusively for some
specified public purpose
DONATIONS WITH MIXED FEATURES
Q. What is the nature of a modal donation?
It has a dual nature. It is partly onerous and party
simple.
12 | U N I V E R S I T Y O F S A N C A R L O S
 Onerous –The portion equivalent to the burden is
onerous burden (governed by the rules on
obligations and contracts)
 Simple – The portion exceeding the value of the
burden (governed by the rules on donation)
Example:
X donates to Y a parcel of land worth 300k but Y has to
have another parcel of land worth 100k. The transaction
is onerous as to the 100k which must be in the form of a
contract, and simple as to the 200k, which must follow
the form of donation.
Art 727. EFFECT OF ILLEGAL OR IMPOSSIBLE
CONDITIONS
EFFECT OF ILLEGAL OR IMPOSSIBLE CONDITIONS
Q. When is there an illegal condition?
When they are contrary to law, morals, good customs,
public order, etc.
Q. When is there an impossible condition?
When in the nature of things, cannot exist and cannot be
done.
Q. What is the effect if the donation has illegal or
impossible conditions?
They would be deemed not imposed and the donation
will be considered as simple. The condition is merely an
accessory clause and its nullity should not affect the
validity of the donation itself, unless it clearly appears
that the intention of the donor is that the donation shall
not take effect without the donation.
Q. When is the donation rendered void?
If the donation is onerous (or modal, as to its onerous
portion), the illegal or impossible condition will render
the donation void.
Example:
X donates a parcel of land worth 50k to Y, and he
imposes a burden valued at 10k and an impossible
condition. The gratuitous portion of 40k will be governed
by the law on donation, while the 10k onerous portion
by the law on obligations and contracts.
 Since the impossible condition is disregarded as
to the gratuitous portion, the 40k donation is
valid.
 Since the impossible condition annuls the
obligation itself, the transmission of the onerous
portion of 10k is invalid.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407

DONATIONS IN PRAESENTI
Donations which take effect during the lifetime of the
donor but the property shall be delivered after the
D Arts 728-729. DONATIONS INTER VIVOS AND donor’s death. Such donations are still considered inter
MORTIS CAUSA vivos although the property is not delivered at once.

Q. To whom shall the fruits of the property belong?

DONATIONS INTER VIVOS AND MORTIS CAUSA The fruits shall belong to the donee, from the time of
acceptance, unless provided by the donor.

Donations inter vivos Donations mortis causa Example: X donates to Y a parcel of land to be delivered
upon X’s death. Y becomes owner upon his acceptance
Takes effect during the Takes effect upon the of the donation, with the right to receive the fruits from
lifetime of the donor, death of the donor the time of acceptance, and to alienate the property.
independently of his testator
death Laureta v. Mata
Made out of the donor’s Made in contemplation of “I also declare that it is the condition of the donation
pure generosity his death without the that the donee cannot take possession of the properties
intention to lose the thing donated before the death of the donor” This is donation
in case of survival in praesenti and conveyed title to the properties subject
Valid even if the donor Void should the donor only to the life estate of the donor.
should survive the donee survive the donee
Concepcion v. Concepcion
Must follow the formalities Must follow the formalities
Donation was made in consideration of the services
of donations for the validity of a will rendered by the donee to the donor and of the donor’s
Must be accepted by the Can only be accepted affection for the donee; that donor had reserved what
donee during his lifetime after the donor’s death was necessary for his maintenance and that the
Cannot be revoked except Always revocable at any donation would take effect only after the donor’s death.
for grounds provided for time before the donor’s This is donation inter vivos because the stipulation that
by law death the donation would take effect only after the donor’s
Right to dispose the Right is retained by the death simply meant that the possession and enjoyment
property is completely donor while he is still alive of the fruits of the properties donated should take effect
conveyed to the donee only after the donor’s death and not before.
Subject to donor’s tax Subject to estate tax
Sicad v. Court of Appeals
Q. Is the designation given to donations conclusive? “All rents, fruits and proceeds of the donated properties
No. Whether a donation is inter vivos or mortis causa shall remain for the exclusive benefit and disposal of the
depends upon the nature of the disposition made as donor, during her lifetime, and that without the
reflected from the provisions or terms contained in the knowledge and consent of the donor, the donated
donation and the intention of the parties as properties could not be disposed of in any way” This is
demonstrated by the circumstances attendant upon its donation mortis causa because the donee is expressly
execution. prohibited to make any disposition of the property during
the donor’s lifetime.
Q. In case of doubt, what is the presumption?
In case of doubt, the conveyance should be deemed Sambaan v. Villanueva
donation mortis causa. The construction must be that Donation was made in consideration of the affection and
entailing the least transmission of rights and interests. love of the donor for the donee but the donation was to
take effect after the donor’s death. This is a donation
inter vivos because death was not the consideration for

13 | U N I V E R S I T Y O F S A N C A R L O S
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
the donation but rather the donor’s love and affection for
the donee. That the properties would be delivered only
after the donor’s death was just a mere modality of the
contract which did not change it inter vivos character.
INSTANCES OF DONATIONS INTER VIVOS
1. “This gift to X in recompense for her services to
me, does not pass title to her during my lifetime,
but when I die, she shall be the true owner
thereof”
 This is donation inter vivos notwithstanding
the stipulation that the ownership of the
lands shall only be transferred to the donee
upon her death – for such a statement can
only mean that she only reserved to herself
the possession and usufruct of the
property.
2. Donation accepted by donees who were given
limited right of disposition, with donor reserving
beneficial ownership.
3. Donation was executed out of love and affection as
well as a recognition of the personal services
rendered by the donee
4. Ownership and possession of property immediately
transferred to donee but his right to fruits begin
only after donor’s death
5. Causes of revocation specified
6. Donor states that the donation will enter into force
after the death of the donor
7. Donor states that the transfer shall be irrevocable
8. Donor and donee prohibited from alienating and
encumbering the property
9. Usufruct reserved by the donor
INSTANCES OF DONATIONS MORTIS CAUSA
1. Registration of deed of donation prohibited
2. Donation to take effect and pass title only by and
because of death
3. Donated properties to be delivered after donor’s
death
4. Right to dispose and enjoy reserved by the donor
5. Donation makes no actual conveyance
TN: A donation mortis causa not cast in the form of a
last will and testament is void.
Art 730. DONATION INTER VIVOS SUBJECT TO A
SUSPENSIVE CONDITION
14 | U N I V E R S I T Y O F S A N C A R L O S
DONATION INTER VIVOS SUBJECT TO A SUSPENSIVE
CONDITION
Contemplates a situation where the donor intends the
donation to take effect during his lifetime, but he
imposes a suspensive condition which may or may not
take place beyond his lifetime.
TN: The fact that the condition is fulfilled after the
donor’s death does not change the nature of the act as a
donation inter vivos.
Q. What is a suspensive condition?
A condition is an uncertain event which may or may not
happen. There is a suspensive condition when the
acquisition of rights shall depend upon the happening of
the condition.
Q. What is the rationale of the rule?
Because the condition is merely an accidental clause in
the donation and does not control the donor’s desire to
see the condition fulfilled during his lifetime. Also, the
effect of the fulfillment of the suspensive condition
retroacts to the making of the condition.
Q. What is the exception to rule?
When the donor really intended that the donation should
take effect after his death. In such case, it would be a
donation mortis causa.
Art 731. DONATION INTER VIVOS SUBJECT TO A
RESOLUTORY CONDITION
DONATION INTER VIVOS SUBJECT TO A RESOLUTORY
CONDITION
Ownership of the donated property is immediately
transferred to the donee upon perfection of the
donation, notwithstanding the resolutory condition.
Ownership will only revest to the donor if the condition is
not fulfilled.
Q. When is a condition considered resolutory?
When the rights already acquired by the donee are
extinguished upon the fulfillment of the condition.
Examples:
1. When a person donates land to a university on
the condition that the latter would build upon
the land a medical school
2. X made a donation to Y, subject to the condition
that should he survive the operation, the
donation shall be without force and effect
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
3. X donates to Y a house subject to the condition
that the same shall be revoked upon failure of Y
to continue supporting X during his lifetime.
ArtS 732-733. PROVISIONS GOVERNING DONATIONS
Q. What provisions govern donations inter vivos?
They are governed by the general provisions on
contracts and obligations in all that is not determined in
the Title on Donations. In other words, the rules on
obligations and contracts apply suppletorily.
Q. What rules govern onerous donations or onerous
portions thereof?
 Donations with an onerous cause – governed by
the rules on contracts
 Remuneratory donations as to the portion which
exceeds the value of the burden imposed –
governed by the rules on donations
TN: The remuneratory donations referred in this
provision are the modal donations or those which impose
upon the donee a burden which is less than the value of
the thing given.
Lagazo v. Court of Appeals
Where the deed of donation did not expressly impose
any burden but the recipient actually paid charges
imposed on the property like real estate taxes and
installment arrearages, the donation was held simple
and not onerous because they were merely voluntary
acts of the donee.
ArtS 734. PERFECTION OF DONATION
PERFECTION OF DONATION
The donation is perfected from the moment the donor
knows of the acceptance by the donee.
Q. Why is acceptance by the donee necessary?
Because nobody is obliged to receive a benefit against
his will.
Q. What is the effect of absence of acceptance?
The donation shall be null and void.
15 | U N I V E R S I T Y O F S A N C A R L O S
Q. When is donation perfected?
From the time the acceptance by the donee is made
known, actually or constructively, to the donor.
Acceptance make the donee the owner of the property
donated.
ACCEPTANCE IS SAME/SEPARATE INSTRUMENT
 Donation and acceptance are in the same public
instrument – donation is deemed already perfected
since knowledge of the acceptance is established by
the instrument itself.
 If acceptance was made in a separate instrument –
there must be proof that a formal notice of such
acceptance was received by the donor.
Q. May donation be revoked?
Yes, before learning of the acceptance by the donee.
However, once donation is already perfected, it cannot
be revoked without the consent of the donee, except on
the grounds of:
1. Inofficiousness
2. Failure of the donee to comply with the charges
imposed in the donation or by reason of
ingratitude
Q. Is registration of the deed of the donation with the
RD necessary?
No, registration is not needed for its validity and efficacy,
insofar as the donor and donee are concerned.
Chapter 2 – Persons who may give or receive a
donation
Art 735. CAPACITY OF DONOR
CAPACITY OF DONOR
The donor must have both before he may make a
donation:
1. The capacity to contract
2. Capacity to dispose of his property
Q, Why?
Because donations inter vivos are to a certain extent
contractual in nature and are a mode by which property
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
is alienated or disposed of. Hence, those who cannot
give consent to a contract cannot be donors.
Q. Give an instance where there is capacity to contract
but not too dispose? Neither spouse may donate any
community or conjugal property without the consent of
the other.
Q. Are corporations empowered to make donations?
Yes, under the Corporation Code, corporations may
make reasonable donations, including those for the
public welfare or for hospital, charitable, cultural,
scientific, civic or similar purposes.
Exception:
No corporation may give donations in aid of any political
party or candidate or for purposes of partisan political
activity.
ArtS 736. DONATION BY A GUARDIAN OR TRUSTEE OF
WARD’S PROPERTY
Q. May guardians and trustee donate their ward’s
properties? No, because they are not the owners of the
same. Trustees have only the legal but not the equitable
or beneficial title to the property held in trust.
Exception:
If the donation is onerous and in beneficial to the
beneficiary.
Araneta v. Perez
Trustee donates with court approval to the City of Manila
a parcel of land to save the trusteeship realty tax and
relieve it from the duty of maintaining the lot in usable
condition as a street. When the donation is clearly in the
interest of the beneficiaries, the same may be permitted.
Art 737. CAPACITY OF THE DONOR AT TIME OF
MAKING THE DONATION
Q. When shall the donor’s capacity be determined?
Under the law, donor’s capacity must exist at the time of
making the donation and not from the perfection of the
donation (the time of knowledge by the donor of the
acceptance)
But there arises a juridical absurdity in case the donor
becomes insane at the time the acceptance is conveyed
to him. Since legally, the donor cannot be said to have
knowledge of the acceptance, there can be no perfection
of the donation.
16 | U N I V E R S I T Y O F S A N C A R L O S
Hence, to reconcile, the phrase “making of the donation”
should be construed to mean “perfection of the
donation”.
Art 738. CAPACITY OF THE DONEE
CAPACITY OF THE DONEE
Q. Who may accept donations?
All persons, whether natural or artificial, may be donees
as long as they are not specially disqualified by law.
Donations may be made to:
1. Incapacitated persons like minors
2. Conceived and unborn children
Q. What are examples of cases of special
disqualifications?
Donations between husband and wife during the
existence of the marriage.
Such donations are void.
Art 739. DONATIONS VOID ON MORAL GROUNDS
DONATIONS VOID ON MORAL GROUNDS
1. Those made between persons who were guilty of
adultery o concubinage at the time of the donation
2. Those made between persons found guilty of the
same criminal offense
3. Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office
Q. What is the effect of these donations?
They are null and void ab initio and not merely voidable.
TN: The prohibitions apply to testamentary provisions
and to life insurance.
DONATIONS BETWEEN PERSONS GUILTY OF ADULTERY
OF CONCUBINAGE
 Conviction of adultery or concubinage in a criminal
action is not essential
 Guilt of the donor and the donee may be proved by
mere preponderance of evidence in a civil
proceeding
 Donation is void whether made before or after the
illicit relations, if given in consideration thereof.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
SSS v. David
A concubine who did not know that the man she lives
with is married cannot be guilty of concubinage. Hence,
she is not disqualified from being an insurance
beneficiary.
DONATIONS BETWEEN PERSONS FOUND GUILTY OF
SAME CRIMINAL OFFENSE
 Presupposes prior criminal conviction in a criminal
action  Proof of guilt beyond mere preponderance
of evidence is not sufficient  Donation here is
remuneratory or onerous.
 Void whether made before or after the commission
of the crime
 Still void although the crime is not carried out
because it is based on an unlawful cause
DONATIONS MADE TO A PUBLIC OFFICER, ETC. BY
REASON OF HIS OFFICE
 Indirect bribery is committed by a public officer who
shall accept gifts offered to him by reason of his
office
 Guilt need not be established by proof beyond
reasonable doubt in a criminal proceeding for
bribery.
Art 740. INCAPACITY TO SUCCEED WILL
INCAPACITY TO SUCCEED WILL
 Applicable to both donations inter vivos and mortis
causa
Q. Who are incapable of becoming donees?
1. Priest who heard the confession of the donor
during his last illness
2. Relatives of such priest within the fourth degree
3. Any attesting witness to the execution of a will
4. Any physician, surgeon, nurse, health officer
who took care of the donor during his last illness
5. Individuals, associations and corporations not
permitted by law to inherit
17 | U N I V E R S I T Y O F S A N C A R L O S
Art 741. DONATIONS TO MINORS & OTHERS W/O
CAPACITY TO CONTRACT
Q. How is acceptance made when the donation is to
minors or others without capacity to contract?
The acceptance must be made by the parents or legal
representative of the donee. Law makes no distinction
between simple and onerous donations. In either case,
acceptance must be made by the parents or legal
representative.
Art 742. DONATIONS TO CONCEIVED AND UNBORN
CHILDREN
Q. Who must make the acceptance in cases of donations
to conceived and unborn children?
Those persons who would legally represent them if they
were already born.
Q. Can a conceived and unborn child accept a donation?
Technically, no, because it is not yet a natural person.
But a conceived child is considered born for all purposes
that are favourable to it/
Q. When is a child considered born?
 If alive at the time it is delivered
 If the fetus had an intra-uterine life of less than
7 months – deemed born if it lives at least 24
hours after its delivery
Art. 743. DONATIONS TO INCAPACITATED PERSONS
Q. What is the effect of donations made to
incapacitated persons? They shall be considered void,
even if simulated under the guise of another contract
or through an intermediary.
Q. Who are incapacitated persons contemplated in this
provision?
Those who are specially disqualified by law to become
donees. (Refer to Art
739 and 740)
Art. DONATIONS OF THE SAME THING TO DIFFERENT
DONEES
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Q. What law shall govern if the same thing is donated to
two or more different donees?
The provisions on double sale shall govern.
 Movable – ownership is with the person who first
took possession in good faith
 Immovable
 Ownership is with the person who recorded it
in the Registry of Property in good faith
 If there is no inscription, to the person who
first possessed in good faith
 Person who present the oldest title in good
faith
Art 745. BY WHOM ACCEPTANCE IS MADE
Q. How may the donee accept the donation?
1. Personally
2. Through his authorized agent
Q. If made through an agent, what are the
requirements?
The agent must have a special power for the purpose or
a general power with a sufficient power to accept.
Art 746. WHEN ACCEPTANCE IS MADE
Q. When should acceptance be made?
 Donation inter vivos – during the lifetime of the
donee and that of the donor
TN: Even if donation is made during their lifetimes
but the donor dies before the acceptance is
communicated to him, the donation is not
perfected.
 Donation mortis causa – accepted only after the
donor’s death because they partake of a will and
are governed by the rules on succession.
TN: If the acceptance was made before the
donor’s death, the acceptance is void.
Art 747. DUTY OF PERSONS WHO ACCEPTS IN REP OF
THE DONEE
DUTY OF PERSONS WHO ACCEPTS IN
REPRESENTATION OF THE DONEE
Persons who accept donations in representation of
others who may not do so by themselves, shall be
18 | U N I V E R S I T Y O F S A N C A R L O S
obliged to make the notification and notation of which
Article 749 speaks.
Q. When are the requisites for this provision to apply?
1. Acceptance is made through the parents, legal
representatives, or authorized agent of the
donee
2. Property donated is immovable
3. Acceptance is made in a separate public
instrument
TN: The requirement of notification of the donor and the
notation in both instruments that such notification has
been made is necessary for the validity and perfection of
the donation?
Art 748. FORMALITIES FOR DONATION OF MOVABLES
FORMALITIES FOR DONATION OF PERSONAL PROPERTY
Q. How may a donation of a movable be made?
It may be made orally or in writing.
 Oral donation – requires the simultaneous
delivery of the thing or of the document
representing the right donated
Except: Value of property exceeds P5,000 – donation
and acceptance must always be made in writing.
Gentoo v. De Lorenzo
Donor gave certificates of stock to her son X with
instruction to transfer the same to him and his brother Y,
who at the time of the delivery was not present. There
was no showing that Y authorized C to accept for the
both of them. Is the donation valid? NO. The donation
was oral but there was no simultaneous delivery which
could not be done in view of the absence of Y.
Art 749. FORMALITIES FOR DONATION OF
IMMOVABLES
FORMALITIES FOR DONATION OF REAL PROPERTY
Q. How may a donation of an immovable be made?
Donation of an immovable must be made in a public
document specifying the property donated and the value
of the charges which the donee must satisfy.
Donation and acceptance are in the same instrument
1. Donation must be in a public document
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407

2. Instrument must specify the property donated and 2. Acceptance by the donee must be in a public
the charges if any document
3. It must be done during the lifetime of the donor
Donation and acceptance are in separate instruments
1. Donation must be in a public document
3. Instrument must specify the property donated and
the charges if any

19 | U N I V E R S I T Y O F S A N C A R L O S
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
4. Donor must be notified in authentic form of the
acceptance of the donation in a separate
instrument
5. The fact that such notification has been made must
be noted in both instruments
Q. Is registration necessary for the donation to be
considered valid and effective? No. The necessity of
registration comes into play only when the rights of third
persons are affected.
Q. May a donation be ratified?
Yes. In a case, a daughter, as sole heir of her deceased
father, executed a public document ratifying a donation
made by her father which donation was void for lack of
compliance with the legal requisites. The ratifications
served as a quit claim of her right to the property.
However, it could not be given retroactive effect to the
prejudice of the creditors of the estate of the deceased
father.
Q. When is ownership acquired?
From the time the public instrument of donation is
simultaneously executed and acknowledged by the donor
and the donee, since the execution of a public
instrument of conveyance is one of the recognized ways
in which delivery of immovable property may be made.
JLT Agro v. Balansag
Title to immovable property does not pass from the
donor to the donee until and unless it has been accepted
in a public instrument and the donor duly notified
thereof.
Ortiz v. Court of Appeals
The absence in the deed of any reservation in favor of
the donor is proof that no such reservation was ever
intended considering that under the law, a donation of
immovable by public instrument is required to specify the
“value of the charges” that the donee must assume.
Chapter 3 – Effect of donations and limitations thereof
Art 750. RESERVATION OF SUFFICIENT MEANS FOR
SUPPORT OF DONOR
RESERVATION OF SUFFICIENT MEANS FOR SUPPORT
OF DONOR
Q. May a donor donate all his present property?
Yes, provided he reserves sufficient property in
ownership or in usufruct for the support of himself and
of all relatives who are entitled to be supported by him
at the time of the perfection of the donation.
Q. What is meant by present property?
Property which the donor can rightfully dispose at the
time of the donation.
20 | U N I V E R S I T Y O F S A N C A R L O S
Q. If the donor donated all his present property without
the required reservation, is the donation void in its
entirety?
No. It is only subject to reduction by the court on
petition of the party prejudiced by the donation.
Q. Is the rule on reservation applicable also to onerous
ones and donations mortis causa?
No, because the donor receives something in return for
what he gives in onerous donations. Also, donations
mortis causa take effect only after the donor’s death,
hence insofar as the donor is concerned, he would
already be dead.
Q. What is the limitation in donations propter nuptias?
It cannot exceed more than 1/5 of the present property
of the future spouses.
Art 751. DONATION OF FUTURE PROPERTY
PROHIBITED
DONATION OF FUTURE PROPERTY PROHIBITED
Future property is anything which the donor cannot
dispose of at the time of the donation. Nobody can
dispose of that which does not belong to him. It is
immaterial that it may subsequently belong to the donor.
Q. What is meant by future inheritance?
The inchoate right of an heir to inherit. The same cannot
also be donated because it is future property. But upon
the death of his predecessor, the inheritance ceases to
be future and consequently it may be the object of
donation even if the properties have not yet been
delivered to the heir.
Q. Are properties whose acquisition is subject to a
suspensive condition considered future property?
No. They may be donated because the effects of the
fulfillment of the condition shall retroact to the day of
the constitution of the contract.
Art 752. DONATION LIMITED TO WHAT DONOR MAY
GIVE BY WILL
AMOUNT OF DONATION LIMITED TO WHAT DONOR
MAY GIVE BY WILL
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.
Q. What is the limitation imposed?
A person may not donate more than he can give by will,
and a person may not receive by way of donation more
than what the donor is allowed by law to give by will.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Q. When does the limitation apply?
Where the donor has forced or compulsory
heirs. The purpose is not to diminish the
legitimes to which they are entitled.
Q. When is the limitation enforceable?
Only after the death of the donor because it
is only hen when it can be determined
whether or not the donation is inofficious by
contrasting its value with the net value of
the estate of the donor deceased.
Art 753. DONATION TO SEVERAL DONEES
JOINTLY
DONATION TO SEVERAL DONEES JOINTLY
Q. What are the rules when donation is to
several donees jointly?
1. Donation is understood to be in equal
shares
(X donates to A and B P20, 000
without specification of their shares. A
and B gets P10, 000 each)
2. There shall be no right of accretion
among the donees
(If A for some reason declines the donation,
B shall not get A’s share unless the
donor has intended otherwise)
3. If the donees are husband and wife,
there shall be a right of accretion.
(If A and B are husband and wife, and
A declines the donation, his share
goes to B, unless otherwise provided
by the donor)
Q. What is the effect if there is no accretion
among the donees?
One cannot accept independently for his co-
donee who is not present.
21 | U N I V E R S I T Y O F S A N C A R L O S
Art 754. RIGHTS AND ACTIONS
RIGHTS AND ACTIONS
Q. What are the rules?
1. Donee is subrogated to all the rights
and actions which in case of eviction
would pertain to the donor.
Ex. The property donated by A to B
was purchased from X and the
property had hidden defects or B
was evicted therefrom, B can bring
the proper action against X.
2. If donation is simple or
remunerative, the donor is not liable
for eviction or hidden defects
because the donation is gratuitous,
except if donor is in bad faith
3. If donation is onerous, the donor is
liable on his warranty, but only to
the extent of the burden.
Art 755. DONATION W/ RIGHT OF DONOR
TO DISPOSE OF PART RESERVED
DONATION WITH RIGHT OF FONOR TO
DIPOSE OF PART RESERVED
The donor may reserve the right to dispose
of some of the things or part of the thing
donated or some amount or income thereof.
The donation is actually conditional, and the
condition is fulfilled if the donor dies without
exercising the right he reserved.
Example: X donates to Y a house and an
apartment with the provision that X could
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
sell the house and give the rents of the
apartment for 5 years to P. The donation of
the house with a reservation of the right to
dispose should be considered mortis causa.
The donation of the apartment is inter vivos.
Art 756. NAKED OWNERSHIP AND
USUFRUCT SEPARATELY DONATED
NAKED OWNERSHIP AND USUFRUCT
SEPARATELY DONATED
The donor may donate separately the naked
ownership to one person and the usufruct to
another.
• The donee must be living at the
time of the perfection of the
donation.
• A donation to a child who was not
yet conceived at the time it was
made is void
• If property donated is immovable,
the formalities for donations of real
property must be complied with
because naked ownership and
usufruct over real property are real
properties themselves.
Art 757. DONATION WITH PROVISION FOR
REVERSION
DONATION WITH PROVISION FOR
REVERSION
The donor may provide for reversion
whereby the property donated shall go back
to the donor or some other person, for any
case and circumstances.
Q. What is required for reversion in favor of
other persons to be valid? They must be
living at the time of the donation. Hence,
reversion in favor of an unconceived child is
void.
22 | U N I V E R S I T Y O F S A N C A R L O S
Q. What is the effect of the nullity of the
reversion?
It shall not invalidate the donation. The
reversion which is merely an accessory
clause is simply disregarded.
Art 758-759. LIABILITY OF DONEE TO PAY
DEBTS OF DONOR
LIABILITY OF DONEE TO PAY DEBTS OF
DONOR
Where donor imposes obligation upon the
donee
1. Donee is liable to pay only debts
previously contracted
2. He is not liable for debts in excess of
the value of the donation received
Where there is no stipulation regarding the
payment of debts
1. Donee is generally not liable to pay
the donor’s debts
2. Liable only if the donation has been
made in fraud of creditors (Always
presumed when at the time of the
donation, the donor has not left
sufficient assets to pay his debts)
3. Not liable beyond the value of the
donation received
TN: Creditors who have been defrauded may
exercise the subsidiary right of rescission,
unless the property donated has passed to
the hand of third persons in good faith for
value.
Chapter 4 – Revocation and Reduction of Donations
Art 760. BIRTH, APPEARANCE OR ADOPTION OF A
CHILD
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
GROUNDS FOR REVOCATION AND
REDUCTION
Applies to all donations inter vivos. It does
not apply to:
1. Donations mortis causa – because
they are revocable at will by the
donor
2. Onerous donations – because they
are really contracts
3. Donations propter nuptias – for they
are revocable only for the causes
provided in the Family Code
Q. What are the grounds for revocation?
This affects the whole donation and is
allowed during the lifetime of the donor.
1. Birth, appearance, or adoption of a
child
2. Non-fulfillment of a resolutory
condition imposed by the donor
3. Ingratitude of the donee
Q. What are the grounds for reduction?
This affects a portion only of the donation
and is allowed during the lifetime of the
donor or after his death.
1. Failure of the donor to reserve
sufficient means for support of
himself or dependent relatives
2. Failure of the donor to reserve
sufficient property to pay off his
existing debts
3. Inofficiousness – donation exceeds
that which the donor can give by will
4. Birth, appearance or adoption of a
child
23 | U N I V E R S I T Y O F S A N C A R L O S
BIRTH, APPEARANCE, OR ADOPTION OF A
CHILD
Applicable when the donor, at the time he
made the donation, did not have any child or
descendant, or erroneously thought so.
Birth of a child
The donor had no child at the time of the
donation and thereafter, a child was born
even if posthumous (after the death of the
donor)
Q. Suppose at the time of the donation, the
child was already conceived but not yet
born, what is the rule?
It depends if the donor was aware of such
conception. If yes, Art 771 applies and he
cannot revoke the donation upon the birth of
the child. If not, the situation is similar to
appearance of an absent child. Hence, the
subsequent birth of the child should revoke
or reduce the donation.
Appearance of a child
Donor had only one child whom he believed
to have already died at the time of the
donation. (Descendant e.g. grandchild is not
covered)
Adoption of a child
Subsequent adoption of a minor child is also
a ground for the revocation or reduction of a
donation. (Note: only minor child)
EXTENT AND BASIS OF REVOCATION OR
REDUCTION
Q. What is the extent of revocation or
reduction?
The amount subject to revocation or
reduction is the excess over the portion that
may be freely disposed of by will.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Q. What is the basis of revocation or
reduction?
The value of the whole estate of the donor
at the time of the birth, appearance or
adoption of a child.
Q. Who has the burden of proof?
The donor – he must establish the
requirements prescribed by law, on the basis
of which revocation or reduction of the
donation can be adjudged.
Q. What is sought to be protected by Art
760?
The prospective or presumptive legitime of
the child because it is the only portion which
cannot be disposed of. Hence, if donation
does not exceed the free portion at the time
of the birth, appearance or adoption, there
will be no revocation or reduction, but it may
be reduced under Art 771 if it cannot be
covered by the free portion computed as of
the time of the donor’s death.
Illustration:
X who was then childless, donated to Y a
property worth P50, 000. Subsequently, a
child was born X whose estate at the time
was P30, 000. His total estate then including
the value of the property donated is P80
000.
Since the legitime of a legitimate child is ½
of the estate or P40, 000, the free portion is
also P40, 000. Hence, the donation must be
reduced to P10, 000.
But if the value of his estate was P70, 000,
donation is not revoked or reduced because
it does not exceed the free portion of P60,
000. (70k + 50k = 120k)
(120/2 = 60k)
OBLIGATION OF DONEE UPON
REVOCATION OR REDUCTION
Obligation of donee is dependent upon the
property donated.
24 | U N I V E R S I T Y O F S A N C A R L O S
 If property is still in his possession –
return
 If he has sold the property – give its
value
 If property has been mortgaged –
donor may redeem the mortgage and
donee must reimburse the donor
 If property cannot be returned – return
its value at the time of the perfection of
the donation
Q. How is the value at the time of donation
determined?
The price at which the property is sold is its
value. If the price is less than its actual
value, donee is not liable for the difference
absent proof of bad faith.
PRESCRIPTION OF ACTION FOR
REVOCATION OR REDUCTION
Donation is revoked ipso jure by operation of
law by the happening of any of the events
mentioned in Art 760. However, revocation
is not self-executory. Resort to judicial action
is necessary, but the action is not an action
to revoke but one to have the court declare
the revocation which has already taken place
by operation for law.
Q. May the action be renounced? Is it
transmissible?
No, the action cannot be renounced. Yes, it
is transmitted upon the death of the donor
to his heirs.
Q. What is the prescriptive period of action
for revocation or reduction? Four (4)
years, depending on the cause:
1. Birth of the first child – from the birth
of the first child
2. Legitimation of a child – from the time
of legitimation (celebration of the
subsequent marriage of the parents)
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
3. Adoption of a child –from the date of
judgment of the court approving the
adoption becomes final
4. Judicial declaration of filiation –from
the date when judgment declaring
filiation becomes final
5. Appearance of the absent child – from
the time the information was received
regarding the child’s existence
6. Concurrence of causes – from the
earliest cause
7. Impairment of legitime – governed
under the ordinary rules of prescription
(10 years from the time the right of
action accrue – death of donor-
decedent)
Art 764. REVOCATION BY REASON OF
FAILURE TO COMPLY W/ CONDITIONS
FAILURE TO COMPLY WITH CONDITIONS
Donation may be revoked by the donor in
case the donee fails to comply with any of
the conditions imposed by the donor upon
him.
Q. What is meant by conditions?
Obligations, charges or burdens imposed by
the donor for his benefit or that of a third
person. Revocation implies that there is an
existing donation.
Q. What is the period for fulfillment?
Within the period fixed by the donor. If no
period is fixed, the court shall determine the
period.
25 | U N I V E R S I T Y O F S A N C A R L O S
Central Phil. University v. CA
Where the time for the fulfillment of the
condition depends upon the exclusive will of
the donee, the starting point from which the
corresponding action must be instituted by
the donor begins with the expiration of a
reasonable period and opportunity for the
donee to fulfill what has been charged upon
him.
Q. What is the effect of non-fulfillment?
1. Property donated reverts to the
donor
2. Fruits of the property which the
donee may have received after
having failed to fulfill the condition
have to be returned to the donor
3. Alienations and mortgages made by
the donee are void, subject only to
the rights of innocent third persons
Q. What are the remedies of the donor?
1. Action for revocation
2. Action for specific performance
TN: Only the donor or his heirs have the
personality to question the noncompliance.
PRESCRIPTIVE PERIOD OF ACTION
Q. When may the action be brought?
Within 4 years from non-compliance with the
condition.
Q. Is court action necessary?
Yes, if the donee refuses to return the
property or to comply with the conditions.
Donor cannot just execute a deed revoking
the donation and adjudicating the property
to another person. The same is without
force and effect, having been done without
the intervention of the court.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Q. May the deed of donation provide for
automatic rescission? Yes, it may provide
that violations of the conditions shall cause
the automatic rescission of the contract.
Donation is automatically revoked without
need of a judicial declaration.
Except: Where the donee denies the donor’s
right to rescind. In which case, judicial
intervention is necessary to determine
whether rescission is proper.
Q. Who has burden of proof?
Presumption is that the donee has complied
with his obligation. The claim that the donee
failed to do so is a matter of defense, hence
the donor is duty bound to establish non-
compliance by competent evidence.
Q. May the action be renounced? Is it
transmissible?
Yes, action may be waived. Yes, the action is
transmissible in favor of the donor’s heirs
and against the donee’s heirs because the
right granted is not personal to the donor
nor is the liability of the donee personal to
him.
Art 765. REVOCATION BY REASON OF
INGRATITUDE OF THE DONEE
REVOCATION BY REASON OF INGRATITUDE
OF THE DONEE
The donation may be revoked at the
instance of the donor by reason of
ingratitude. This provision does not apply to:
1. Donations mortis causa
2. Onerous donations
Q. What are the grounds for revocation by
reason of ingratitude?
1. If the donee should commit some
offense against the person, honor or
property of the donor, his wife or
children under his parental authority
26 | U N I V E R S I T Y O F S A N C A R L O S
 Criminal conviction of the donee is
not required; sufficient that the
offense be proved by mere
preponderance of evidence in an
action for revocation
 “wife” should be understood to
mean “spouse”
 Child who is no longer under the
donor’s parental authority is not
covered
2. If the donee imputes to the donor any
criminal offense, or any act involving
moral turpitude, even though he
should prove it, unless the crime or
the act has been committed against
the donee himself, his wife or children
under his authority.
 Immaterial that the donee can
prove his accusation or
substantiate his testimony
 Exception: when the crime has
been committed against the donee
himself, his wife or children
 The act involving moral turpitude
may not amount to a crime
3. If he unduly refuses him support when
the donee is legally or morally bound
to give support to the donor
 Two requisites: (1) refusal to
support the donor must be undue
or without just reason, (2) donee
must be legally/morally bound to
support the donor.
 Donee is not liable to support the
donor beyond the value of the
property donated.
TN: The enumeration is exclusive and the
act of ingratitude must have been committed
by the donee himself because the duty of
gratitude is personal.
Noceda v. Court of Appeals
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
The donee’s act of occupying not only the
portion of the land donated to him but also
fenced the whole area of the land which
belongs to the donor without the latter’s
knowledge and consent is an act of
usurpation which is an offense against
property of the donor and is considered an
act of ingratitude.
EFFECT OF REVOCATION ON PRIOR
ALIENATIONS AND MORTGAGES
Q. What are the rules?
1. Alienations and mortgages made by
the donee before the complaint for
revocation is annotated in the Registry
of Property, are valid.
Effect: Donor can recover from the
donee only the value of the property
donated at the time of the perfection
of the donation or the sum for which it
was mortgaged.
TN: Recovery cannot be made against
the third person, unless he acted in
bad faith as when he had actual
knowledge of the cause for revocation
or the filing of the action.
2. Later alienations shall be void.
Effect: Donor can recover the property
from the transferee or mortgagee.
Illustrations:
July 10 – X donated the land to Y
July 20 – Y sold the land to T
July 30 – Y committed the act of ingratitude
August 10 – complaint for revocation was
annotated on the registry of property
27 | U N I V E R S I T Y O F S A N C A R L O S
Effect: The sale to T was valid, and the
remedy of X is to recover from Y the value
of the land at the time of the donation.
July 10 – X donated the land to Y
July 30 – Y committed the act of ingratitude
August 10 – complaint for revocation was
annotated on the registry of property
August 15 – Y sold the land to T
Effect: The sale is void and X can recover
the land from T.
July 10 – X donated the land to Y
July 20 – Y committed the act of ingratitude
July 25– complaint for revocation was filed
July 30 – Y sold the land to T (T was aware
of the act of ingratitude by Y or the pending
action by X)
July 31, complaint was annotated on the
registry of property
Effect: The sale is void because T acted in
bad faith, and therefore, X can recover the
property from T.
PRESCRIPTIVE PERIOD
One (1) year from the time the donor had
knowledge of the fact and it was possible for
him to bring the action.
Q. Can an action for revocation by reason of
ingratitude be renounced? No, it cannot be
renounced in advance – what the law
prohibits is waiver prior to the commission of
the act of ingratitude.
Exception: A past ingratitude – can be
subject of a valid renunciation because it can
be considered as an act of magnanimity of
the donor.
Q. When does the action prescribe?
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407
Within 1 year from the time the donor:
1. Had knowledge of the act of
ingratitude
2. It was possible for him to bring the
action
Q. To bar the action, what proof must the
donee show?
1. Proof that the 1 year period has
expired
2. That it was possible for the donor to
institute the said action with the said
period
TRANSMISSION OF ACTION FOR
REVOCATION
Q. Is the action transmissible to the heirs of
the donor?
General rule: NO, because the action to
revoke a donation by reason of ingratitude is
pure personal to the donor.
Exceptions:
1. If the donee killed the donor
2. If the donor dies without having known
of the act of ingratitude
3. A criminal case against the donee was
instituted by the donor but the donor
dies before he could bring the civil
action for revocation
4. If action for revocation has already
been filed by the donor before his
death
Q. May the heirs of the donee be held
responsible?
GR: No. The act of ingratitude of the donee
is personal.
XPN: If the donor has already filed the
complaint before the donee’s death, the suit
may be continued against his heirs.
Arts 771-772. REDUCTION OF INOFFICIOUS
DONATIONS
28 | U N I V E R S I T Y O F S A N C A R L O S
REDUCTION OF INOFFICIOUS DONATIONS
Inofficious donations (more than what the
donor can give by will) shall be reduced with
regard to the excess – upon the death of the
donor, after determining the net value of the
estate.
Q. Is an inofficious donation valid during the
lifetime of the donor? Yes, because it is only
upon the death of the donor can it be
determined whether it is inofficious or not.
Consequently, during the lifetime of the
donor, the donee is the owner of the
property donated and also the owner of the
fruits.
Q. When shall the action to reduce the
inofficious donation be brought? Within 5
years from the time the right of action
accrues (from the time of the donor’s death)
Q. Who are persons entitled to ask for
reduction in case of inofficious donations?
Only those who at the time of the donor’s
death have a right to the legitime and their
heirs and successors in interest. Donor is not
included because the inofficiousness can
only be determined after his death.
Q. May the right to ask for reduction of
inofficious donations be renounced?
No, it cannot be renounced during the
lifetime of the donor.
GENERAL RULES
RETURN BY DONEE OF THE FRUITS OF
PROPERTY DONATED
The rules depend upon the causes of
revocation or reduction.
1. Birth, appearance or adoption of a
child, ingratitude, inofficiousness of
the donation – only the fruits
accruing from the filing of the
complaint shall be returned.
PROPERTY LAW l Tanya de la Cruz Ibanez JD2 407

2. Non-fulfillment of any of the

conditions imposed in the donation –
return the property donated and the
fruits accruing from the time of the
breach of the condition.

REDUCTION WHERE THERE ARE TWO OR

MORE DONATIONS
If there being two or more donations, the
disposable portion is not sufficient to cover
all of them, those of the more recent date
shall be suppressed or reduced with regard
to the excess.

Q. What are the rules?

1. The subsequent donations shall first
be reduced with regard to the excess
2. If the two donations were perfected at
the same time – the reduction should
be proportionated.

29 | U N I V E R S I T Y O F S A N C A R L O S