PROPERTY Property(Civil law concept) Art. 414.

All things which are or may be the object of appropriation are consid ered either: (1) Immovable or real property; or (2) Movable or personal property. What is appropriation? The New Civil Law Code does not define what appropriation is, but it has been considered as equivalent to occupation, which is the willful apprehension of a corporeal object which has no owner, and with intent to acquire its ownership. PROPERTY, classification: a. Immovable or real property; and b. Movable or personal property Note: According to some authors, the classification given in Article 414 is no t complete in that there should be a third classification the mixed or the "semi-i mmovable". This classification refers to movable property like machines or remov able houses or transplantable trees which under certain conditions, may be consi dered immovable by virtue of their being attached to an immovable for certain sp ecified purposes. Importance of the classification: It does not assume its importance from the fact of mobility or non-mobility b ut from the fact that different provisions of the law govern the acquisition, po ssession, disposition, loss, and registration of immovable and movable. Examples: a. Donations 1) real property (like land) = must be in a public instrument, otherwise, the al ienation will be null and void even as between the parties. 2) movable (like a ring valued at say P 5,000.00) = needs only to be in a privat e instrument. (Art748). b. Ownership by prescription 1) real property (in bad faith) = 30 years (Art 1137) 2) personal properly (in bad faith) = 8 years (Art 1132). c. Generally, to affect third persons, transactions involving 1) real property must be recorded in the Registry of Property; 2) personal property = need not be recorded May parties by agreement treat as personal property that which by classification under the law is real property? It would seem that under the Civil Code, it is only the LAW which may conside r certain real property (like growing crops) as personal property for the purpos e of making a chattel mortgage. (Art 416(2)) Also, for purposes of taxation, a r eal property may be considered as personal property. REMINDERS: F A building is considered an immovable property. o Even if the owner of the land is different from the owner of the building cons tructed on such land, the building does not lose its immovable character. F If a chattel mortgage is constituted over a building separately owned by the m

ortgagor, the same may still be valid and effective between the contracting part ies by reason of estoppel provided no rights of third persons who are in good fa ith are impaired. o However, in case of foreclosure the mortgagor may proceed in accordance with t he rules on foreclosure of real estate mortgage. F With respect to machinery and equipment used for an industry or works o General rule: they may not be validly subject to replevin so long as they are intended by the owner for an industry and they directly meet the needs of the in dustry -- they are considered as real property. (They are not subject to replevi n which is an action to recover specific personal property.) o Exception: when the machinery is placed by the lessee in the real estate lease d to him by the owner of the real estate. o Exception to the exception: when the lessee places the machinery on the estate as an agent of the owner-lessor Immovable Property: Classes of Immovable: 1.) Immovable by nature = those which cannot be moved from place to place becaus e of their nature such as land (Art 415(1)), mines, quarries and slag dumps (Art 415(8)); 2.) Immovable by incorporation = those which are essentially movables but are at tached to an immovable in such manner as to become an integral part thereof [Exa mples: those mentioned in par 1, 2, 3, 4 & 6 of Art 415, except land, buildings, and roads] 3.) Immovable by destination = those which are essentially movables, but by the purpose for which they have been placed in an immovable, partake the nature of t he latter because of the added utility derived there from (such as those mention ed in pars 4, 6,7 & 9 of Art 415); and 4.) Immovable by analogy or by law = those mentioned in Art 415(10) -- right of usufruct easements, and servitudes. Article 415. The following are immovable property: PAR 1: land, buildings, roads, and constructions of all kinds adhered to the soi l. Land is the best example of immovable property. F It is immovable by its very nature. And even, if land is moved by an earthquak e or an extraordinary happening, the land should still be considered an immovabl e. F Even if land is rented, it is still considered as immovable. F A shovelful of land, however, should be considered personal property since thi s no longer adheres to the soil. Buildings of permanent structure are always classified as immovable. F It is immaterial whether it is built on a rented or owned land. F The nature of the building as property does not depend on the way the parties deal with it (see: Leung Yee vs. Strong Machinery Co. 37 Phil 664.] F Buildings are considered immovable provided they are more or less of a permane nt structure, substantially adhering to the land, and not mere superimpositions (ex. of superimpositions are barong-barong, Quonset fixtures) F A dismantled building or house and/or the materials of such dismantled house s hould be regarded as personal properties (see: Biscerra vs. Tenezz, 11-29-62,1, L-16218). Constructions of all kinds: F It is understood that the attachment must be more or less permanent. A wall or a fence is good example of this kind of immovable by incorporation.

F As long as there is intent to permanently annex the same, it is immaterial whe ther the materials used are only made of stone. Railroad tracks or rails come un der this category. F Wooden scaffoldings on which carpenters stand while constructing a house are m erely personal property in view of the lack of "adherence" to the soil or the in tent to permanently annex the same to the soil. Leung Yee v. Strong Machinery (37 P 644) F: Compania Agricola Filipina purchased rice cleaning machines from Strong Machi nery and executed a CM on the machines and building. Agricola failed to pay, so Strong Machinery foreclosed and recorded it in the Chattel Mortgage Registry. Le ung Yee, another creditor of Agricola, purchased the same bldg and recorded it i n Registry. Leung knew of Strong s claim though. H: bldg is real prop BUT Strong has better right since Leung is a buyer in bad f aith The building is a real property, therefore, its sale as annotated in the Chattel Mortgage Registry cannot be given the legal effect of registration in t he Registry of Real Property. The mere fact that the parties decided to deal wit h the building as personal property does not change its character as real proper ty. Thus, neither the original registry in the chattel mortgage registry, nor th e annotation in said registry of the sale of the mortgaged property had any effe ct on the building. (void as to 3rd persons) Bicerra v. Teneza (L-16218; 11/29/1962) F: Teneza forcibly demolished Bicerra s house worth P200. A case is filed before t he CFI H: CFI has no jurisdiction because no real property is being sued upon, the hous e having ceased to exist, and the amount of damages sought does not exceed the j urisdictional amount in inferior courts. While it is true that the complaint also seeks that the plaintiffs be de clared the owners of the dismantled house or the materials, such does not in any way constitute the relief itself, but is only incidental to the real cause of a ction which concerns the recovery of damages. PAR 2: Trees, plants and growing crops, while they are attached to the land form an integral part of an immovable. Trees and plants F no matter what their size may be are considered real property o by nature, if they are the spontaneous products of the soil, and o by incorporation, if they were planted through labor. F The moment they are detached or uprooted from the land, they become personal p roperty, o except in the case of uprooted timber, if the land is timberland because altho ugh no longer attached, the timber still forms an integral part of the timberland. Ungathered fruits F when the land is being leased by another, and the fruits belong to the tenant, the fruits may be considered as immovable because no exception or qualification is made under the Civil Code. F However, when the fruits although ungathered are sold, as when the entire harv est is sold before being actually gathered, it is considered as a sale of movabl es. F In the case of Sibal vs Valdez, 50 Phil 512, the Supreme Court held that for p urposes of attachment and execution, and for purposes of the Chattel Mortgage La w, ungathered products have the nature of personal property. (mobilized by antic ipation -- when the crops are sold, it is understood that they are to be gathere d) PAR 3: Everything attached to an immovable in a fixed manner, in such a way that

it cannot be separated there from without breaking the material or deterioratio n of the object. (called Res Vinta in Roman Law) F Under this paragraph, for the incorporated thing to be considered real propert y, the injury or breakage or deterioration in case of separation, must be substa ntial. Examples: o A fixed fire escape stairway firmly embedded on the walls of the house; o an aqueduct; o a sewer o a well F If the thing incorporated is temporarily removed with the intention to replace the same, the thing is considered as personal property because the incorporatio n had ceased. F The material fact of incorporation or separation is what determines the condit ion of the tenement; it recovers its conditions as movables, irrespective of the intention of the owner. Real Must property by by owner, or his agent, express deterioration Needbe Can 4beseparated incorporation without breaking Cannot bebe placedthe theimmovable destination or or deterioration Par 3notplacedby from immovableand without breakingor implied separated from owner Board of Assessments vs. MERALCO MERALCO was assessed real property tax on its electric poles. The theory wa s that the same are real property being adhered to the soil. The SC said that the electric poles are not real property since they can be removed. Such poles were not attached in fixed manner. PAR 4: Statues, reliefs, paintings or other objects for use or ornamentation, pl aced in building or on land by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements. F o o o o These are immovable both by incorporation and by destination. Examples: A fixed statue in the garden of the house; a permanent painting on the ceiling; a picture embedded in the concrete wall of a house; a rug or carpet fastened to the floor (wall-to-wall carpeting).

Notes: 1. The objects must be placed by the owner of the immovable (buildings or lands) and not necessarily by the owner of the object. 2. The owner of the building or land may act through his agent or if insane, thr ough his duly appointed guardian. 3. If placed by a mere tenant, the objects must remain chattels or personality ( See Davao Sawmill v. Castillo, 61P709). 4. Where the owner of a tenement entered into a contract with a lessee, stipulat ing that the lessee shall place certain objects in the property leased, and that such objects shall remain with the property upon the termination of the lease, without any obligation on the part of the owner to reimburse the lessee, it has been held that the tenant acts as an agent of the owner in giving by contract a permanent destination to them (See: Valdez vs. Central Altagracia, 255 U.S. 58). Davao Sawmill v. Castillo (61 P 709) F: Dvo. Sawmill placed machinery on the land of another. Contract stipulated: mac hinery was not included in the improvements which would pass to the lessor on th e expiration of the lease. Sawmill executed CM over the machinery H: machinery are personal property Machinery which is movable in nature only becomes immobilized when place d in a plant by the owner of the property or the plant, but not so when placed b y a tenant, a usufructuary or any person having only temporary right unless such person acted as the agent of the owner. The owner of the machinery is not presu med to have intended to deprive himself of the property by an act of immobilizat ion to become the property of another.

PAR 5: machinery, receptacles, instruments, or implements intended by the owner of the tenement for an industry or works which may be carried on in a building o r on a piece of land, and which tend directly to meet the needs of the said indu stry or works These are immovable by purpose or destination Requisites: 1. The placing must be made by the owner of the tenement, his agent, or his duly authorized legal representative; 2. The industry or works must be carried on in the building or on the land; 3. The machines, etc. must tend directly to meet the needs of said industry, or works (Adaptability) 4. The machines must be essential and principal elements in the industry, and no t merely incidental. F A transportation business is not carried on in a building or in the compound ( See: Mindanao Bus Co. vs. City Assessor, 9-29-62) F Cash registers, typewriters, etc. usually found and used in hotels, restaurant s, theaters, etc. are merely incidentals, and should not be considered immobiliz ed by destination for these businesses can continue or carry on their functions without these equipment. * The same applies to the repair or service shop of the transportation business because the vehicles may be repaired or serviced in another shop belonging to an other. F Machineries of breweries used in the manufacture of liquor and soft drinks, th ough movable by nature, are immobilized because they are essential to said indus tries; but the delivery trucks and adding machines which they usually own and us e and are found within their industrial compounds are merely incidentals and ret ain their movable nature F Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or plant but not when so placed by a ten ant, usufructuary, or any person having only a temporary right of a tenant, unle ss such person acted as the agent of the owner. Machines placed in a sugar central are considered immovable, even if the central has already been the subject of mortgage. BH Berkenkotter vs. Cu Unjieng (61 P 663) F: Mabaclat Sugar has an existing mortgage over its building and improvements in favor of Cu Unjieng. Mabaclat bought new machineries. Mabaclat failed to pay, s o Cu Unjieng lays claim on the mortgage including the new machineries H: new machineries are considered permanent improvements thus part of the mortga ge Machinery intended by the owner of any building or land for the use in conne ction with any industry or trade being carried on therein and which are expressl y adapted to meet the requirements of such trade, are considered as real propert y. If the installation of the machinery and equipment in question in the centra l converted them into real property by reason of their purpose, it cannot be sai d that their incorporation therewith was not permanent in character because, as essential and principal elements of a sugar central, without them the sugar cent ral would be unable to function or carry on the industrial purpose for which it was established. The new machinery must, therefore, be considered as subject to the real estate mortgage in favor of the defendant. Note: Would it have made a difference if there was no stipulation that the r eal estate mortgage would cover future improvements? No, the improvements would be covered automatically by law as the same are immobilized. Of course, the pa rties are free to stipulate what may be excluded from the mortgage.

Tsai v. CA (120098; 10/2/2001) F: After the real and chattel mortgage was constituted, Evertex bought new machi neries. They failed to pay so PBCom foreclosed on the mortgage, including the ne w machineries. They contended that since the machineries were bolted, cemented a nd heavy, they are considered real property. The mortgage did not contain any pr ovision that after-acquired properties are included H: new machineries should not be included in the foreclosure since they are cons idered as movable and not covered by CM Petitioners contend that the nature of the disputed machineries, i.e., t hat they were heavy, bolted, or cemented on the real property mortgaged by Evert ex to PBCom, make them ipso facto immovable under Art 415(3) and 5 of NCC. This assertion, however, does not settle the issue. Mere nuts and bolts do not forecl ose the controversy. We have to look at the parties intent. While it is true that the controverted properties appear to be immobile, a perusal of the contract of Real and Chattel Mortgage executed by the parties herein gives us a contrary indication. Evertex and PBCom intended to treat the m achinery and equipment as chattels. Assuming arguendo that the properties in question are immovable by natur e, nothing detracts the parties from treating it as chattels to secure an obliga tion under the principle of estoppel. Effect of separation: A If the machines are still in the building, but no longer used in the industry conducted therein, the machines revert to the condition of a chattel. A The moment they are separated from the purpose of the industry (not necessaril y from the immovable), they recover their condition as movables (Ago vs. CA 6 S 530) A On the other hand, if still needed for the industry, but separated from the te nement temporarily, the property continues to be an immovable, inasmuch as par 5 refers, not to real property by incorporation, but to real property by destinat ion or purpose. GR: Machinery attached to land or a tenement is considered immovable when the ma chinery is intended by the owner of the tenement for an industry or works w/c ma y be carried on in a building or on a piece of land, and w/c tend directly to me et the needs of the said industry or works Exception: When the machinery is placed on the land or tenant by a mere tenant, it is considered as movable property Exception to the exception: When: a. the tenant had promised to leave the machinery on the tenement or the land ev en after the lease expires b. the tenant acted only as an agent of the owner of the land Ago v. Ca (L-17898, 10/31/1962) F: Sheriff sold machineries following the rules on sale of personal prop H: sale is void; procedure for sale of real property should have been followed By the installation of the sawmill machineries in the building of the Golden Pacific Sawmill, Inc., for use in the sawing of logs carried on in said buildin g, the same became a necessary and permanent part of the building or real estate on which the same was constructed, converting the said machineries and equipmen ts into real estate within the meaning of Article 415(5). Considering that the machineries and equipments in question valued at more than P15,000.00 appear to have been sold without the necessary advertisement of sale by publication in a newspaper, as required in Sec. 16 of Rule 39 of the Rules of Court, the sale made by the sheriff must be declared null and void. PAR 6: Animal houses, pigeon-houses, beehives, fishponds or breeding places of s

imilar nature, in case their owner has placed them or preserves them with the in tention to have them permanently attached to the land, and forming a permanent p art of it; the animals in these places are included. A The houses referred to here may already be deemed included in par. 1 when spea king of "constructions of all kinds adhered to the soil." A Even if the animals are temporarily outside, they may still be considered as r eal property as long as the intent to return is present, as in case of a homing pigeon. A But from the viewpoint of criminal law, they are considered as personal proper ty and may properly be the objects of theft or robbery. A When the animals inside the permanent animal houses are alienated onerously or gratuitously, it is believed that the transaction is an alienation of personal property, unless the building or the tenement itself is also alienated. This is because in said alienation, the animal structures must of necessity be detached from the immovable. Hence, an ordinary inter vivos donation of a pigeon-house ne ed not be in a public instrument. PAR 7: Fertilizers actually used on a piece of land. A Fertilizers still in the barn and even those already on the ground but wrapped inside some newspapers or any other covering are still to be considered persona l property, for they have not yet been "actually" used or spread over the land. A The fertilizers should be on the land where they are to be utilized, because i t is only then, that the intention of the owner to use them on the tenement is b eyond doubt. Hence, fertilizers kept in the farmhouse are not immovable. PAR 8: Mines, quarries, and slag dumps while the matter thereof forms part of th e bed, and waters,either running or stagnant. A Mines, including the minerals still attached thereto, are real properties, but when the minerals have been extracted, the latter become chattels (40 CJ 903) A Slag dump is the dirt and soil taken from a mine and piled upon the surface of the ground. Inside the "dump" can be found the minerals. A The "waters" referred to are those still attached to or running through the so il or ground. But the "water" itself as distinguished from "waters" is clearly p ersonal property. A On the other hand, canals, rivers, lakes, and such part of the sea as may be t he object of appropriation, are classified as real property. PAR 9: Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, or coast. A A floating house tied to a shore or bank post and used as a residence is consi dered real property, considering that the "waters" on which it floats, are consi dered immovable. A In a way, we may say that the classification of the accessory (the floating ho use) follows the classification of the principal (the waters). However, if the f loating house makes it a point to travel from place to place, it assumes the cat egory of a vessel. A By express provision of Article 585 of the Code of Commerce, vessels are movab le property, but they partake, to a certain extent, of the nature and conditions of the real property, on account of their value and importance in the world of commerce. (Rubiso vs. Rivera, 37 Phil 72) A Vessels are considered personal property. As a matter of fact, they are indeed very movable. (PRC vs. Jarque,61 Phil 229). A Because they are personal property, they may be the subject of the chattel mor tgage. (McMicking vs. Espanol-Filipino, 13 Phil 429; Arroyo vs. Yu de Sane, 44 P hil7).

PRC v. Jarque (3/25/1935) F: PRC executed a CM over their 3 vessels 2 of them do not have an affidavit of good faith while 1 was not registered on the port H: Under the civil law, vessels are considered as personal property. Under the c ommon law, vessels are personal property although occasionally referred to as a peculiar kind of personal property. Since personal property includes vessels, they are subject to mortgage a greement to the provisions of the chattel mortgage law. The only difference betw een a chattel mortgage of a vessel and a chattel mortgage of other personalty is that it is not now necessary for a chattel mortgage of a vessel to be noted in the Registry of Deeds but it is essential that a record of documents affecting t he title to a vessel be entered in the record of the Collector of Customs at the port of entry. Sec 5 of chattel mortgage law includes the requirement of an affidavit o f good faith appended to the mortgage and recorded therewith. Absence of the aff idavit vitiates a mortgage against creditors and subsequent encumbrances. The mortgage is lacking and unenforceable against third persons. PAR 10: Contracts for public works, and servitudes and other real rights over i mmovable property (real prop by analogy) A The properties referred to in this paragraph are not material things but right s, which are necessarily intangible. A The piece of paper on which the contract for the public works has been written is necessarily personal property, but the contract itself or the right of the c ontract is real property. A A servitude or easement is an encumbrance imposed on an immovable for the bene fit of another owner, or for the benefit of a person, group of person, or a comm unity, like the easement of right of way. A Other real rights over real property include o real estate mortgage, o antichresis, o possessory retention, o usufruct, o leases of real property, if registered; or even if not registered, if their du ration is for more than a year. A Usufruct of personal property or a lease of personal property should be consid ered personal property. A In the case of Presbitero vs. Fernandez (March 30, 1958), the Supreme Court he ld that sugar quotas are real property, for they are by law considered "real rig hts over immovable property" just like servitudes and easements. u Real rights are those rights which are enforceable against the whole world. ( i.e. ownership, possession in concept of holder, servitude, mortgage). u For a real right to be considered real property, the real right must be over a n immovable property. For example, the real right of ownership of the land is c onsidered real property while the real right of ownership over a bag is consider ed personal property. Movable Property Article 416. The following things are deemed to be personal property: 1. Those movables susceptible of appropriation which are not included in the pre ceding article; Examples: cell phones; money; ring; cars 2. Real property which by any special provision of law is considered as personal ty;

Examples: u Growing crops for the purpose of the Chattel Mortgage Law (Sibal vs. Valdez, 5 0 Phil. 512); u machinery placed on a tenement by a tenant, who did not act as the agent of th e tenement owner (Davao Sawmill vs. Castillo, 61 Phil 709); 3. Forces of nature which are brought under control by science; and Examples: Electricity, gas, light, nitrogen (US vs. Carlos, 21 Phil. 543) 4. In general, all things which can be transported from place to place without i mpairment of the real property to which they are fixed. Examples: Machinery not attached to land nor needed for the carrying on of an in dustry conducted therein; portable radio; diploma hanging on the wall Sibal v. Valdez (50 P 512) F: Sibal wants to redeem his mortgaged sugar can from Valdez who refused saying the sugar cane is personal property thus cannot be redeemed H: sugar cane is personal prop Although considered as growing fruits and therefore ordinarily real proper ty under Art. 415(2), the sugar cane here must be regarded as personal property for the purposes of 1. the Chattel Mortgage Law 2. attachment US v. Carlos (21 P543) F: Carlos used jumper to divert flow of electricity. He was accused of theft by Meralco H: he is guilty of theft While electric current is not a fluid, still its manifestations and effects like those of gas may be seen and felt. The true test of what may be stolen is n ot whether it is corporeal or incorporeal, but whether, being possessed of value , a person other than the owner, may appropriate the same. Electricity, like gas , is a valuable merchandise, and may thus be stolen. TEST TO DETERMINE WHETHER PROPERTY IS MOVABLE OR IMMOVABLE: 1. test by description a. If the property is capable of being carried from place to place b. If such change in location can be made without injuring the real property to which it may in the meantime be attached 2. test by exclusion a. It the object is not one of those enumerated or included in Article 415, then the inevitable conclusion is that the property is a personal property. Note: Test by exclusion is superior to test by description. Article 417. The following are also considered as personal property 1. Obligations and actions which have for their object movables or demandable su ms; # The term obligations really refers to credits" and also includes bonds, which a re technically obligations of the entity issuing them. # Action - if somebody steals my car, my right to bring action to recover the au tomobile is personal property by itself. # A promissory note is a personal property; the right to collect it is also a pe rsonal property.

2. Shares of stock of agricultural, commercial and industrial entities although they may have real estate # Although the provisions of par. 2 seem to refer only to corporations by the wo rds "shares of stocks", and only to those engaged in agriculture, commerce, and industry, nevertheless, all juridical persons must be deemed included. # A share of stock in a gold mining corporation is also personal property; but t he gold mine itself, as well as any land of the corporation, is regarded as real property by the law. The certificate itself evidencing ownership of the share, as well as the share itself, is regarded as personal property. Being personal, i t may be the object of a chattel mortgage (Chua Guan vs. Samahang Magsasaka, Inc . 62 Phil 472) # A half interest in drugstore business is personal property capable of being th e subject of a chattel mortgage (Strochecher vs. Ramirez, 44 Phil 933). However, a half-interest in a drugstore, considered as a building, (not a bussiness) is a real right in real property and is therefore by itself a real property. CLASSIFICATION OF MOVABLES: Art. 418. Movable property is either consumable or non-consumable. To the 1st cl ass belongs those movables w/c cannot be used in a manner appropriate to their n ature w/o being consumed, to the 2nd class belong all others. As to nature: 1. Consumables - Those whose use according to their nature destroys the substanc e of the thing or causes their loss to the owner. Food is an example of a consum able thing. 2. Non-consumables - any other kind of movable property. As to the intention of the parties: 1. Fungibles - Those replaceable by an equal quality and quantity, either by the nature of things, or by common agreement. 2. Non-fungibles - Those irreplaceable because the identical objects must be ret urned Note: It is the intention of the parties to a contract that determines whethe r the object is fungible or non-fungible and not the consumable or non-consumabl e nature of the thing. PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS Article 419. Property is either of public dominion or of private ownership.

The State may own properties both in its: 1. public capacity (public dominion) = ownership by the state in its public capa city or in the exercise of governmental functions 2. private capacity (patrimonial) = ownership by the state in its private capaci ty or in the course of its proprietary functions. a. This is the property over which the State has the same rights and for which i t may dispose, to the same extent as private individuals in relation to their pr operty, subject only to the administrative laws and regulations on the procedure of exercising such rights. b. They exist for the State to attain its economic ends, as a means for its subs istence, and the preservation of its natural organism

Article 420. The following things are property of public dominion: 1. Those intended for public use such as roads, canals, rivers torrents, ports, and bridges constructed by the state, banks, shores, roadsteads, and others of s

imilar character; 2. Those which belong to the state, without being for public use and are intende d for some public service or 3. for the development of the national wealth. CHARACTERISTICS: 1. They may be real or personal 2. They cannot be levied or attached; 3. They cannot be registered under the Land Registration Law; 4. They cannot be acquired by prescription; 5. They are outside the commerce of men; 6. They cannot be burdened by any voluntary easement. Property for PUBLIC USE = can be used by everybody, even by strangers or aliens in accordance with its nature; but nobody can exercise over it the rights of a p rivate owner Thus, no private person can have a property right in the use of a street for his private business, nor can he acquire over it such a right to possession as w ould require the exercise of possessory actions Public Service = not for the general use but for some state function (i.e., gove rnment hospitals, Malcolm Hall) Laurel vs. Garcia, 187 SCRA 797 F: Pres Aguino issued an EO selling Roponggi lot since it was not used by the em bassy anymore H: lot was not validly withdrawn from the public domain there must be a law auth orizing such There can be no doubt that the Roponggi property is of public dominion unless it is convincingly shown that the property has become patrimonial. It is outside the commerce of man and cannot be alienated. Roponggi property is correctly classified under Art. 420(2) as property belong ing to the State and intended for some public service. The fact that the Ropongg i property has not been used for a long time for actual embassy service does not automatically convert it to a patrimonial property. Any such conversion happens only if the property withdrawn from public use. It remains a public domain until there is a formal declaration or the part of the government to withdraw it from being such. An abandonment of the intention to use the Roponggi property for public servic e and to make it patrimonial property under Art. 422 must be definite. Abandonme nt cannot be inferred from the non-use alone specifically if the non-use was att ributable not to the government s own deliberate and indubitable will but to a lac k of financial support to repair and improve the property. Abandonment must be c ertain and positive act based on correct legal premise. The mere transfer of the Philippine Embass is not relinquishment of the Ropong gi property's original purpose. REPUBLIC vs. GONZALES (199 SCRA 788) F: Gonzales leased government s land. Now, gov t wants to terminate the leased to co nstruct a parking lot. Gonzales contended that setting aside of the lots for par king purposes does not redound to the benefit of the public -- only those certai n privileged individuals, i.e., those who have cars, can avail of the parking fa cility without any advantage accruing to the general public H: use it still public since it not the actual use which is the basis but the op portunity to use The conception urged by appellants to restrict property reserved for public use to include only property susceptible of being used by a generally unlimited number of people is flawed and obsolete, since the number of the users is not th e yardstick in determining whether property is properly reserved for public use or benefit. To constitute public use, the public in general, should have equal o

r common rights to use the land or facility involved on the same terms however l imited in the number of people who can actually avail themselves of it at a give n time. There is nothing in the law which excludes non-car owners from using a w idened street or a parking area should they in fact happen to be driving cars, t he opportunity to avail of the use thereof remains open for the public in genera l. Are rivers whether navigable or not, properties of public dominion? It would seem that Article 420 makes no distinction. However, jurisprudence s ay that only navigable rivers are part of public domain: a. In the case of Palanca v. Commonwealth 40 OG 148, the Supreme Court said: "Th e river Viray and the estero Sapang Sedoria, being navigable, useful for commerc e, for navigation, and fishing, they have the character of public domain." b. In the case of Taleon vs. Secretary of Public Works, L-24281, May 16, 1967, i t was held that if a river is capable in its natural state of being used for com merce, it is navigable in fact, and therefore, becomes a public river; c. In the case of Martinez v. Court of Appeals, 56 SCRA 647, it was held that na vigable rivers are outside the commerce of man and, therefore, cannot be registe red under the Land Registration Law. If converted into fishponds, the latter can be demolished notwithstanding the Title, for said Title cannot convert the stre ams into private ones. Mun of Cavite v. Rojas (30 P 602) F: The Municipal Council of Cavite in 1907 withdrew and excluded from public use a part of its plaza in order to lease the same for the benefit of defendant Roj as. Was the lease valid? H: The lease is null and void, because streets and plazas are outside the commer ce of man, since they are properties for public use. In creating the lease, the municipality exceeded its authority because it did something it was not empowere d to do. City of Manila v. Garcia (L-26053; 2/21/1967) F: Mayor gave lease contracts to squatter of public land requiring them to pay n ominal rent. The city now wants to used the land to expand a school H: The squatters may be ejected for they never really became tenants. The property being a public one, the Manila mayors did not have the authorit y to give permits, written or oral, to the squatters. The permits granted are th erefore considered null and void. Art. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property. Patrimonial property may be acquired by prescription by private individuals or c orporations Article 422. Property of public dominion, when no longer intended for public, sh all form part of the patrimonial property of the state. When change takes effect: B Property of public dominion ceases to be such and becomes private property of the Suite only upon declaration by the government, through the legislative or ex ecutive departments, to the effect that it is no longer needed for public use or public service. B If the property has been intended for such use or service and the government h as not devoted it to other uses, or adopted any measure which amounted to a with drawal thereof from public use or service, the same remains property for public use or service (Capitulo vs. Aquino, 53 OG 1477) Who shall declare? B In the case of Faustino vs. Dir. of Lands, L-12958, May 30, 1960, the Supreme

Court, citing Natividad vs. Dir. of Lands, CA 37 OG 2905 said that only the exec utive and possibly the legislative departments have the authority and power to m ake the declaration that any land so gained by the sea is not necessary for purp oses of public utility, or for the establishment of special industries. B If no such declaration has been made by the said departments, the lot in quest ion forms part of the public domain. Consequently, until there is made a formal declaration on the part of the government through the executive department or th e legislative, the parcel in question continues to be part of the public domain and cannot be subject to acquisitive prescription COACO vs. Bercilles, 66 S 481 F: Cebu Oxygen bought an abandoned road with the consent of the council and mayo r. Court refused the land s registration saying it is part of public domain thus o utside the commerce of man. H: council can withdraw portion of the street from public use; property was conv erted to patrimonial property Where a portion of the city street is withdrawn from public use by the city council, which under the city charter is empowered to close any city road. Stree t, or alley, boulevard, avenue, park or square, the property thus withdrawn from public service become patrimonial property and be used or conveyed for any purp ose for which any real property belonging to the city may be lawfully used or co nveyed. Under Art. 422 of the CC, "property of public dominion, when no longer inten ded for public service, shall form part of the patrimonial property of the State . International Hardwood v. Univ. of the Philippines, 8/13/1991 F: Congress established a central experiment station for UP within the area cove red by timber license of IH. IH contends that UP cannot supervise the forest H: UP can supervise since the land has been withdrawn from public domain When it ceded and transferred the property to UP, RP completely removed it from the public domain and, more specifically, in respect to the areas covere d by the timber license of IH, removed and segregated it from a public forest; i t divested itself of its rights and title thereto and relinquished and conveyed the same to the UP; and made the latter the absolute owner thereof, subject only to the existing concession. Insofar as the RP is concerned, all its rights as grantor of the license were effectively assigned, ceded and conveyed to UP as a consequence of the abo ve transfer of full ownership. Having been effectively segregated and removed from the public domain or from a public forest and, in effect, converted into a registered private woodla nd, the authority and jurisdiction of the Bureau of Forestry over it were likewi se terminated. Art. 423. The property of provinces, cities and municipalities is divided into p roperty for public use and patrimonial property. Art. 424. Property for public use, in the provinces, cities and municipalities c onsist of the provincial roads, city streets, and municipal streets, the squares , fountains, public waters, promenades and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, w/o prejudice to the provisions of special laws. Properties of LGU s may also be classified into the following: 1. those acquired w/ their own funds (in their private or corporate capacity) he re the LGU has ownership and control 2. those not acquired w/ their own funds a. these are subject to the control and supervision of the state b. are held by the LGU in trust for the state for the benefits of the inhabitant

s Rules w/ Respect to Properties for Public Use 1. They may not be leased to private individuals 2. They cannot be attached or levied upon Art. 425. Property of private ownership, besides the patrimonial property of the State and LGU s, consist of all property belonging to private persons, either col lectively or individually. Art 426. Whenever by provision of the law, or an individual declaration, the exp ression immovable things or property, or movable things or property is used, it sha ll be deemed to include, respectively, the things enumerated in Chapter 1 and 2. Whenever the word muebles or furniture, is used alone, it shall not be deeme d to include money, credits, commercial securities, stocks, and bonds, jewelry, scientific or artistic collections, books, medals, arms, clothing, horses, or ca rriages and their accessories, grains, liquids and merchandise, or other thins w hich do not have as their principal object the furnishing or ornamenting of a bu ilding, except where from the context of the law, or the individual declaration, the contrary clearly appears. OWNERSHIP IN GENERAL: Art 427: Ownership may be exercised over things or rights. A person has the righ t to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restriction except those imposed by the law. Definition: Ownership is the independent and general right of a person to: a. control a thing particularly in his possession b. enjoy c. dispose d. recover subject to no restrictions except those imposed by law Kinds of Ownership 1. Full includes all the rights of an owner 2. Naked ownership where the right to use the fruits has been denied a. Naked + usufruct = full b. Usufruct = full naked c. Naked = full usufruct 3. Sole where the ownership is vested in only one person 4. Co-ownership when it is vested in 2 or more owners Art. 428. The owner has the right to enjoy and dispose of a thing w/o other limi tations than those established by law. The owner also has the right of action against the holder and possessor of the thing in order to recover it. (impt) LIMITATIONS ON OWNERSHIP 1. imposed by law = easement of right of way; 2. imposed by state = police power; power of taxation, power of eminent domain; 3. imposed by owner = in cases of lease, the owner cannot in the meantime physic ally occupy the property, (also pledges); 4. imposed by grantor = the donor may prohibit the donee from partitioning the p roperty for a period not exceeding 20 years; SELF-HELP doctrine: Art. 429. The owner of lawful possessor of a thing has the right to exclude any

person from the enjoyment and disposal thereof. For this purpose, he may use for ce as may be reasonably necessary to repel or prevent an actual or threatened un lawful physical invasion or usurpation of his property. Taken from Article An act impelled essity consists in ther, an actual or 227 of the German Civil Code which provides: by legitimate necessity shall not be unlawful. Legitimate nec the defense indispensable to repel, personally or through ano unjust situation.

Principle of Self-Help: B It is lawful to repel force by means of force. It implies that the state of th ings to be defended enjoys juridical protection. B It is sort of self-defense, where the use of such necessary force to protect p roprietary or possessory rights constitutes a justifying circumstance under the Penal Code; The actual invasion of properly may be: a. mere disturbance of possession: force may be used against it at any time as l ong as it continues, even beyond the prescriptive period for an action of forcib le entry. Thus if Pedro opens a ditch in Juan's land, the latter may close it or cover it by force at any time b. real dispossession: force, to regain possession can only be used immediately after the dispossession. Thus, if Juan without Pedro s permission picks up a book belonging to the latter and runs off with it, Pedro can pursue Juan and recover the book by force. Nature of the aggression: B The aggression must be illicit or unlawful. o The right to self-help is not available against the exercise of right by anoth er, such as when the latter executes an extra-judicial abatement of nuisance. o Neither can it be used against the lawful exercise of the functions of a publi c official, such as a sheriff attaching property. B The act, however, need not be illicit from the subjective point of view. o It is immaterial that the aggression is executed because of error of fact or l aw; o the existence of a danger of violation of law and right is sufficient, for the possessor is not in a position to wait for the error of the aggressor, he has t o make a quick decision. Note: There is no obligation to indemnify for the damage caused by the defense a gainst unlawful aggression or against dangerous objects. 1. In the case of People vs. Polinar, attack against one s property must be couple d w/ an attack against the person for it to be justified 2. BUT in recent cases such as in People vs. Narvaez, the SC ruled that there is no necessity of an attack against one s person to justify his acts of defending h is property 3. This is in line w/ the Doctrine of Self-Help and under Art. 429 force may be used even w/o threatened bodily danger provided that defense and NOT vengeance, is involved Art. 430. Every owner may enclose or fence his land or tenement by means of wall s, ditches, live or dead hedges, or by any other means w/o detriment to servitud es constituted thereon. Art. 431. The owner of a thing cannot make use thereof in such manner as to inju re the rights of a 3rd person. ACTS IN A STATE OF NECESSITY:

Article 432. The owner of a thing has no right to prohibit the interference of a nother with the same, if the interference is necessary to avert an imminent dang er and the threatened damage, compared to the damage arising to the owner from t he interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. A This article, following the same principle of self-help contained in the secon d part of Article 429, allows the use of defensive force to preserve an existing situation, as against an external event which the passive subject is entitled t o repel as much as an unlawful aggression by another. A Superior to the Doctrine of Self-Held A Examples of danger contemplated by this article are o the attack of animals, o the spread of fire, o the threat of flood, etc. A The attacking animal, belonging to another may be killed by the victim, a hous e in the path of a fire may be demolished; and a dike may be destroyed at one po int to prevent a flood over other places. A The law permits the injury or destruction of things belonging to another provi ded this is necessary to avert a greater danger.

Requisites: 1. Existence of an evil sought to be avoided; 2. The injury feared is greater than that done to avoid it; 3. That there be no other practical and less harmful means of preventing it; 4. The means employed is necessary and indispensable to avert danger Civil Liability: 1. Art 429 = no civil liability 2. Art 432 = the person/s benefited are civilly liable Effect of mistake A The right to act in a state of necessity depends upon the objective existence of the danger with the requisites provided by law. A If through error, one believed himself to be in a state of necessity, or used means in excess of the requirements, his acts would be illicit and the owner of the property may use against him the defensive force authorized in Article 429. Effect of negligence A The law does not require that the person acting in a state of necessity be fre e from negligence in the creation of such situation. A Thus, if a person picks up an unknown object in a drug store and eats it, thin king it to be candy, and it turns out to be poison, he can lawfully drink any an tidote he may find in the store, even without the consent of the owner Basis of liability The obligation to indemnity does not depend upon imputability. The basis of t he liability is the benefit derived. Conflict of rights The right of self-help under Article 420 is not available against an act in a state of necessity. Art. 433. Actual possession under the claim of ownership raises a disputable pre sumption of ownership. The true owner must resort to judicial process for the re covery of the property.

Art. 434. In an action to recover, the property must be identified, and the plai ntiff must rely on the strength of his title and not on the weakness of the defe ndant s title. Art. 435. No person shall be deprived of his property except by competent author ity and for public use and always upon payment of just compensation. Should this requirement be not first complied w/, the courts shall prote ct and, in the proper case, restore the owner in his possession. Just compensation A The fair and full equivalent for the loss sustained (Mla. Railroad vs. Velasqu ez 32 Phil 286) A The market value of the condemned property plus consequential damages less con sequential benefits (Mla. Railroad vs. Fabie, 17 Phil. 208) A Incidental or consequential benfits may be set off only against the consequent ial damages, and not against the basic value of the property taken A The determination of just compensation in eminent domain cases is a JUDICIAL F UNCTION. A Value determined at the time of the TAKING or at the time of the FILING of the cases, whichever comes first. EPZA vs. Dulay, 149 SCRA 305 F: PD 1533 imposes a maximum amount for compensation for expropriated property H: PD is invalid Just compensation means the equivalent for the value of the property at the time of the taking. Anything beyond that is more and anything short of that is l ess than just compensation. It means a fair and full equivalent for the loss sus tained, which is the measure of the indemnity, not whatever gain would accrue to the expropriating entity. The method of ascertaining just compensation under th e decrees constitutes impermissible encroachment or judicial prerogatives. It te nds to render the Court inutile in a matter which under the Constitution is rese rved to it for final determination. Art. 436. When any property is condemned or seized by competent authority in th e interest of health, safety or security, the owner thereof shall not be entitle d to compensation, unless he can show that such condemnation or seizure is unjus tified. (police power) Art. 437. The owner of a parcel of land is the owner of its surface and of ever ything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and su bject to special laws and ordinances. He cannot complain of the reasonable requi rements of aerial navigation. Art. 438. Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of th e State or any of its subdivisions, and by chance, one-half thereof shall be all owed to the finder. If the finder is a trespasser, he shall not be entitled to a ny share of the treasure. If the things found be of interest to science of the arts, the State may acqu ire them at their just price, which shall be divided in conformity with the rule stated. Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of w hich does not appear. Discovery is by chance = means by good luck implying that one who intentionally lo oks for treasure is embraced in the provisions

Onehe alone owns the Share own property treasure By Whom Treasure Found 1. s Owner 2. if hesis married bethe treasureunknown (Artthe conjugal property 1. The deposit must Stranger Property Another hidden and belongs to 439). 2. There is no lawful owner. 3. Discovery is by chance (Art 438). Treasurerfinderor not permission from owner mun.;tProp municipalbe a or artistically for treasure Foundlaborerascientificallyemployed to look valuable On Discoverer Finds treasuremust Trespasser laborer Owner onlyisbeen Laborer hadtenant no plaza Paid underfinderprecisely by Tenant, discovered treasure trespasser 4.owner;Lessee,withusufructuarychance Gov finder s share will be given to the gov t after payment of just compensation RIGHT OF ACCESSION Article 440: The ownership of property gives the right by accession to everythin g which is produced thereby, or which is incorporated or attached thereto, eithe r naturally or artificially Accession: 0 The right of a property owner to everything which is produced thereby or which is incorporated or attached thereto. 0 To the owner of the principal belongs the accessory" 0 Accession is not a mode of acquiring ownership because o because accession presupposes a previously existing ownership over the princip al o It is a right implicitly included in ownership o It is one of the attributes or characteristics w/c will make up the concept of dominion of ownership Two kinds of ACCESSION: 1. Discreta (Fruits) = the right pertaining to the owner of a thing over everyth ing which is produced thereby 2. Continua (Incorporated) = the right of the owner of a thing over everything w hich is incorporated or attached thereto, either naturally or artificially Rents Those of Spontaneous Civil produced by lands of leases; young of other products of Industrial products Natural buildings; of theany kind through cultivation or life animals DISCRETA (Produced) Price ofsoil; theAmount andperpetualor labor annuities Labor; Confusion Engraftment, Alluvium, Building, Specification Mixture Adjunction attachment, Natural (liquid), Commixtion (solid) IndustrialAvulsion, Change Personal Planting, Sowing of course of rivers, Formation of islands Real Materials CONTINUA (Incorporated) weaving, painting, writing General Rule: Art. 441. To the owner belongs 1. The natural fruits 2. The industrial fruits 3. The civil fruits.

Instances when the owner of land does not own the fruits: 1. Possessor in good faith of the land. (He owns the fruits already received [Ar t 544(1)); 2. Usufructuary (Art 566); 3. Lessee gets the fruits of the land (Art 1654; of course, the owner gets the c ivil fruits in the form of rentals); 4. In the contract of antichresis, the antichretic creditor gets the fruits, alt

hough of course, said fruits should be applied first, to the interest, if any is owing, and then to the principal amount of the loan (Art 2132) Art. 442. Natural fruits are the spontaneous products of the soil and the young and other products of animals. Industrial fruits are those produced by lands of any kind through cultiv ation or labor. Civil fruits are the rents of buildings, the price of leases of lands an d other property and the amount of perpetual or life annuities or other similar income. 0 The offspring of animals belong to the owner of the female because: a. sometimes it is not known who the male is b. during the pregnancy, it is the owner of the female who is greatly burdened b y expenses 0 A leased a female animal from B. During the period of lease, the animal produc ed gave birth. Who owns the young? 0 A, because a lease contract is onerous. Here, by virtue of the lease contract, the general rule that the owner of the female is the owner of the young, should give way. 0 Suppose in the above problem, A was merely given the animal by way of commodat um. Would the answer be the same? 0 No. This time, the owner of the female retains ownership in view of the gratui tous contract. Talisay Milling, in order to obtain a loan from the bank, requested one of its sugar planters, X, to mortgage X s land as security. As a reward, Talisay g ave X a bonus. The bonus was later claimed by: a. the creditor of X b. the bank w/c reasoned out that as mortgagee, it was entitled to the fruit and that the bonus should be considered as civil fruits Who is entitled to the bonus? ANS: The creditor of X. The bank as mortgagee is not entitled to the fru it of the land mortgaged. Moreover, the bonus is not civil fruits. It is not inc ome obtained or derived from the land itself, but income obtained as compensatio n for the risk assumed by the owner. Art. 443. He (landowner) who receives the fruits has the obligation to pay the e xpenses made by a 3rd person (in bad faith) in their production, gathering and p reservation. 0 Art. 449 refers only to existing or ungathered crops, because here, the landow ner acquires the fruits w/o indemnifying the planter by the principle of accessi on continua. 0 Art. 443 applies when the crops have already been gathered hence accession con tinua cannot apply therefore the principle of accession does not apply here 1. Art. 443 does not apply when the planter is in good faith because if he is, h e is entitled to the fruits already received, hence there is no necessity of rei mbursing him 2. The refundable expenses: a. must have been used for production, gathering or preservation of the fruits a nd NOT for the improvement of the property b. must have been necessary and not luxurious or excessive Art. 444. Only such as manifest or born are considered as natural or industrial fruits. With respect to animals, it is sufficient that they are in the womb of the mo

ther, although unborn. Cannot & pro-rated Can be be Industrial are real While pro-rated Accruestill Naturaldaily and are therefore considered personal prop Civil Fruitsgrowing, Fruits prop RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY: General Rule: Article 445: Whatever is built, planted or sown on the land of another and the i mprovements or repairs made thereon, belong to the owner of the land, subject to the provisions in the following articles. This article deals with accession continua more specifically accession indust rial BUILDING, PLANTING, SOWING BASIC PRINCIPLES (accession continua/accession industrial) 1. To the owner of the principal (land for example) must belong also the accessi ons -- in accordance with the principle that the "accessory follows the principa l." 2. The union or incorporation must, with certain exception, be effected in such a manner that to separate the principal from the accessory, would result in subs tantial injury to either; 3. He who is in good faith may be held liable but he should not be penalized; 4. He who is in bad faith may be penalized. 5. No one should enrich himself unjustly at the expense of another 6. Bad faith of one party neutralizes the bad faith of the other so both should be considered in good faith Art. 446. All works, sowing and planting are presumed made by the owner an at his expense, unless the contrary is proved.

RIGHTS OF THE LANDOWNER 1st case: Landowner is the builder/planter/sower and is using the materials of another. (mem) Article 447: The owner of the land who makes thereon personally or through another, plantings, constructions or works with the materials of another shall pay their value; and if he acted in bad faith, he shall also be obliged to the r eparation of damages. The owner of the materials shall have the right to remove them only in case h e can do so without injury to the work constructed, or without the plantings, co nstructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages. Good OF OWNERFaithIS MATERIALS LANDOWNERTHE THE BUILDER/PLANTER/SOWER

Good Faith Can acquire the materials provided he pays for the value thereof. Has the: 1. Right to receive payment for value of the materials; OR 2. Limited right of removal if there would be no injury to work constructed, or Bad Faith without plantings or constructions being destroyed (Article 447) Good Faith Can acquire the materials provided he pays the value thereof plus damages. Has the: 1. Right to receive payment for value of materials plus damages; OR 2. Absolute right of removal of the work constructed in any event (whether or no Good Faith t substantial injury is caused) plus damages Can acquire the materials without paying for the value thereof and entitled to c Bad Faith onsequential damages due to the defects of the materials Loses the materials completely without receiving any indemnity (cannot even exer Treatright both are Bad Faithifof removalin goodsubstantial injury would be caused) cise as w/n faith. Good OF MATERIAL OWNERFaith LAND OWNER IS BUILDER/PLANTER/SOWER 1. Limited right of removal if there would be no injury to work constructed, or without plantings or constructions being destroyed (Article 447); or Good Faith Bad Faith 2. Right to receive payment for value of the materials 1. Right to receive payment for value of materials plus damages; or Good Faith 2. Absolute right of removal of the work constructed in any event plus damages Bad Faith Right to acquire the improvements without paying indemnity plus damages Bad Faith (Same as though acted in good faith under Article 453) (Same as though acted in good faith under Article 453) Z Under Article 447, the landowner himself (as distinguished from Article 448) m akes the PLANTINGS, CONSTRUCTIONS OR WORKS on his land, BUT with the materials of another person. Z In such a situation, a NEW THING is produced (i.e. something that is built or constructed on a land by the landowner with the materials of another), but does not result in co-ownership. The owner, therefore, of the materials does not beco me part owner of the new thing. He is only entitled to recover their value. Z In short, the law gives the LANDOWNER, who acted in good faith, the right to A PPROPRIATE the new thing provided that he INDEMNIFIES the owner of the materials . Z Indemnification for damages shall comprehend not only the value of the loss su ffered but also that of the profits which the obligee failed to realize. May the land owner builder/planter/sower choose to return the materials instead of reimbursing their value even without the consent of the owner of the material s? It depends: 1. If no damage has been made to the materials, or they have not been transforme d as a result of the construction, they may be returned at the land owner s expens e. 2. If damage has been made or there has been transformation, they cannot be retu rned anymore. Suppose the land owner builder/planter/sower has already demolished or removed t he plantings, constructions or works, is the owner of the materials still entitl ed to claim them? There are different opinions on this matter but the best rule seems to be tha t the OM is still entitled to get them since the law makes no distinction. More over, the land owner may insist on returning them for evidently there is no acce ssion. Z In case of alienation by the landowner, the owner of the materials may go agai nst the new owner, because he is the one benefited by the accession (Pacific Far ms vs. Esguerra 30 SCRA 684)

Z Meaning of bad faith, good faith o The land owner builder/planter/sower is in good faith if he believes that the land belongs to him and he is ignorant of any defect or flaw in his title and he does not know that he has no right to use such materials. But when his good fa ith is coupled with negligence, he is liable for damages. o The land owner builder/planter/sower is in bad faith if he makes use of the la nd or materials which he knows belong to another. o The owner of the materials is in good faith if he did not know that another wa s using his materials, or granting that he did know, if he informed the user of the ownership and made the necessary prohibition. o The owner of the materials is in bad faith if he allows another to use the mat erials without informing him of the ownership thereof. 2nd case: Builder/Planter/Sower builds, plants, or sows on another s land using his own mate rials. (mem) Art 448: The owner of the land on which anything has been built, sown, or planted in good faith shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Article 546 a nd 548 or to oblige the one who built or planted to pay the price of the land, a nd one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent if the owner of the land does not choose to appropriate the building or trees after indemnity. The parties shall agree upon the terms of th e lease and in case of disagreement, the court shall fix the terms thereof. Z This article applies only if the builder, planter or sower is in good faith. Z See also Articles 454 and 447 Good Faith BUILDER/PLANTER/SOWER IS THE OWNER OF THE MATERIALS LAND OWNER Has the option to: 1. To appropriate or acquire whatever has been built, planted or sown after payi ng indemnity which includes necessary expenses and useful expenses. If he wishes to appropriate the luxurious improvement, he must also pay the luxu rious expenses. OR Good Faith Entitled to receive indemnity for necessary, useful and luxurious expenses (i f the land owner appropriates the luxurious improvements) and has a right of ret ention over the land without having to pay for the rent until the land owner pay s the indemnity Can remove useful improvements provided it does not cause any injury If the land owner does not appropriate the luxurious improvements, he can remo 2. To same provided there is no injury to the principal thing ve theobligate the builder/planter to pay the price of the land and the sower to pay the proper rent. However, the land owner cannot obligate the builder/ plan terTo purchasethe value of land is morevalue the building oris not considerably to buy if the land at fair market then when the value planting. more than the value of the builder or trees If the value of the land is considerably more than the value of the building o r trees, he cannot be compelled to buy the land; in such case, he shall pay reas onable rent if the land owner does not choose option 1. If he cannot pay the purchase price of the land, the land owner can require hi m to remove what has been built or planted. Bad Faith If he cannot pay the rent, the land owner can eject him from the land. To acquire whatever has been built, planter or sown by paying the indemnity plus Good Faith damages If land owner acquires whatever has been built, planted or sown, he must be in

demnified of the value plus damages If land owner does not acquire, he can remove whatever has been built or plant ed whether or not it will cause any injury and is entitled to damages. Good land owner does not acquire, he cannot insist on purchasing the land. If Faith Has the option: 1. To acquire whatever has been built, planter or sown without paying for indemn ity except necessary expenses for the preservation of the land only and luxuriou Bad Faith s expenses if he decides to acquire the luxurious ornaments plus damages Loses what has been built, planted or sown. Entitled to reimbursement for necessary expenses for the preservation of the l and but has no right of retention. Not entitled to reimbursement for useful expenses and cannot remove the useful improvements even if the removal will not cause any injury Not entitled to reimbursement for luxurious expenses except when the land owne r acquires the luxurious improvements, the value of which is the one at the time the land owner enters possession (the depreciated value) Can remove luxurious improvements if it will not cause injury and LO does not 2. To compel the builder/ planter to pay the price of the land and the sower to want to acquire them. pay the proper rent plus damages 3. To demand the demolition or removal of plus damages Must pay the price of the land or the rentthe work at the expense of the builder Must remove luxurious improvements if it will not cause injury and LO does not w /planter/ sower Treat acquire them. Bad Faith ant toas if both are in good faith. Good Faith BUILDER/PLANTER/SOWER IS THE OWNER OF THE MATERIALS LAND OWNER 1. Land owner can acquire the improvement by paying; or 2. Land owner can obligate builder/planter to buy the land or collect rent from sower. However land owner cannot obligate the builder/planter to buy if the va Good Faith lue of land is more then the building or planting. GoodFaith Bad Faith 1. Remove materials plus damages; or Good Faith 2. Demand payment for materials plus damages Options 1. Appropriate works without indemnity plus damages; or 2. Demolish plus damages; or 3. Compel BPS to buy land regardless of the value of the land and the BP, plus d amages Obligations 1. Land owner must pay for necessary expenses for Bad Faith 2. Land owner must pay BPS expenses under Article Bad Faith (Same as though acted in good faith under Article (Same as though acted in good faith under Article preservation. 443? if applicable 453) 453)

* The land owner is in good faith: 1. If he is ignorant of the builder/planter/sower s act 2. Even if he did know, he expressed his objection 3. If he believed that the builder/planter/sower has a right to construct, plant or sow ==> Otherwise, he shall be in bad faith. * The builder/planter/sower is in good faith if he thought that the land was his . Option of the LANDOWNER IS IN GOOD FAITH if the BPS is in Good Faith 1. RIGHT OF APPROPRIATION = To appropriate for himself anything that has been bu ilt, planted or sown upon the proper payment of indemnity (Ignao vs. lAC 1/18/91 ) a. Ownership over the thing built, sown, or planted does not pass to the landown er till after payment therefore has been given. b. In the meantime, the builder, planter or sower (who is in good faith) has the right of retention. (Martinez vs. Baganus, 28 Phil 500). 2. RIGHT TO COMPULSORY SELLING = To compel the builder to buy the land unless th

e value of the land be considerably more than the value of what has been built, planted or sown. a. In this situation, there is no right of retention because the planter, builde r or sower is the one required to pay (Bernardo vs. Bataclan 66 Phil 598). 3. LIMITED RIGHT OF REMOVAL = a. Can only be availed of when after having opted to sell the land to the BPS, t he BPS fails to pay the land b. Because if BPS cannot pay for the land, he should not be allowed to continue using it Z It is the landowner who has the option, not the BPS Z Once a choice is made by the landowner, it is generally irrevocable, thus, if the landowner has elected to get the building, but she is finally unable to pay for the indemnity or value of the building, she cannot afterwards elect to sell the land (Tayag vs. Yuseco, 97 Phil 712) IF THE BUILDER, PLANTER IS IN BAD FAITH and the Landowner in good faith): (Artic les 449, 450, and 451) 1. He loses what is built, planted or sown without right to indemnity (except ne cessary expenses for the preservation of the land (Article 452); 2. He may be required to demolish or remove what is built or planted or sown. 3. The builder may be compelled to pay the price of the land (whether or not the value of the land is considerably higher than the value of the house) and the s ower proper rent; 4. He is liable to pay damages. PECSON vs. CA (244 SCRA 407) F: Pecson failed to pay realty taxes thus his land was sold at a public auction to Nepomuceno and who in turn sold it to Nuguid. Pecson challenged the validity of the auction sale, contending that it did not include the sale of the apartmen t building. Naguid opted to pay Pecson the value of the building at P53, 000. Bu t Naguid contended that considering that the ownership of the lot is already unc ontested, the decision having become final and executory, the rents of the apart ment buildings should have been properly paid to him by the tenants instead of P ecson. (rents amounted to more than P53,000) H: By its clear language, Article 448 refers to a land whose ownership is claime d by two or more parties, one of whom has built some works, one sown or planted something. The building, planting or sowing may have been made in good faith or in bad faith. Article 448 does not apply to a case where the owner of the land i s the builder, sower or planter who then later loses ownership of the land by sa le or donation. Where the true owner himself is the builder of works on his own land, the issue of good faith or bad faith is entirely irrelevant. While Article 448 is not pertinent to the case at bar, nevertheless, the provision therein wi th respect to indemnity may be applied by analogy considering that the primary i ntent of Article 448 is to avoid a state of forced co-ownership. The objective of Article 546 of the Civil Code is to administer justice betw een the parties involved in such a way as neither one nor the other may enrich h imself of that which does not belong to him. It is therefore the current market value of the improvement which should he made the basis of reimbursement. A cont rary ruling would unjustly enrich the private respondents who would otherwise be allowed to acquire a highly valued income-yielding four-unit apartment building for a measly amount. The trial court also erred in ordering the petitioner to pay monthly rentals equal to the aggregate rentals paid by the lessees of the apartment building. S ince, the private respondents opted to appropriate the apartment building; the p etitioner is thus entitled to the possession and enjoyment of the apartment buil ding, until he is paid the proper indemnity, as well as of the portion of the lo t where the building was constructed. This is so, because the right to retain th e improvements while the corresponding indemnity is not paid implies the tenancy or possession in fact of the land which it is built, planted or sown. The petit

ioner not having been so paid, he was entitled to retain ownership of the build ing and, necessarily, the income there from (Mendoza vs. de Guzman, 54 SCRA 164) Art. 449. He who builds, plants or sows in bad faith on the land of another, los es what is built, planted or down, w/o right of indemnity. Art. 450. The owner if the land on w/c anything has been built, planted or sown in bad faith may demand: 1. the demolition of the work, or 2. that the planting or sowing be removed, in order to replace things in their f ormer condition at the expense of the person who built, planted or sowed; or he may compel 1. the builder or planter to pay the price of the land and 2. the sower the proper rent. Art. 451. In the cases of the 2 preceding articles, the landowner is entitled to the damage from the builder, planter or sower. Art. 452. The builder, planter or sower in bad faith is entitled to reimbursemen t for the necessary expenses of preservation of the land. Art. 453. If there was bad faith, not only on the part of the person who built, planted and sowed on the land of another, but also on the part of the owner of s uch land, the rights of one and another shall be the same as though both had act ed in good faith. It is understood that there is bad faith on the part of the landowner wh enever the act was done: 1. w/ his knowledge and 2. w/o opposition on his part. Art. 454. When the landowner acted din bad faith and the builder, planter or sow er proceeded in good faith, the provisions of Art. 447 shall apply. 3rd case: Builder/Planter/Sower builds, plants, or sows on another s land with materials own ed by third person Art. 455. If the materials, plants or seeds belong to a 3rd person who has not a cted in bad faith, the owner of the land shall answer subsidiarily for their val ue and only in the event that the one who made use of them has no property w/ w/ c to pay. This provision shall not apply if the owner makes use of the right grant ed by Art. 450. If the owner of the materials, plants or seeds has been paid by the buil der, planter or sower, the latter may demand from the landowner the value of the materials and labor. Good OF THE OWNERFaith BUILDER/PLANTER/SOWER LAND OWNER MATERIALS Has the option 1. To acquire whatever has been built, planted or sown provided he pays the inde mnity (which includes the value of what has been built, planted or sown plus val Good the ue ofFaithmaterials) To receive indemnity from the land owner and has a right of retention over the l Good Faith and until the land owner pays To receive indemnity from the builder/planter/sower who is principally/ primaril y liable. If the builder/ planter/sower is insolvent, then demand indemnity fro m land owner who is subsidiarily liable. But has no right of retention against 2. builder/planter/sower planter/sower to buy the owner theTo oblige the builder/ and more so with the landland unless the value thereof To buy the land morefrom the builder/planter/sower only. The land owner has no isreceive indemnity than the value of the building or trees considerably

subsidiary liability. But has right of retention. OR To remove materials if there will be no injury on the building or trees AND Has a material rent lien against the builder/planter/ sower for the payment of t Good Faith he value of the materials Has the option 1. To acquire whatever has been built, planted or sown provided he pays the inde mnity (which includes the value of what has been built, planted or sown plus val Good the ue ofFaithmaterials) To receive indemnity from the land owner and has a right of retention over the l Bad Faith and until the land owner pays Whatever is the choice of the land owner 1. He loses the materials in favor of the builder/planter/ sower AND 2. He has no right to receive indemnity from the BPS To oblige the builder/ planter/sower to buy the land unless the value thereof Goodconsiderably To buy the land more than the value of the building or trees is Faith Has the option 1. To acquire whatever has been built, planted or sown without paying indemnity Bad Faith except necessary expenses, if he should acquire luxurious improvements Loses what has been built, planted or sown but he is entitled to be indemnified for necessary expenses and luxurious expenses should the land owner acquire luxu rious ornaments Bad Faith Has no right of removal even if it will not cause any injury (Since both builder/planter/ sower and the owner of the materials are in bad fai th, treat them as if both in good faith) Whatever is the choice of the land owner, he has the right to receive indemni ty for the value of the materials from the builder/ planter/sower only. The lan d owner has no subsidiary liability whatsoever. If land owner chooses option 1, he has no right to remove materials even if t here will be no injury. If land owner chooses option 2, he has the right of removal provided it does not cause any injury to the property to which it is attached. Has liability for damages to whoever ends up owning the building for the infe 2. To oblige the builder/ rior quality of materials.planter to pay the price of the land and the sower to Bad Faith Cannot proper or 3. thedo price of the it To To theanythingremove what he must remove paypaydemolish rentaboutlandsohas been built or planted To acquire what has been built, planted or sown by paying the indemnity plus dam Good Faith ages to builder/planter/ sower To receive indemnity from land owner plus damages Good Faith Cannot insist on purchasing the land To receive indemnity for value of materials from builder/planter/sower principal ly or from land owner in case the builder/ planter/sower is insolvent (subsidiar Bad Faith y liability) To acquire what has been built, planted or sown by paying the indemnity plus dam Good Faith ages to builder/planter/ sower To receive indemnity from land owner plus damages Bad Faith Cannot insist on purchasing the land No right to receive indemnity for value of materials from builder/ planter/sower nor from land owner who ends up owning the building or trees. Good OF THE OWNERFaith BUILDER/PLANTER/SOWER LAND OWNER MATERIALS 1. If the owner of the materials does not remove the materials and the builder/ planter/ sower pays, the land owner can acquire the improvement by paying the b uilder/planter/ sower

2. If the owner of the materials does not remove the materials, and the builder /planter/ sower pays, the land owner can obligate the builder/planter to buy th e land or collect rent from sower. However the land owner cannot o bligate the builder/planter to buy if the value of land is more then the building or planting. Good Faith 3. The land owner is subsidiarily liable to the owner of the materials. Good Faith 1. Limited right of removal if there would be no injury to work cons tructed, or without plantings or constructions being destroye d (Article 447); or 2. Right to receive payment for value of the materials from builder/ planter/ sower. Land owner is subsidiarily liable. Good Faith 1. Land owner can acquire the improvement by paying; or 2. Land owner can obligate builder/planter to buy the land or collect rent from sower. However land owner cannot obligate the builder/ planter to buy if the va lue of land is more then the building or planting. Good not 3. LOFaithsubsidiary liable for cost of materials Keep what was built, planted or sown without indemnity to the owner of the mater Bad plus ialsFaith damages from the owner of the materials Good Faith Lose the materials to the builder/planter/sower without right to indemnity Options 1. Appropriate works without indemnity plus damages; or 2. Demolish plus damages; or 3. Compel builder/planter to buy land regardless of the value of the land and th e sower to pay rent, plus damages Obligations 1. Land owner must pay for necessary expenses for preservation. 2. Land owner must pay builder/planter/sower expenses under Article 443* if app Bad Faith licable Bad Faith Bad Faith Right to receive payment for value of the materials Bad Faith (Same as though acted in good faith under Article 453?) Bad Faith (Same as though acted in good faith under Article 453) Bad Faith (Same as though acted in good faith under Article 453) Subsidiarily liable to the owner of the materials for value of materia Good ls Faith 1. Remove improvements plus damages against the land owner; or Good Faith 2. Demand payment for improvement plus damages 1. Remove materials if possible without injury 2. Collect value of materials from builder/planter/ sower. Land owner is subsid Bad Faith iarily liable 1. If the owner of the materials does not remove the materials and the builder/ planter/sower pays, the land owner can acquire the improvement by paying the bui lder/planter/sower 2. If the owner of the materials does not remove the materials, and the builder /planter/sower pays, the land owner can obligate the builder/planter to buy the land or collect rent from the sower. However, the land owner cannot obligate t he BP to buy if the value of land is more then the building or planting. Good Faith Bad Faith 3. The land owner is subsidiarily liable to the owner of the materials. 1. Right to receive payment for value of materials from the builder/planter/sowe r and the land owner is subsidiarily liable plus damages; or 2. Absolute right of removal of the work constructed in any event plus damages Good Faith 1. If the owner of the materials does not remove pays, the land owner can acquir e the improvement by paying the builder/ planter/sower. 2. If the owner of the materials does not remove the materials, and the builder , planter or sower pays, the land owner can obligate the builder/planter to buy the land or collect rent from sower. However the land owner cannot obligate th

e builder/planter to buy if the value of land is more then the building or plan ting. Bad Faith 3. Land owner is subsidiarily liable to the owner of the materials. Good Faith 1. Remove materials if possible without injury plus damages against builder/ pla nter/sower. 2. Collect value of materials from builder/planter/sower plus damages against th e builder/planter/sower. The land owner is subsidiarily liable for value of the materials Bad Faith Good Faith 1. Right to acquire the materials without paying indemnity plus damages 2. Remove improvement plus damages; or Bad Faith 3. Demand payment for improvement plus damages Loses right to materials without right to indemnity Art. 456. In the cases regulated in the preceding articles, good faith does not necessarily exclude negligence, w/c gives right to damages under Art. 2176. ALLUVIUM: Art 457: To the owners of land adjoining the banks of rivers belong the accretio n which they gradually receive from the effects of the current of the waters. This article applies also to creeks, streams, lakes (although the soil deposi ted may not be called alluvium.) Forms of accession natural: ! Alluvium, ! avulsion, ! change of course of rivers, ! formation of islands Alluvium The soil deposited or added to (accretion) the lands adjoining the banks of r ivers and gradually received as an effect of the current of the waters. By law, the accretion is owned by the owner of the estate fronting the river bank (ripar ian owner). Accretion The process whereby soil is deposited, alluvium is the soil deposited on rive r banks. Essential requisites of alluvium: 1. The deposit should be gradual and imperceptible as a process (natural); 2. Cause is the current of the river (and not due to works expressly designed fr o the purpose; does not apply to accretion by man-made means (Republic vs. CA 13 2 SCRA 154)); 3. Current must be that of a river (if lake, the deposit may not be called alluv ium but the principle is the same, (Art. 84 Spanish Law on Waters); if the sea, the deposit belongs to the State); 4. The river must continue to exist (otherwise, if the river disappears, Article 58 PD 1067, Art 461 CC. shall apply); and 5. The increase must be comparatively little. ! The riparian owner may not necessarily make an express act of possession, it b eing that the accretion is automatic the moment the soil deposit appears; (Agne vs Director 181S793) ! On the other hand, an alluvial deposit does not automatically become registere d land simply because the lot which receives it is covered by a Torrens title. A

lthough the owner of the land on which the alluvial deposit is made becomes auto matically the owner of the alluvial deposit, the law not requiring any act of po ssession on his part from the moment the deposit becomes manifest. Still ownersh ip of a piece of land is one thing and registration under the Torrens System is another. In order that the alluvial deposit may be entitled to the protection of imprescriptibility, the same must be placed under the operation of the Land Reg istration Law. An unregistered alluvial property is therefore subject to acquisi tion through prescription by third person (Grande vs. CA, 6-30-62) ! In Zapanta v. Director (10/30/62), it was held that accreted lands adjoining n on-navigable and non-floatable rivers which are formed gradually as a result of the setting up or erection of fish traps belong to the riparian owner and not to the public domain, in the absence of evidence showing that the setting-up of fi sh traps was expressly intended or designed by the riparian owner to cause or br ing about accretion. Republic v. CA (L-61647; 10/12/1984) F: CFI and CA ordered 4 hectares of land to be registered to Tancinco s as these w ere the results of accretion H: land cannot be registered since the cause of accretion was man-made; land was even portions of the bed of Meycauayan river, thus part of public domain The requirement that the deposit should be due to the effect of the curr ent of the river is indispensable. This excludes from Art 457 of NCC all deposit s caused by human intervention. Alluvion must be the exclusive work of nature. The reason behind the law giving the riparian owner the right to any land or alluvion deposited by a river is to compensate him for the danger of loss that h e suffers because of the location of his land. If estates bordering on rivers ar e exposed to floods and other evils produced by the destructive force of the wat ers and if by virtue of lawful provisions, said estates are subject to encumbran ces and various kinds of easements, it is proper that the risk or danger which m ay prejudice the owners thereof should be compensated by the right of accretion. Hence, y special e private ere meant structive the riparian owner does not acquire the additions to his land caused b works expressly intended or designed to bring about accretion. When th respondents transferred their dikes towards the river bed, the dikes w for reclamation purposes and not to protect their property from the de force of the waters of the river.

FERRER VS. BAUT1STA (231S257) F: Ferrer claims ownership over the land by virtue of accretion while Bautista e qually assert ownership over the property on account of long occupation and free patent issued in favor of them over the land H: Cites Article 457 of the Civil Code. Undoubtedly, plaintiff is the lawful owner of the accretion, she being the r egistered owner of Lot Not 1980 which adjoins the alluvial property. Alluvium gi ves to the owners of land adjoining the banks of rivers or streams any accretion which is gradually received from the effects of the current of water. The ratio nale for the rule is to provide some kind of compensation to owners of land cont inually exposed lo the destructive force of water and subjected to various easem ents. The Director of Lands has no authority to grant a free patent over the land that has passed to private ownership and which has thereby ceased to be public l and. Any title thus issued or conveyed by him would be null and void. Private re spondents, therefore, acquired no right or title over the disputed land by virtu e of the free patent since at the time it was issued in 1966, it was already pri vate property and not part of the disposable land of the public domain. Art. 458. The owners of estates adjoining ponds or lagoons do not acquire the l and left dry by the natural decrease of the waters, or lose that inundated by th em in extraordinary floods.

AVULSION Article 459: Whenever the current of a river, creek or torrent segregate from a n estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the owne rship of it, provided that he removes the same within two years. Avulsion The process whereby the current of a RIVER, CREEK, or TORRENT segregates from an estate on its bank a KNOWN PORTION of land and transfers it to another estat e. Avulsion implies a violent tearing or breaking away. It may also be referred to as delayed accession in the sense that if the owner abandons the soil involved, or fails to remove (not merely claim) the same within two years, the land to wh ich it had been attached acquires ownership thereof. ! Torrent means a violent, rushing or turbulent stream ! The law does not make a distinction whether the portion segregated is big or s mall. ! If the detached portion is not attached to another's land but simply is in the middle of the river, ownership still remains with the person whose land it had been detached. If the cause of the damage is due to artificial means, is the riparian owner ent itled to compensation? Ans: BAES vs. CA: If the riparian owner is entitled to compensation for the d amage to or loss of his property due to natural causes, there is all the more re ason to compensate him when the change in the course of the river is effected th rough artificial means. The loss to of Baes of the land covered by the canal was the result of a deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. It was therefore obligated to c ompensate the Baeses for the loss. Belongs Sudden or of processthegradual The depositthe owner of isidentifiable which it is Avulsion cannotthe identifiedbethe property was detached Alluviumtoabruptbe soilismayproperty toor verifiableattached portion segregated soil from whom seen Art. 460. Trees uprooted and carried away by the current of the waters belong t o the owner of the land upon which they may be cast, if the owners do not claim them within six months. If such owners claim them, they shall pay the expenses i ncurred in gathering them or putting them in a safe place. Art. 461. River beds which are abandoned through the natural change in the cour se of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adj oining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. (repealed by PD 1067 Sec 58) Change of the Course of the River: PD 1067 Art. 58. When a river or stream suddenly changes its course to traverse private lands, the owners of the affected lands may not: 1. compel the government to restore the river to its former bed; 2. restrain the government from taking steps to revert the river or stream to it s former course. The owners of the land thus affected are not entitled to compensation for an y damage sustained thereby. However, the former owners of the new bed shall be t he owners of the abandoned bed in proportion to the area lost by each. The owners of the affected lands may undertake to return the river or stream to its old bed at their own expense; Provided, That a permit therefore is secur ed from the Secretary of Public Works, Transportation and Communication and work pertaining thereto are commenced within 2 years from the change in the course o

f the river or stream. Art. 462. Whenever a river, changing its course by natural causes, opens a new bed through a private estate, this bed shall become of public dominion. Art. 463. Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains his own ership. He also retains it if a portion of land is separated from the estate by the current. Requisites for Art. 461 to apply: 1. The change must be sudden in order that the old river bed may be identified 2. The changing of the course must be more or less permanent 3. The change of the river bed must be a natural one 4. There must be definite abandonment from the government in taking steps to bri ng the river back to its old bed 5. The river must continue to exist If a river bed simply dries up without changing its course, then the dried up river bed belongs to the state since no private lands are injured. Formation of island Art. 464. Islands which may be formed on the seas within the jurisdiction of th e Philippines, on lakes, and on navigable or floatable rivers belong to the Stat e.

Art. 465. Islands which through successive accumulation of alluvial deposits ar e formed in non-navigable and non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of both margins if th e island is in the middle of the river, in which case it shall be divided longit udinally in halves. If a single island thus formed be more distant from one marg in than from the other, the owner of the nearer margin shall be the sole owner t hereof. Adjunction or conjunction (Articles 466-471) Art. 466. Whenever two movable things belonging to different owners are, withou t bad faith, united in such a way that they form a single object, the owner of t he principal thing acquires the accessory, indemnifying the former owner thereof for its value. Art. 467. The principal thing, as between two things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or pe rfection. [1](test of intention) Art. 468. If it cannot be determined by the rule given in the preceding article which of the two things incorporated is the principal one, the [2] thing of the greater value shall be so considered, and as between two things of equal value, that of the [3] greater volume. In painting and sculpture, writings, printed matter, engraving and lithograph s, the board, metal, stone, canvas, paper or parchment shall be deemed the acces sory thing. ([4] that which has greater merits = from the combined consideration of utility and volume) Art. 469. Whenever the things united can be separated without injury, their res

pective owners may demand their separation. Nevertheless, in case the thing united for the use, embellishment or perfecti on of the other, is much more precious than the principal thing, the owner of th e former may demand its separation, even though the thing to which it has been i ncorporated may suffer some injury. Art. 470. Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffe red. If the one who has acted in bad faith is the owner of the principal thing, th e owner of the accessory thing shall have a right to choose between the former p aying him its value or that the thing belonging to him be separated, even though for this purpose it be necessary to destroy the principal thing; and in both ca ses, furthermore, there shall be indemnity for damages. If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. Art. 471. Whenever the owner of the material employed without his consent has a right to an indemnity, he may demand that this consist in the delivery of a thi ng equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal.

* acquires Bad Faith GoodFaith ACCESSORY PRINCIPAL ADJUNCTION the accessory * can demandindemnify the value of the accessory liable to separation * can be compelled to separate objects even if it results in injury * is liable for damages * has the right to be indemnified for the value of the accessory * can demand separation if it does not cause injury * if value of the accessory is greater than the value of the principal * loses the even if plus damages d separationaccessoryit causes injury * must indemnify for the value of the principal * liable for damages Commixtion or Confusion (Articles 472, 473)

can deman

Art. 472. If by the will of their owners two things of the same or different ki nds are mixed, or if the mixture occurs by chance, and in the latter case the th ings are not separable without injury, each owner shall acquire a right proporti onal to the part belonging to him, bearing in mind the value of the things mixed or confused. Art. 473. If by the will of only one owner, but in good faith, two things of th e same or different kinds are mixed or confused, the rights of the owners shall be determined by the provisions of the preceding article. If the one who caused the mixture or confusion acted in bad faith, he shall l ose the thing belonging to him thus mixed or confused, besides being obliged to pay indemnity for the damages caused to the owner of the other thing with which his own was mixed.

By: Result Requirement How Mixed MIXTURE * will * chance

* accident * consent * good faith * things not separable w/o causing injury * co-ownership * respective interests are proportionate to the value of the value of the materi als Specification (Article 474) Art. 474. One who in good faith employs the material of another in whole or in part in order to make a thing of a different kind, shall appropriate the thing t hus transformed as his own, indemnifying the owner of the material for its value . If the material is more precious than the transformed thing or is of more val ue, its owner may, at his option, appropriate the new thing to himself, after fi rst paying indemnity for the value of the work, or demand indemnity for the mate rial. If in the making of the thing bad faith intervened, the owner of the material shall have the right to appropriate the work to himself without paying anything to the maker, or to demand of the latter that he indemnify him for the value of the material and the damages he may have suffered. However, the owner of the ma terial cannot appropriate the work in case the value of the latter, for artistic or scientific reasons, is considerably more than that of the material. * appropriates Bad Faith GoodFaith ACCESSORY PRINCIPAL SPECIFICATION new thing except when the materials are more precious than the ne w thing * must indemnify the value of materialsfor his labor loses his work w/o being indemnified * is liable for the value of the materials * is liable forthe new thing except when the value of the resultant work is more appropriates damages valuable * must indemnify the value of labor loses his material w/o being indemnified * is liable for the value of the work * is liable for damages 1. involves Specification Mixture Adjunction DISTINCTIONSat least 2 things 2. as a rule, accessory follows the principal 1. involves at least 2 things 3. the things joined retains their nature 2. as a rule, co-ownership results 1. may involve only 1 confused the form is changed 3. the things mixed orthing but may retain or lose their respective natures 2. as a rule, accessory follows the principal 3. the new object retains or preserves the nature of the original object Art. 475. ciated. In the preceding articles, sentimental value shall be duly appre

QUIETING OF TITLE Article 476. Whenever there is a ! cloud on title of real property or any interest therein, ! by reason of any o instrument, o record, o claim, o encumbrance, or o proceeding ! which is apparently valid or effective but is in truth and in fact o invalid, o ineffective, o voidable or unenforceable, and o may be prejudicial to said title, ! an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. Please observe that when the instrument is not valid on its face, the remedy doe s not apply. Kinds of Action Referred To: 1. Remedial an action to remove the cloud or to quiet title 2. Preventive an action to prevent a future cloud or doubt Requisites for Quieting of Title: 1. There must exist a cloud or doubt on the title because of an: a. instrument (deed or contract) b. record c. claim d. encumbrance e. proceeding 2. Which is APPARENTLY VALID on its face 3. But is truth and in fact it is: a. Invalid b. Ineffective c. Voidable d. Unenforceable e. Extinguished or terminated pr barred by extinctive prescription 4. And may be PRJUDICIAL to the title Test: Would the owner of the property in an action at law brought by the adverse pa rty and founded upon the instrument or claim, be required to offer evidence to d efeat a recovery? If proof is essential, the cloud exists; if proof is not needed, no cloud is cast. He must also show that he has interest on the property, aside from proving th e cloud. Example: Alma's land was sold by Roger (a forger) to B, a buyer in good faith. Alma s na me had been forged by Roger in the deed of sale. The sale on its face is apparen tly valid, with Alma's name indicted as the seller. In truth, however, the sale is defective because of the forgery. Alama s remedy is an action to quiet title.

SECUYA vs. VDA. DE SELMA 329 SCRA 244 F: Caballero executed an AGREEMENT OF PARTITION in favor to Sabellona. This lot was later sold by Sabellona to Secuya. Selma bought the lot, including the porti on occupied by Secuya s. So, Secuya brought an axn to quiet title H: the axn to quiet title is not proper bec. Secuya failed to prove they have in terest over the land In an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or an interest in, the subject real property likewise they must show that the deed, claim, encumbrance or proceeding that pur portedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. An action may also be brought to prevent a cloud from being cast upon title to teal property or any interest therein. In the case at bar, the action must fail because petitioners failed to show the requisite title. Petitioners allege that TCT No. 5679-C-120, issued in the n ame of private respondent Selma is a cloud on their title as owners and possesso rs of the subject property which is a 3,000 square-meter portion of Lot No. 5679 -C-120 covered by the TCT. But the underlying question is, do petitioners have t he requisite title that would enable them to avail themselves of the remedy of q uieting of title? Petitioners anchor their claim of ownership on two documents: the Agreement of Partition executed by Maxima Caballero and Paciencia Sabellona and the Deed o f Confirmation of Sale executed by Ramon Sabellona. However, the Court found tha t the agreement was not one of partition, because there was no property to parti tion and the parties were not co-owners. Rather, it is in a nature of a trust ag reement. Nature of the action This is an action in personam because it is directed against the defeated par ty or privies. It may also be considered "quasi in rem since it involves interest in a real p roperty. Note: An action to quiet title instituted against a co-owner is not res adjudicata as to the other co-owners if they were not made parties thereto. Does action to quiet title prescribe? Ans: It depends, if the plaintiff is in possession of the properly, the actio n does not prescribe. But if the plaintiff is not in possessing of the property, the action may prescribe (Fernandez vs. CA, 189 SCRA 780; Mamadsual vs. Moson, 140 S 83) PINGOL VS. CA 226 SCRA 118 F: Pingol sold his land to Donasco, on installment basis. Donasco immediately to ok possession of the property and constructed a house thereon and began paying t he installments until in 1976, he defaulted in his payments. In 1984, he died. P ingol refused to accept the balance from Donasco s heirs saying the complaint for specific performance should have been filed in 1976, and since the complaint was filed only in I988, or more than 10 years later, the action has prescribed. H: this is an action to quiet title thus impresciptible on the part of Donasco s h eirs since they possessed the land Although the plaintiffs complaint was denominated as one for specific perfor mance, it is in effect an action to quiet title. Prescription thus cannot be inv oked against the private respondents for it is aphoristic that an action to quie t title to property in one's possession is imprescriptible. The rationale for this rule has been aptly stated thus: "The owner of real p roperty who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person clai ming title to real property, but not in possession thereof, must act affirmative

ly and within the time provided by the statute. Possession is a continuing right to defend such possession. So it has been determined that an owner of real prop erty in possession has a continuing menace to his title. Such menace is compared to a continuing nuisance or trespass, not barred by statute until continued wit hout interruption for a length of time sufficient to affect a change of title as a matter of law. Bailon v. CA (160 S 738) F: one sister sold the land without the knowledge of others. This was only disco vered more than 30 years later H: buyer can only claim on the share of that one sister W/n the sale of one co-owner binds other co-owners Even if a co owner sells the whole property as his, the sale will affect onl y his own share but not those of the other co-owners who did not consent to the sale. Under Art. 493, the sale or other disposition affects only his undivided s hare and the transferee gets only what would correspond to his grantor in the pa rtition of the thing owned in common. Therefore, Afable became a co-owner of the said property by virtue of the sale by Rosalia and ,6audencio Bailon. W/N there is laches While there was a delay in Baton's rights, such delay was not attended with any knowledge of the sale nor with any opportunity to bring suit. Bailon had no notice of the sale made by their eldest sister, Rosalia. It is undisputed that Rosalia's sisters as, co-owners had entrusted the care and man agement of the parcel of land to Rosalia. IN view of lack of knowledge by Bailon of the conduct of Rosalia in selling the land without their consent in 1975 and in the absence of any opportunity to institute the proper action until 1981, laches may not be asserted against Bailo n. Sapto v. Fabiana (L-11285; 5/16/1958) F: co-heirs brothers sold their land to Fabiana. The sale was not registered. Wh en the brothers died, their heirs filed an action to recover the land. RTC ruled that the sale is binding to the heirs thus ordered the heirs to execute the nec essary deed of conveyance. The heirs contended that the action has prescribed si nce more than 20 years has passed since the original sale H: this is an action to quiet title thus it is imprescriptible The delivery of possession of the land had consummated the sale and transferred title to Fabiana, registration of the contract not being indispensable as betwe en the parties. The action for conveyance was actually one to quiet title, to re move the cloud cast upon Fabiana's ownership by the refusal of Sapto to recogniz e the sale made by the predecessor. It is an established rule that actions to qu iet title are imprescriptible. Bucton v. Gabar (L-36359; 1/31/1974) F: Josefina bought a parcel of land but entered into a verbal agreement with Bu cton that he would pay half of the price and they would then co-own the land. Bu cton possessed the land. After the Deed of Sale was executed, Josefina refused t o obtain a separate title for Bucton. Bucton filed a case. CA ruled that Bucton action has already prescribed. H: action has not yet prescribed The verbal agreement between Bucton and Josefina, although not consigned in public instrument or formal writing, is nevertheless valid and binding between t he two of them. Both B and J became owners in 1947, when a deed of sale was exec uted. The CA erred in holding that B's right of action had already prescribed. T he real and ultimate basis of B s action is the ownership of 1/2 of the lot coupl ed with their possession thereof, which entities B to a conveyance of the proper ty. When the action for conveyance is actually one to quiet title, it is an establi

shed rule that actions to quiet title to property are imprescriptible. By the delivery of the possession to the land, the sale was consummated and tit le was transferred, that the action is actually not for specific performance, si nce all it seeks is to quiet title. Coronel v. IAC (155 S 270) F: Coronel wants to eject Merlan from the land. Merlan insisted that what was so ld to Coronel was only the share of the other co-owners. This action was only br ought after 30 years H: the axn is not barred by prescription The counterclaim of respondents which was in effect a reconveyance to them o f their 1/3 share has not prescribed. As lawful possessors and owners of the lot in question, their cause of actio n falls within the settled jurisprudence that an action to quiet title to proper ty in one's possession is imprescriptible. Their undisturbed possession over the period of more than 25 years gave them continuing right to seek the aid of a co urt of equity to determine the nature of the adverse claim of a third party and the effect of his own title. In the same manner there is no bar based on laches to assert their right ove r 1/3 of the undisputed property. The facts shows that private respondents have always been in peaceful possession for 25 years disrupted only in 1975, when pet itioner tried to remove them. It was only this point that they knew about the su pposed sale of the Naic Estate and they immediately resisted. Robles v. CA 328 SCRA 97 F: After their father died, they agreed that Lucio Robles will cultivate the lan d while their half-brother, Hilario, will be pay the land taxes. Hilario mortgag ed the land without their knowledge. Land was subsequently foreclosed. Lucio and others then filed action to quiet title. H: Hilario only mortgaged part of the property which he owns as a co-owner, thus Lucio s share was not affected An action for quieting of title is a common law remedy for the removal of an y cloud or doubt or uncertainly on the title to the real property. It is essenti al for the plaintiff or complainant to have a legal or an equitable title to or interest in the real property which is the subject matter of the action. Also, t he deed, claim, encumbrance or proceeding that is being alleged as a cloud on pl aintiffs title must he shown to be in fact invalid or inoperative despite its pr ima facie appearance of validity of legal efficacy. That there is an instrument or a document which, on its face is valid and ef ficacious is clear in the present case. Petitioners alleged that their title as co-owners and possessors of the disputed property is clouded by the tax declarat ion, and subsequently the free patent thereto granted to spouses Santos. The mor e important question to be resolved, however, is whether petitioners have approp riate title that will entitle them to avail themselves of the remedy of quieting of title Petitioners anchor their claim to the disputed property on their continued a nd open possession as co-owners thereof. They allege that they inherited it from their father Silvino, who in turn inherited it from his father, Leon. They main tain that after their father's death, they agreed among themselves that petition er Lucio Robles would be tending and cultivating it for everyone, and that their half-brother Hilario would be paying the land taxes. They were not aware that f rom 1962 until 1987, the subject property had been declared in the name of Exequ iel Ballena, the Rural Bank of Antipolo, Hilario Robles, the Rural Bank of Cardo na and finally to spouses Santos. For those alleged transfers it is essential th at the deed of conveyance purportedly evidencing the transfer of ownership and p ossession from the heirs of Silvino to Exequiel should have been presented as be st proof of that transfer. No such document was presented, however. Thus, Hilario mortgaged the property to the Rural Bank Cardona in his capaci ty as a mere co-owner thereof. Clearly, the said transaction did not divest them of title to the property at the time of the institution of the complaint for qu

ieting of title. Art. 477. The plaintiff must have legal or equitable title to, or interest in th e real property w/c is the subject matter of the action. He need not be in posse ssion of said property. Art. 478. There may also be an action to quiet title or to remove a cloud theref rom when the contract, instrument or other obligation: 1. has been extinguished or 2. has terminated, or 3. has been barred by extinctive prescription. Art. 479. The plaintiff must return to the defendants all benefits he may have r eceived from the latter, or reimburse him for the expenses that may have redound ed to the plaintiff s benefit. Art. 480. The principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict w/ this Code. Art. 481. The procedure for quieting of title or the removal of a cloud therefro m shall be governed by such rules of court as the SC shall promulgate. RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING Art. 482. If a building, wall, column or any other construction is in danger of falling, the owner shall be obliged to demolish it or to execute the necessary w ork in order to prevent it from falling. If the proprietor does not comply w/ his obligation, the administrative authorities may order the demolition of the structure at the expense of the owne r, or take measure to insure public safety. Art. 483. Whenever a large tree threatens to fall in such a way as to cause dam age to the land or tenement of another or to travelers over a public or private road, the owner of the tree shall be obliged to fell and remove it; and should h e not do so, it shall be done at his expense by order of the administrative auth orities. CO-OWNERSHIP Article 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or of special pr ovisions, co-ownership shall be governed by the provisions of this title. Under this article, co-ownership may exist as to rights, and is not limited to c orporal things, (Samaniego vs. Villajin, CA OG 3137) Characteristics: (Co-ownership may also be referred as Tenancy in common) 1. more than 1 owner (plurality of subjects) 2. 1 physical unit or whole divided into ideal or fractional shares (singularity or unity of object) 3. Each fractional share is definite in amount but not physically segregated fro m the rest (recognition of ideal shares) 4. As to the physical unit, each co-owner must respect the other co-owners in it s common use, enjoyment and preservation (Article 483) 5. As to the aliquot share, each co-owner holds absolute control (Article 493) 6. No juridical personality of its own 7. A co-owner is in a sense a trustee for the other co-owners thus he may not or dinarily acquire exclusive ownership of the property held in common, through pre scription

Rules regarding ideal share: 1. Each co-owner has full ownership of his part and of his share in the fruits a nd benefits (Article 493); 2. He may alienate, assign, or mortgage his ideal share. (Article 493); What governs co-ownership? 1. Contracts; 2. In default thereof: a. special legal provisions, b. the law on co-ownership. Sources of co-ownership: 1. Law = party walls; party ditches; intestate succession; properties acquired b y a man and a woman whose marriage is void, 2. Contract = two persons buy a parcel of land sharing in the purchase price and agree not to divide the land for ten years; 3. CHANCE = commixtion, confusion, hidden treasure. 4. OCCUPATION = (Punzalan vs. Boon Liat 44 Phil 320) when a wild beast is caught by several persons; 5. WILL = when two persons are named as legatees or devises of an undivided thin g: Adriano v. CA (124118; 3/27/2000) F: while separated from his 1st wife, Gliceria, Lucio lived with Vicenta. After Gliceria died, he married Vicenta. L & V acquired properties during their cohabi tation named under both of their names. H: the properties belong to the 1st marriage Petitioners' insistence that a co-ownership of properties existed between Lu cio and Vicenta during their period of cohabitation before their marriage in 196 8 is without lawful basis considering that Lucio's marriage with Gliceria was th en subsisting. The co-ownership in Article 144 of the Civil Code requires that the man and woman living together as husband and wife without the benefit of marriage must n ot in any way be incapacitated to marry. Considering that the property was acqui red in 1964, or while Lucio's marriage with Glicena subsisted, such property is presumed to be conjugal unless it be proved that it pertains exclusively to the husband or to the wife. We cannot agree with petitioners' bare and expedient assertion that, because the title to the property was registered in the name of both Lucio and Vicenta, she should thereby be deemed owner to half of it. Property acquired by a man while living with a common-law wife during the su bsistence of his marriage is conjugal property, even when the property was title d in the name of the common-law wife. In such cases, a constructive trust is dee med to have been created by operation of Article 1456 of the Civil Code over the property which lawfully pertains to the conjugal partnership of the subsisting marriage.

The purpose Partnerships Co-ownership are created only for collective enjoyment PARTNERSHIP may arise from isby causes (i.e., will or and CO-OWNERSHIPof co-ownership otheragreement or contract law)to maintain the unit A partnership,partnership is profit personality period of more members Instipulation that a is no juridicalin common Theco-ownership,there theathing ownedcreated for a distinct from the members y and preservation ofco-ownership be personality distinct from thethan 10 years purpose of there is juridical In co-ownership, special authority is needed for representation A void ispartnership mayabe created for a period of more than 10 years among co-owner In I a co-ownership there generally of disposition of a co-owner s share sn partnership, there isis freedom mutual representation by the partners partnership, a partner cannot transfer his rights to 3rd persons without th Death or of the others e consentincapacity of 1 of the co-owners have no effect on the existence of a c The partnership can be extinguished by the death or incapacity of 1 of the partn o-ownership The ers distribution of profits is invariable in co-ownership by virtue of Article 4 The 85 distribution of profits is subject to stipulation in partnerships Rule on the shares of co-owners in the benefits and charges (Article 485):

Art. 485. The share of the co-owners, in the benefits as well as in the charges , shall be proportional to their respective interests. Any stipulation in a cont ract to the contrary shall be void. The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved. ! The share in the benefits and charges is proportional to the interest of each. o Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes; ! Contrary stipulation is void. To do so would be to run against the nature of c o-ownership; ! Each co-owner shares proportionately in the accretion or alluvium of the prope rty. This is because an increase in area benefits all. LIMITATIONS on co-owner's right to use the thing owned in common (Article 486) Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be chang ed by agreement, express or implied. 1. Can be used only according to the purpose for which it was intended; a. To determine the purpose for which the property is intended, the agreement of the co-owners (express or implied) should govern. b. In default of any agreement: a) that to which the thing is ordinarily adapted according to its nature; or b) the use to which it has been previously devoted. c. Thus, if the co-owners of a vessel agree that it should be used as a warehous e or storage place for grain, one of the co-owners cannot order the grain remove d and use the vessel for maritime transportation. d. Mere tolerance on the part of the co-owners cannot legalize the change in the use of the thing front that intended by the co-owners. e. Prescription cannot be invoked to establish a right to such different use, be cause mere tolerance cannot be the basis of prescription. 2. The right to use must not prejudice the interest of the co-ownership; a. A co-owner cannot devote community property to his exclusive use to the preju dice of the co-ownership. b. Thus, where the co-owners have agreed to lease a building owned in common, a co-owner cannot retain it for his use without paying the proper rent. 3. The right to use must not be exercised to prevent the others from making use thereof according to their own right. a. The right of enjoyment by each co-owner is limited by a similar right of othe rs. b. Hence, if the thing is a dwelling house, all the co-owners may live therein w ith their respective families, to the extent possible. c. But if one co-owner alone occupies the entire house without opposition of the others, and there is no agreement to lease it, the other co-owners cannot deman d the payment of rents. They can either exercise an equal right to live in the h ouse, or agree to lease it; if they fail to do so, they must bear the consequenc es. It would be unjust to require the co-owner to pay rents after the other co-o wners by their silence have allowed him to use the property. Art. 487. Any one of the co-owners may bring an action in ejectment. Art. 488. Each co-owner shall have a right to compel the other co-owners to con tribute to the expenses of preservation of the thing or right owned in common an

d to the taxes. Any one of the latter may exempt himself from this obligation by renouncing s o much of his undivided interest as may be equivalent to his share of the expens es and taxes. (refers to existing obligations or those already incurred) No such waiver shall be made if it is prejudicial to the co-ownership. (refers t o future expenses) Art. 489. Repairs for preservation may be made at the will of one of the co-own ers, but he must, if practicable, first notify his co-owners of the necessity fo r such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in article 492.

All others, like Alterations or useful improvements, luxurious embellishments, administration, One (Art 489) act of OWNERSHIP Repairs, ejectment action No. of co-owners who must consent 491) Financial majority better enjoyment (not numerical) [Art 492, 489] Art. 490. Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which they should con tribute to the necessary expenses and there exists no agreement on the subject, the following rules shall be observed: (PERPENDICULAR CO-OWNERSHIP) (1) The main and party walls, the roof and the other things used in common, shal l be preserved at the expense of all the owners in proportion to the value of th e story belonging to each; (2) Each owner shall bear the cost of maintaining the floor of his story; the fl oor of the entrance, front door, common yard and sanitary works common to all, s hall be maintained at the expense of all the owners pro rata; (3) The stairs from the entrance to the first story shall be maintained at the e xpense of all the owners pro rata, with the exception of the owner of the ground floor; the stairs from the first to the second story shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first story; and so on successively. Condominium Law (RA 4726 as amended by R.A. No. 7899) A Condominium is an interest in real property consisting of 1. a separate interests in a unit in a residential, industrial or commercial bui lding or in an industrial estate and 2. an undivided interests in common, directly and indirectly, in the land, or th e appurtenant interest of their respective units in the common areas. ! A condominium is actually a corporation wherein 1 unit is equal to 1 share ! Aliens can own units in a condominium up to 40%: this is an exception to the C onstitutional prohibition that aliens cannot own property in the RP ! Read the case of Sunset View Condominium vs. Campos where the SC held that a b uyer can only be considered a shareholder in the condominium when he pays the pu rchase price in full Article 491. None of the co-owners shall without the consent of the others, make alterations in the thing owned in common, even though benefits for all would re sult there from. However, if the withholding of the consent by one or more of th e co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief. Alteration is a change: 1. which is more or less permanent. 2. which changes the use of the thing; and 3. which prejudices the condition of the thing or its enjoyment by the others. ! It is also a change (not limited to physical) of state of the thing or the wit

hdrawal of the use from that intended. ! Alteration is an act of ownership ! Example: Sale; donation; or mortgage of the property. In determining alterations, it is sometimes necessary to consider the nature of the thing itself. Thus: ! when a thing does not require any modification for its enjoyment, whatever mod ifications or change that is made will be considered an alteration. ! But when a thing in its nature requires changes, such as industry or business, in its exploitation, such modifications and variations should be considered as falling under acts of administration. ! Article 491 requires unanimity of consent, whether tacit or express. Effect of tacit consent - although the co-owner who is deemed to have tacitly co nsented to the alteration cannot ask for the demolition, neither can he be held liable to answer for any part of the expenses incurred therein, because the obli gation to pay such expenses cannot be deemed to be the subject of his tacit cons ent. Art. 492. For the administration and better enjoyment of the thing owned in com mon, the resolutions of the majority of the co-owners shall be binding. (FINANCI AL MAJORITY) There shall be no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the co-ownership. Should there be no majority, or should the resolution of the majority be seri ously prejudicial to those interested in the property owned in common, the court , at the instance of an interested party, shall order such measures as it may de em proper, including the appointment of an administrator. Whenever a part of the thing belongs exclusively to one of the co-owners, and the remainder is owned in common, the preceding provision shall apply only to t he part owned in common. Limitations on the Right of Financial Majority 1. (GR) Although they can approve resolutions for administration and better enjo yment, still, before a decision is made, there should first be notice to the min ority so that they shall be heard 2. (EX) The majority would be justified in proceeding only when the urgency of t he case and the difficulty of meeting w/ them render impracticable the giving of said notice 3. Such minority may appeal to the court against the decision of the majority wh en: a. there is no real majority b. the resolution is seriously prejudicial to the rights of the individual co-ow ner c. the majority refuses to correct an abuse of administration d. the minority is made the victim of fraud e. an alteration is agreed upon f. the acts are seriously prejudicial to the minority such as: * when loans are made w/o sufficient security * when an encumbrance or disposition is made since this would be an alteration * when an abusive or inefficient administrator is not replaced Legal Redemption: Art 1620: A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person . If the price of the alienation is grossly excessive, the redemptioner shall pa y only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thi

ng owned common Art. 1623. The right of legal pre-emption or redemption shall not be exercised xcept within thirty days from the notice in writing by the prospective vendor, r by the vendor, as the case may be. The deed of sale shall not be recorded in he Registry of Property, unless accompanied by an affidavit of the vendor that e has given written notice thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining owners. e o t h

Without the notice, the period of redemption does not run: Cabrera v. Villanueva (L-75069; 4/15/1988) F: Cabrera (co-owner) argued that she never received the notice thus she could s till redeem the property. Cabrera and Villanueva (new co-owner) were neighbors. Villanueva s share in the rentals, less the tax is handled by Cabrera s aunt. Joint affidavit submitted by sellers (old co-owners) to Register of Deeds states that Cabrera was already informed. H: Cabrera cannot redeem since the joint affidavit proves there was written noti ce For the legal and effective exercise of the right of legal redemption one mus t make the offer within the period set down in Art. 1623. In other words, if no claim or offer is made within said period, no action will be allowed to enforce the right of redemption. It is necessary however to determine first if and when the written notice of sale was duly served by the vendors to their co-owner. Notwithstanding the actual knowledge of a co-owner, he or she is still entitl ed to a written notice from the vendor-co-owner in order to remove all uncertain ty as to the sale, its terms and validity and to quiet any doubts that the alien ation is not definitive. The law however does not require a specific form of written notice to the red emptioner. A reading of the Joint Affidavit, executed by the vendors Feliciano a nd Antonio Oropesa, affirms the fact that a written notice of the sale was reall y sent by them to their Cabrera. Spouses Doromal v. CA (L-36083; 9/5/1975) F: when letters were sent to the co-owner, the sale was not yet final. The lette rs merely stated that the other co-owners were willing to sell the property to D oromal. H: said letters are not considered as notice under 1623 For purposes of the co-owner's right of redemption granted by Article 1620 o f the Civil Code, the notice in writing which Article 1623 requires to be made t o the other co-owners and from receipt of which the 30-day period to redeem shou ld be counted is a notice not only of a perfected sale but of the actual executi on and delivery of the deed of sale. This is implied from the latter portion of Article 1623 which requires that before a register of deeds can record a sale by a co-owner, there must be presen ted to him, an affidavit to the effect that the notice of the sale had been sent in writing to the other co-owners. Article 1619 of the Civil Code bestows unto a co-owner the right to redeem a nd "to be subrogated under the same terms and conditions stipulated in the contr act", and to avoid any controversy as to the terms and conditions under which th e right to redeem may be exercised, it is best that the period therefore should not be deemed to have commenced unless the notice of the disposition is made aft er the formal deed of disposal has been duly executed. It is immaterial when she might have actually come to know about said deed, it appearing she has never been shown a copy thereof through a written communica tion by either any of the petitioners-purchasers or any of her co-owners-vendees . Exception: vendor immediately took possession and no co-owners questioned: Pilapil v. CA (55134; 12/4/1995) F: Heir sold their undivided share to Pilapil. Upon partition, Pilapil occupied

the lot H: no need to give notice On the matter of whether the rights of co-owners had been transgressed by the sale to the petitioners, the trial court erroneously ruled that there should be proof of compliance with Article 1623 of the Civil Code requiring the vendor of the property to give a written notice of sale to the other co-owners. Said prov ision of law had been rendered inutile by the fact that petitioners took possess ion of the property immediately alter the execution of the deed of sale in their favor and continue to possess the same. Since the fact of possession by the pet itioners had not been questioned by any of the co-owners, the latter may be deem ed to have knowledge of the sale. Art. 493. Each co-owner shall have the full ownership of his part and of the fr uits and benefits pertaining thereto, and he may therefore alienate, assign or m ortgage it, and even substitute another person in its enjoyment, except when per sonal rights are involved. But the effect of the alienation or the mortgage, wit h respect to the co-owners, shall be limited to the portion which may be allotte d to him in the division upon the termination of the co-ownership. (impt) Art. 494. No co-owner shall be obliged to remain in the co-ownership. Ea ch co-owner may demand at any time the partition of the thing owned in common, i nsofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period o f time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not excee d twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-ow ners or co-heirs so long as he expressly or impliedly recognizes the co-ownershi p. General Rule: No co-owner shall be obliged to remain in the co-ownership. Each c o-owner may demand at any time the partition of the thing owned in common, insof ar as his share is concerned. Reasons: 1. To avoid conflicts in management; 2. The law discourages co-ownership; 3. The disposition or enjoyment of the thing owned in common is subject to the d esire of all co-owners;

Exceptions: When there exists a PROHIBITION to partition because: 1. of the existence of an AGREEMENT between the parties; a. not more than 10 years, extendible by a new agreement after the termination o f the original period; hence, no automatic renewal, otherwise, the intention of the law would be defeated. b. If more than 10 years, void as to the excess; c. If prohibition is perpetual, valid only up to 10 years; d. If agreement subject to a resolutory condition, the agreement ends upon fulfi

llment of the condition provided it does not exceed 10 years 2. the LAW does not allow partition; (conjugal partnership as a general rule), 3. of the WILL of the donor or testator; (the prohibition may be up to 20 years) , 4. physical partition would render the property unserviceable (i.e., automobile, partition shall proceed in accordance with the rules set forth under Article 49 8). 5. the legal NATURE of the property does not allow partition (party wall) General rule: Prescription against a co-owner does not lie. Exception: 1. When a co-owner e co-ownership and 2. The requirement d of time required gives notice to the other co-owners that he is repudiating th that he is claiming ownership of the entire property: of continuous, open, public, adverse possession for the perio must be met;

Requisites for title to prescribe in favor of a co-owner: 1. the co-owner has performed unequivocal acts of repudiation amounting to an ou ster of the other co-owners: 2. such positive acts of repudiation have been made known to the other co-owners ; 3. the evidence thereof is clear and convincing. Robles v. CA Hilario did not have possession of the subject property; neither did he excl ude petitioners from the use and enjoyment thereof, as they have indisputably sh ared in its fruits. Likewise, his act of entering into the mortgage contract with the bank canno t be construed to be a repudiation of the co-ownership. As an absolute owner of his undivided interest in the land, he had the right to alienate his share, as h e in fact did. Neither should his payment of land taxes in his name, as agreed upon by the co owners, be construed as repudiation of the co-ownership. The assertion that t he declaration of the co-ownership was tantamount to repudiation was belied by t he continued occupation and possession of the disputed property by the petitions s as owners. ! Acts which may be considered adverse insofar as strangers are concerned, may n ot be considered adverse insofar as co-owners are concerned. ! In other words, it is harder for a co-owner to acquire properties compared to that of strangers. Hence, mere actual possession by one co-owner will not give r ise to the inference that the possession was adverse. This is because a co-owner is after all entitled to possession of the property. There must indeed be a def inite repudiation and the possession is to the exclusion of other co-owners. ! The period of prescription commences from the date of the repudiation. May an action for partition prescribe? NO! AGUILAR VS. COURT OF APPEALS (227 SCRA 472) F: 2 brothers bought house for their father. After their father s death, one does not want to sell the land and partition the H: rent also starts from the time of the decision Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-ownership, and that each co-owner may demand at any time partit ion of the thing owned in common in so far as his share is concerned. Corollary to this rule, Article 498 of the Code states that whenever the thing is essentia lly indivisible and the co-owners cannot agree that it be allotted to one of the m who shall indemnity the others, it shall be sold and its proceeds accordingly distributed.

However, being a co-owner, respondent has the right to use the house and lot without paying any compensation to the petitioner, as he may use the property o wned in common so long as it is in accordance with the purpose for which it is i ntended and in a manner not injurious to the interest of the other co-owners. Ea ch co-owner of property held pro indiviso exercises his rights over the whole pr operty and may use and enjoy the same with no other limitation than that he shal l not injure the interest of his co-owners, the reason being that until a divisi on is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants joint-ownership over the pro indiv iso properly, in addition to his use and enjoyment of the same. In fairness, respondent should pay a rental of P 1,200.00 per month, with le gal interest from the time the trial court ordered him to vacate, for the use an d enjoyment of the other half of property appertaining to petitioner. When petitioner filed an action to compel the sale of the property and the t rial court granted the petition and ordered the ejectment of respondent, the coownership was deemed terminated and the right to enjoy the possession jointly al so ceased. Thereafter, the continued stay of respondent and his family in the ho use prejudiced the interest of petitioner as the property should have been sold and the proceeds divided equally between them. To this extent and from then on, respondent should be held liable for monthly rentals until he and his family vac ate. (See: Fabian vs. Fabian, 22 SCRA 520. Miguel vs. Catalino, 26 SCRA 274, Vil lanueva vs. Florendo, 139 SCRA 329] Tuason vs. Tuason The co-owners of a huge parcel of land agreed to improve the property by fil ling it and constructing roads thereon and then sub-dividing it into small lots for sale. Subsequently, one of the co-owners asked the court for partition alle ging that Article 494 was violated. The SC said that the contract far from violating the legal provision that fo rbids a co-owner from being obliged to remain a party to the community precisely has for its purpose and object the dissolution of the co-ownership and of the c ommunity by selling the parcel held in common and dividing the proceeds of the s ale among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the document, the par ties thereto practically and substantially entered into a contract of partnershi p as the best and most expedient means of eventually dissolving the co-ownership , and the life of said partnership to end when the object of its creation shall have been attained. Art. 495. Notwithstanding the provisions of Art. 494, the co-owners cannot deman d a physical division of the thing owned in common, when to do so would render i t unserviceable for the use for w/c it is intended. But the co-ownership may be terminated in accordance w/ Art. 498. Art. 496. Partition may be made by agreement between the parties or by judicial proceedings. Partition shall be governed by the Rules of Court insofar as they a re consistent w/ this Code. Art. 497. The creditors or assignees of the co-owners may take part in the divis ion of the thing owned in common and object to its being affected w/o their conc urrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, w/o prejudice to the right if the debtor or assignor to maintain its validity. Art. 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it sha ll be sold and its proceeds distributed.

Art. 499. The partition of a thing owned in common shall not prejudice 3rd perso ns, who shall retain the rights of mortgage, servitude, or any other real rights belonging to them before the division was made. Personal rights pertaining to a 3rd persons against the co-ownership sha ll also remain in force, notwithstanding the partition. Art. 500. Upon partition, there shall be a mutual accounting for benefits receiv ed and reimbursements for expenses made. Likewise, each co-owner shall pay for d amages caused by reason of his negligence or fraud. Art. 501. Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other co-owners. Law on Waters 1. PD 1067: The Water Code = promulgated on December 31, 1976 2. Before PD 1067: the governing laws on waters are: i. Civil Code: Art. 502-518 ii. Supplementary laws: Special Law of Waters of August 3, 19866 and Irrigation Law 3. Clean Water Act = tackles pollution, rather than ownership Art. 4 of PD 1067: Waters, as used in this Code, refers to water under the groun ds, water above the ground, water in the atmosphere and the waters of the sea wi thin the territorial jurisdiction of the Philippines Sec 2 Art XII of the Constitution: All lands of the public domain, waters, miner als, coal, petroleum, and other mineral oils, all forces of potential energy, fi sheries, forests or timber, wildlife, flora and fauna, and other natural resourc es are owned by the State. With the exception of agricultural lands, all other n atural resources shall not be alienated. The exploration, development, and utili zation of natural resources shall be under the full control and supervision of t he State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino ci tizens, or corporations or associations at least sixty per centum of whose capit al is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for ir rigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters , territorial sea, and exclusive economic zone, and reserve its use and enjoymen t exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subs istence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations invol ving either technical of financial assistance for large-scale exploration, devel opment, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contribution s to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technic al resources. The President shall notify the Congress of every contract entered into in acc ordance with this provision, within thirty days from its execution. Qualified to apply: Art. 15 of PD 1067: Only citizens of the Philippines, of legal age, as well as j uridical persons, who are duly qualified by law to exploit and develop water res

ources, may apply for water permits. (only Filipino citizens and corporations) Term of Permit: Art. 28 of PD 1067: Water permits shall continue to be valid as long as wate r is beneficially used; however, it maybe suspended on the grounds of non-compli ance with approved plans and specifications or schedules of water distribution; use of water for a purpose other than that for which it was granted; non-payment of water charges; wastage; failure to keep records of water diversion, when req uired; and violation of any term or condition of any permit or rules and regulat ions promulgated by the Council. Temporary permits may be issued for the appropriation and use of water f or short periods under special circumstances. (Maximum period is the beneficial used of water) Office in charge: National Water Resources Board (NWRB) = formerly Nat l Water Resources Council ~ created by PD 424 in March 28, 1974 ~ conferred with regulatory and executory powers, such as to coordinate and inte grate water resources development activities of the country as well as to determ ine, adjudicate and grant water rights, for which purpose it may issue needful r ules and regulations ~ also functions as advisory to the NEDA, recommending the adoption of general p olicies and guidelines, including plans and programs for water resources develop ment

BF Northwest Homeowners Assn. vs. IAC [G.R. No. L-72370. May 29, 1987.] F: NWRC approved water rates allowing BF Homes, Inc. to charge higher rates to i ts customers. Petitioner appealed NWRC decision to RTC which dismissed the appea l saying it has no jurisdiction H: RTC has jurisdiction since NWRC is ranked with inferior courts The National Water Resources Council (NWRC) was was vested with the general power to coordinate and integrate water resources development, and among others, to formulate and promulgate rules and regulations for the exploitation and opti mum utilization of water resources, including the imposition on water appropriat ors of such fees or charges as may be deemed necessary by the Council for water resources development. Plainly, the NWRC is ranked with "inferior courts," MTC, MTCC, etc. Expl icit as well is the proviso that NWRC decisions on water rights controversies ar e appealable to the Court of First Instance (now RTC) The logical conclusion, therefore, is that jurisdiction over actions for annulment of NWRC decisions lies with the Regional Trial Courts, particularly, when we take note of the fact that the appellate jurisdiction of the Regional Tr ial Court over NWRC decisions covers such broad and all embracing grounds as gra ve abuse of discretion, questions of law, and questions of fact and law (Art. 89 , P.D. No. 1067). This conclusion is also in keeping with the Judiciary Reorgani zation Act of 1980, which vests Regional Trial Courts with original jurisdiction to issue writs of certiorari, prohibition, mandamus, etc. (Sec. 21 [1], B.P. Bl g. 129) relating to acts or omissions of an inferior Court (Sec. 4, Rule 65, Rul es of Court). Abe-Abe v. Manta [G.R. No. L-4827. May 31, 1979.] F: Upstream farmers want to stop Atty. Romualdo from using the water of the cree ks at night to irrigate his two-hectare rice land located downstream. Farmers fi led a case before the courts H: lower court has no jurisdiction; NWRC has We hold that the petition is devoid of merit. It is incontestable that the p etitioners' immediate recourse is to ventilate their grievance with the National Water Resources Council which, as already noted is the administrative agency ex

clusively vested with original jurisdiction to settle water rights disputes unde r the Water Code and under PD No. 424. That jurisdiction of the Council under section 2(b) of Presidential Decr ee No. 424 is reaffirmed in section 88 of the Water Code and in section 3(d) the reof which provides that "the utilization, exploitation, development, conservati on and protection of water resources shall be subject to the control and regulat ion of the government through" the Council. Sec 2 of Art XII of the Const: ~ no specific class of waters, only specific uses ~ irrigation, supply, fisheries, power, industrial uses BUT Art. 10 of PD 1067 provides for uses of waters: 1.) domestic purposes = utilization of water for drinking, washing, bathing, coo king or other household needs, home gardens, and watering of lawns or domestic a nimals. 2.) municipal purposes = utilization of water for supplying the water requiremen ts of the community. a. Use of water for irrigation is the utilization of water for producing agricul tural crops. 3.) power generation = utilization of water for producing electrical or mechanic al power. 4.) fisheries = utilization of water for the propagation and culture of fish as a commercial enterprise. 5.) livestock raising = utilization of water for large herds or flocks of animal s raised as a commercial enterprise. 6.) industrial purposes = utilization of water in factories, industrial plants a nd mines, including the use of water as an ingredient of a finished product. 7.) recreational purposes = utilization of water for swimming pools, bath houses , boating, water skiing, golf courses and other similar facilities in resorts an d other places of recreation. Is Water immovable or movable property? ~ Water is immovable because in its natural state it is regarded as forming part of the land ~ Water is also movable because it is part of the forces of nature which is brou ght under the control of science US vs. Tambunting [G.R. No. 16513. January 18, 1921.] F: Tambunting used gas without the knowledge of the gas company. He was charged with theft H: he is guilty of theft since gas is considered as personal property The clandestine subtraction and appropriation of gas, without the consen t of the owner constitutes theft. Electric energy could be the subject of theft . There is nothing in the nature of gas used for illumination purposes which re nders it incapable of being feloniously taken and carried away. It is a valuabl e article of merchandise, bought and sold like other personal property, suscepti ble of being severed from a mass or larger quantity and of being transported fro m place to place. Likewise, water which is confined in pipes and electricity wh ich is conveyed by wires are subjects of larceny. ~ Art 502 of the CC: enumerates what belongs to the State. This is the same with Art 5 of PD 1067. ~ Art 503 of the CC: water subject to private ownership. This was not carried ov er in PD 1067 ~ Implication: water belongs to the state, whether found in public or private la nd. Water cannot be of private ownership. Only the use of such water, not owners hip is granted in administrative concession. ~ So, you cannot drill a well without prior permit

Priority over use of waters: Art. 95 of PD 1067: Within two (2) years from the promulgation of this Code, all claims for a right to use water existing on or before December 31, 1974 shall b e registered with the Council which shall confirm said rights in accordance with the provisions of this Code, and shall set their respective priorities. casia When priority in time of appropriation from a certain source of supply c annot be determined, the order of preference in the use of the waters shall be a s follows: a. Domestic and municipal use b. Irrigation c. Power generation d. Fisheries e. Livestock raising f. Industrial use, and g. Other uses. Any claim not registered within said period shall be considered waived a nd the use of the water deemed abandoned, and the water shall thereupon be avail able for disposition as unappropriated waters in accordance with the provisions of this Code. ~ This comes into play if there are two conflicting rights ~ constitution does not establish a rule of priority, it only mentions the uses for which the water right is granted ~ CC; also no provision on use; only provided for the manner on how use of water may be acquired ~ PD 1067 repealed Civil Code POSSESSION POSSESSION, meaning of: Article 523: Possession is the holding of a thing or the enjoyment of a right. What is the relationship between ownership and possession? Ans: As a general rule, possession is an element of ownership. However, this is not absolute; there are circumstances whereby the owner of the thing does not possess the thing. Essential Requisites of Possession: (Must concur) 1. Holding, maybe actual or constructive, the body of thing or the corpus. (Ther e is occupancy, taking or apprehension.) 2. Intent to hold it, the animus or desire. 3. The possession must be by virtue of one's own right. Hence, an .agent who hol ds is not truly in possession; it is the principal who possesses thru the agent. Classes of possession: 1. Possession is one's own name or possession in the name of another (Article 52 4); 2. Possession in the concept of an owner or possession in the concept of a holde r (Article 525), 3. Possession in good faith or possession in bad faith (Article 526) Degrees of Possession 1. The mere holding of a thing without the title, or the holding of a thing in v iolation of the right of the owner. a. Example: A thief possesses a thing without title and in violation of the righ t of the owner 2. Possession with juridical title, but not that of ownership. Example: a. Contract of lease b. Usufruct

c. the possession by the tenant; d. possession by the depository, by the bailee, by the lessee. e. All these have juridical titles but they are not the owners. 3. Real Possessory Right = Possession with just title not sufficient to possess ownership. a. Example: A in good faith buys an automobile from B who delivers the same to A and who merely pretended to be the owner thereof 4. Possession with a title of dominium. This is possession arising from ownershi p. Art. 524. Possession may be exercised: 1. in one's own name or 2. in that of another. The concepts Article 525: s: either in t to keep or of possession The possession of things or rights may be had in one of two concept the concept of owner, or in that of the holder of the thing or righ enjoy it, the ownership pertaining to another person

1. In the concept of an owner: It is the possession by the owner himself or by a person who CLAIMS to be and ACTS as the owner, whether he is in good faith or in bad faith. He possesses th e thing in such a way that he makes people believe or see that he is the owner a nd recognizes no title or ownership in another 2. In the concept of holder: Here the possessor recognizes another to be the owner. Examples: 1. That of a tenant; 2. That of the usufructuary; 3. That of the depositary; 4. That of a bailee in commodatum MAGULCOT-AW vs. MACLUCOT (329 SCRA 78) F: lessees stopped paying rent and claimed ownership over the land H: The payments of rentals by the respondents reveal that they are mere lessees. As such, the possession of respondents over the lot no, 1639-D is that of a holder and not in the concept of an owner. One who possesses as a mere holder ac knowledges in another a superior right which he believes to be ownership, whethe r his belief is right or wrong. Since the possession of respondents were found t o be that of lessees of petitioners, it goes without saying that the latter were not in possession of Lot No. 1639-D in the concept of an owner from 1952 up to the time the present action was instituted. Note: Possessor who is merely tolerated by owner is a possessor in the concept o f holder and such possession does not hinder a valid transfer of ownership by th e owner thru its sale to another. JOSE M. T. GARCIA vs. COURT of APPEALS, (113140, August 10, 1999) F: Atty Garcia and his wife sold their land to their daughter and her husband. Y oung couple mortgaged the land to PBCom and it was subsequently foreclosed. Brot her Jose now claims that sale was not valid since at the time it was sold, he wa s in possession of the land H: brother has no right over the property For in his complaint, plaintiff-appellee alleged that he entered into posses sion of the disputed property only upon the demise of his mother, from whom he a lleges to have inherited it but who was not the registered owner of the property , that is, on October 31, 1980 (Certificate of Death, p 17, Records), by which a dmission he is bound. Since the execution of the deed of sale by Atty. Pedro V.

Garcia in favor of the Magpayos took place earlier or on August I, 1980, then co ntrary to his claim, plaintiff-appellee was not in possession of the property at the time of the execution of said public instrument.

exists when Possession Ownership a thing pertaining to one person is completely subjected to his will holding of a not prohibited by law and consistent with the rights of others in a manner thing or the enjoyment of a right 1. possession in the concept of an owner = A possessor in the concept of an owne r himself or one who claims to be so 2. possession of a holder = acknowledges in another a superior right which he be confers certain rights whether his one of which is the right lieves to be ownership,to the owner,belief be right or wrong to dispose of the thing by way of sale. Atty. Pedro Garcia and his wife Remedios exercised their right to dispose of what they owned when they sold the subject property to the Magpayo spouses. The records show that petitioner occupied the property not in the concept of an owner for his stay was merely tolerated by his parents. An owner's act of al lowing another to occupy his house, rent-free does not create a permanent and in defeasible right of possession in the latter's favor. Consequently, it is of no moment that petitioner was in possession of the property at the time of the sale to the Magpayo spouses. It was not a hindrance to a valid transfer of ownership . On the other hand, petitioner's subsequent claim of ownership as successor t o his mother's share in the conjugal asset belied by the fact that the property was not included in the inventory of the estate submitted by his father to the i ntestate court. This buttresses the ruling that indeed the property was no longe r considered owned by petitioner s parents. The Court likewise upheld the Court of Appeals holding that "the mortgage to PBCom by the Magpayo spouses is valid notwithstanding that the Transfer Certific ate of Title over the property was issued to them after the mortgage contract wa s entered into. Registration does not confer ownership, it is merely evidence of such ownership over a particular property. The deed of sale operates of a forma l or symbolic delivery of the property sold and authorizes the buyer to use the document as proof of ownership. All said, the Magpayo spouses were already the o wners when they mortgaged the property to PBCom." Note: There can be no acquisitive prescription of land if the possession is in t he concept of holder. MANGAHAS vs. CA (G.R. No. 95815, March 10, 1999] F: Mangahas possession was tolerated by Rodil who possessed the land in 1955. Rod il subsequently sold the land to Cayme and Mangahas was still allowed to use the land. When Cayme now wants Mangahas out, he refused to leave saying he has acqu ired the land thru prescription H: The defendant-appellant s grantor or predecessor-in-interest (Severo Rodil) too k possession of the property, subject matter of the litigation, on April 1955. S ince the complaint in the case at bar was filed on February 25, 1985, the requir ement of at least thirty years continuous possession has not been complied with even if We were to attack Rodil s period of possession ..." POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH: Article 526: He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which validates it.

He is deemed a possessor in bad faith who possesses in any case contrary to t he foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith. (exception to Art 3 NCC) AWARENESS of any FLAW is question of knowledge ~ It he is not aware - GOOD FAITH. There is always a presumption that every poss essor is a possessor in good faith. (Article 527). ~ If he is aware -- BAD FAITH. This is purely personal to the possessor. It may not necessarily be transmitted to the heir. Art. 527. Good faith is always presumed, and upon him who alleges bad faith on t he part of a possessor rests the burden of proof. Note: Transferee of an unregistered parcel of land for value from a buyer and who t ook immediate possession thereof has the benefit of good faith in his favor. Ord inary acquisitive prescription of 10 years is applicable. MARCELO vs. CA [131803, April 14, 1999] F: Marcelo asserts that he only sold Riceland to Cruz but the extra-judicial set tlement with Sale executed by his widow included the pasture land. Cruz sold the land to Flores who has been possessing it for 14 years. Did Flores acquire owne rship over the land by virtue of prescription? H: Acquisitive prescription is a mode of acquiring ownership by a possessor thro ugh the requisite lapse of time. In order to ripen into ownership, possession mu st be in the concept of an owner, public, peaceful and uninterrupted. Thus mere possession with a juridical title, such as, to exemplify, by a usu fructuary, a trustee, a lessee, an agent for a pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive prescription, unless th e juridical relation is first expressly repudiated and such repudiation has been communicated to the other party. Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be inadequate. Possession, to constitute the foundation of a prescriptive right, must be in concepto de dueno, or, to use the common law equivalent of the term, that posse ssion should be adverse; if not, such possessory acts, no matter how long, do no t start the running of the period of prescription. Acquisitive prescription of dominion and other real rights may be ordinary o r extraordinary. 1. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law; 2. without good faith and just title, acquisitive prescription can only be extra ordinary in character. 3. As regards real or immovable property, Article 1134 of the Civil Code provide s: Ownership and other real rights over immovable property are acquired by ordina ry prescription through possession of ten years. Ordinary acquisitive prescription demands, as aforesaid, that the possession b e "in good faith and with just title The good faith of the possessor consists in the reasonable belief that the person from whom the thing is received has been t he owner thereof and could thereby transmit that ownership. There is, upon the o ther hand, just title when the adverse claimant come into possession of the prop erty through any of the modes recognized by law for the acquisition of ownership or other real rights, but that the grantor is neither the owner nor in a positi on to transmit the right. A party s mere refusal to believe that a defect exists of his willful closing of his eyes to the possibility of the existence of a defect in his vendor's title will not make him an innocent purchaser for value if it afterwards develop that

the title was in fact defective. Hence, if circumstances exist that require a prudent man to investigate; he wi ll be in bad faith if he does not investigate (Leung Lee vs. Strong 37 Phil 464: Republic vs. CA, 102 SCRA 331) If there is no flaw, the article does not apply. REPUBLIC VS. DE GUZMAN (326 SCRA 267) F: De Guzman sold the land to his married daughter (spouses Rivera) who mortgage d it with Hoechst. De Guzman was not in possession of the land. Ty, on the other hand, has possessed the land since 1963 H: daughter was not in good faith Spouses Rivera are not purchasers for value. They are related by consanguini ty and affinity to Enrique de Guzman and knew that de Guzman was not in possessi on of the land. In fact, Rio Rivera testified that his father-in-law was not in possession of the lot in question. Carmen Ty was in possession of the lot since 1963 and paid the real estate taxes thereon. "The burden of proving the status of purchaser in good faith and for value l ies upon him who asserts that status in discharging the burden, it is not enough to invoke the ordinary presumption of good faith. The rule is settled that a buyer of real property where the property is in po ssession of persons other than the seller must be wary and should investigate th e rights of those in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as buyer in good faith. Uy v. CA (107439; 7/20/1995) F: Catador offered to sell his 4,167 sq. m. land to Sauler who paid P45T down. C atador mortgaged said land to SIHI so Sauler renegotiated and opted to buy only 555 sq. m. but separate title cannot be given since title was with SIHI. SIHI fo reclosed on the entire land, UY bought the land. Sauler argues that as a co-owne r, she has the right of redemption. Uy argues that as an innocent purchaser, she has a right over the entire lot. H: Sauler is not a co-owner since there is no indivisible thing ; Uy is not innocen t purchaser Uy cannot pretend to be an innocent purchaser for value since she is ful ly aware of Sauler s possession. Uy s parents own the adjacent lot and Catador has i nformed Uy s father of the sale. Neither can SIHI, petitioner's predecessor-in-interest, claim to be an inn ocent mortgagee. Sunshine v. IAC: The general rule is that a mortgagee "is under no obligat ion to look beyond the certificate and investigate the title of the mortgagor ap pearing on the face of the certificate," Nevertheless, we have to deviate from t he general rule because of the failure of the petitioner in this case to take th e necessary precautions to ascertain if there was any flaw in the title of the N olascos and to examine the condition of the property they sought to mortgage. Th e petitioner is an .investment and financing corporation. We presume it is exper ienced in its business. Ascertainment of the status and condition of properties offered to it as security for the loans it extends must be a standard and indisp ensable part of its operations. Surely, it cannot simply rely on an examination of a Torrens certificate to determine what the subject property looks like as it s condition is not apparent in the document. The land might be in a depressed ar ea. There might be squatters on it. It might be easily inundated. It might be an interior lot, without convenient access. These and other similar factors determ ine the value of the property and so should be of practical concern to the petit ioner. The following may be the basis of good faith: 1. Error in the application of the law, in legal solutions that arise from such application (here the error is not gross and therefore excusable); 2. Error in the appreciation of the legal consequences of certain acts; 3. Errors in the interpretation of doubtful provisions or doctrines; (see: Kasil

ag vs. Roque, 67 Phil. 217). Art. 528. Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully. Art. 529. It is presumed that possession continues to be enjoyed in the same cha racter in which it was acquired, until the contrary is proved. Presumptions that may arise from possession: 1. Ownership: (Art 433) a. One who is actually in possession of a thing under claim of ownership is pres umed to be the owner. One who alleges that such possessor is not the true owner has the burden of proof to prove his claim. (Disputable presumption) 2. GOOD FAITH: (Art 527) a. Good faith is always presumed, and upon him who alleges bad faith on the part of the possessor rests the burden of proof. 3. Continuity of Presumption of Good Faith: (Art 529) a. If we know that he acquired the thing in good faith, then it is presumed that he continues to be a possessor in good faith up to now, until the contrary is p roved. 4. Just Title: (Art 541) a. A person who is believed to be the owner by the community has the legal presu mption that he possesses it with a just title; that he has a title to support hi s ownership and he cannot be obliged to show or prove the title. 5. POSSESSION OF MOVABLES: (Art 542) a. Possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded. 6. NON-INTERRUPTION OF POSSESSION (Art 533) a. The possession of hereditary property is deemed transmitted to the heir w/o i nterruption, from the moment of death of the decedent, in case the inheritance i s accepted. One who validly renounces an inheritance is never deemed to have acc epted the same. 7. NON-INTERRUPTION OF POSSESSION OF PROPERTY UNJUSTLY LOST BUT LEGALLY RECOVERE D: (Art 561) a. One who recovers, according to law, possession unjustly lost, shall be deeme d for all purposes which may redound to his benefit, to have enjoyed it without interruption. 8. POSSESSION DURING INTERVENING PERIOD: (Art 554; 1138 (2)) a. You are in actual possession of a parcel of land now. There is proof that you were in possession of this land 10 years ago. But there is no proof that you we re in possession during the intervening time. The presumption is you were in con tinuous possession of the same. 9. EXCLUSIVE POSSESSION OF COMMON PROPERTY (Art 543) a. Each one of the participants of a thing possessed in common shall be deemed t o have exclusively possessed the part w/c may be allotted to him upon the divisi on thereof, for the entire period during w/c the co-possession lasted. Art. 530. Only things and rights which are susceptible of being appropriated may be the object of possession. Res nullius = abandoned or ownerless property - may be possessed but cannot be acq uired by prescription * because prescription presupposed prior ownership by another * however res nullius may be acquired by occupation ACQUISITION OF POSSESSION: Art 531: Possession is acquired 1. by the material occupation of a thing or the exercise of a right, or 2. by the fact that it is subject to the action of our will, or

3. by the proper acts and legal formalities established for acquiring such right Three ways of acquiring possession: 1. Material occupation of the thing or exercise of a right. a. Holding, apprehension, arrest, occupancy. b. Occupation is used here in its ordinary sense which means holding of a thing which must be physical. (Also the exercise of a right.) 2. By the action of our will (by agreement) a. Here there is no actual physical detention or seizure of the thing but the ag reement between the parties constitutes the fact of possession. 3. By constructive possession or proper acts and legal formalities established b y law. a. This is the legal formality which gives rise to possession. b. These are certain documents that can ordinarily give rise to possession becau se of legal fiction. c. The moment that document takes effect, automatically, the person in whose fav or those documents were executed is deemed to have acquired possession of that p roperty. Example: 1. In donation, there is no need of delivery. The moment the donation is in the form provided by law, the donee is deemed to be in possession of the thing donat ed. Ownership is automatically acquired by the donee. 2. Will upon the death of the decedent. If the will is valid, automatically, the heirs mentioned in the will are deemed by fiction of law to be in possession of the hereditary estate. Actually and in truth, the heirs are not in actual posse ssion but by fiction of law, the possession by the decedent is deemed to be cont inued without any interruption. (Article 533) Cequea vs. Bolante (330 SCRA 216) F: Can tax receipts and declarations be the basis of claim of ownership through prescription? H: yes, if coupled with other proof of actual possession Petitioners did not lose legal possession because possession cannot be acqui red through force or violence. To all intents and purposes, a possessor even if physically ousted is still deemed the legal possessor. Indeed, anyone who can pr ove prior possession, regardless of its character, may recover such possession. However, possession by the petitioners does not prevail over that of the respond ent. The respondent is the preferred possessor because, benefiting from her fath er's tax declaration of the subject lot since 1926, she has been in possession t hereof for a longer period. On the other hand, petitioner's father acquired join t possession only in 1952. Tax receipts and declarations of ownership, when coupled with proof of actua l possession of the property, can be the basis of a claim for ownership through prescription. Respondent's possession was not disturbed until 1953 when the peti tioner's father claimed the land. But by then, her possession, which was in the concept of an owner -- public, peaceful, and uninterrupted had already ripened i nto ownership. Furthermore, she herself after her father's demise declared and p aid realty taxes for the disputed land. Tax declarations and receipts are not conclusive evidence of ownership. At m ost they constitute mere prima facie proof of ownership or possession of the pro perty for which taxes have been paid. In the absence of actual, public and adver se possession, the declaration for tax purposes does not prove ownership. The petitioners, despite 32 years of farming the subject land, did not acqui re ownership by mere occupation. Unless coupled with the element of hostility to ward the true owner, occupation and use, however long, will not confer title by prescription or adverse possession. Art. 532. Possession may be acquired: 1. by the same person who is to enjoy it,

2. by his legal representative, 3. by his agent, or 4. by any person without any power whatever; but in the last case, the possessio n shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridica l consequences of negotiorum gestio in a proper case. Who may acquire Possession? Ans: One who is in full possession of his civil capacity can acquire possessi on of a thing or a right through 1. any of the three ways of acquiring possession as provided in Art, 531 a. Material occupation of the thing; b. by the action of our will; c. proper acts and legal formalities established by law; or 2. may (under Art 432) acquire through a. his representative; b. by his agent, or c. any person without any power whatsoever (negotiorum gestio Art 2144) The possession of a person without power cannot be acquired without the ratif ication of the person in whose name the act of possession was executed. Art. 533. The possession of hereditary property is deemed transmitted to the hei r without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possess ed the same Art. 534. On who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall no t benefit him except from the date of the death of the decedent. Art. 535. Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercis e the rights which from the possession arise in their favor. May minors and incapacitated persons acquire possession? Ans: Minors and incapacitated persons ~ may acquire possession in those matters where they have capacity to act like i n the case of o physical seizure of res nullius or o donation of personality simultaneously delivered to them; and ~ not possession where juridical acts are imperative like o donations of realty where minors and incapacitated persons have no juridical c apacity to execute (Art 535) o possession of land the ownership of which he desires to test in court Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of t he holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing. Art. 537. Acts merely tolerated, and those executed clandestinely and without th e knowledge of the possessor of a thing, or by violence, do not affect possessio n. Circumstances that cannot give rise to possession:

1. Force, violence, intimidation. a. The law shall not consider you as a possessor of a thing (Tomas vs. CA, 185 S CRA 627) b. As long as there is a possessor who objects. If the objection ceases, the pos session began by force may be acquired 2. Mere tolerance of the owner 3. Clandestine acts or secret possession cannot give rise to possession, for pos session must be open (Art 537) THE DIRECTOR, LANDS MANAGEMENT BUREAU vs. CA (324 SCRA 757) F: Cario s family wants to register the land. They alleged that they have been cult ivating it for 26 years. They have not produced a single muniment of title to su bstantiate his claim of ownership. H: proof of adverse possession is necessary In order that a petition for registration of land may prosper, the applicant must show that he or his predecessor-in-interest has been in open, continuous, exclusive, and adverse possession and occupation of the land sought for registra tion, for at least thirty (30) years immediately preceding the filing of the pet ition for confirmation of title. In this case, private respondent has been in possession of the land for only 26 years as of 1975 when he filed the petition beginning from 1949 when the sam e was adjudicated to him by virtue of extra-judicial settlement and partition. O ther than his unilateral assertion, private respondent has not introduced suffic ient evidence to substantiate his allegation that his late mother possessed the land in question even prior to 1911. The phrase "adverse, continuous, open, public, peaceful possession in the co ncept of owner", by which characteristics private respondent describes his posse ssion and that of his parents, are mere conclusions of law requiring evidentiary support and substantiation. The burden of proof is on the private respondent, a s applicant, to prove by clear, positive and convincing evidence that the allege d possession of his parents was of the nature and duration required by law. His bare allegations without more, do not amount to preponderant evidence that would shift the burden of proof to the oppositor. Will the status as a possessor in the concept of holder of the tenant improve if he erred in believing that the landlord was the owner of the property? A: No. One who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong. [ Maglucot-aw vs Maglucot, 329 SCRA 78] What is the purpose of lis pendens? A: It is an announcement to the whole world that a particular properly is in litigation and serves as warning that one who acquires an interest over said pro perty does so at his own risk, or that he gambles on the result of the litigatio n over said property. [Heirs of Antonio Pael vs. Court of Appeals 325 SCRA 552]. It may involve actions that deal not only with the title or possession of a p roperty, but even with the use or occupation thereof. [Viewmaster Construction C orp. vs. Maulit 325 SCRA 821] May a buyer of a real property be considered in good faith if he fails to inquir e upon the rights of those in possession thereof? A: No. The rule is settled that a buyer of real property which is in possessi on of persons other than the seller must be wary and should investigate the righ ts of those in possession; otherwise, without such inquiry, the buyer can hardly be regarded as buyer in rood faith [Republic vs. de Guzman, 326 SCRA 267). A purchaser cannot close his eyes to facts which should put a reasonable man upon his guard, and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor. His mere refusal to believe tha t such defect exists or his willful closing of his eyes to the possibility of th

e existence of a defect in the vender's title will not make him an innocent purc haser for value, if afterwards it develops that the title was in fact defective, and it appears that he had such notice of the defects as would have led to its discovery had he acted with the measures of precaution which may be required of a prudent man in a like situation (Uy vs. Court of Appeals, 246 SCRA 703) Is there a legal presumption of good faith in favor of a buyer of a land? A: While everyone is presumed to have acted in good faith, the burden of prov ing the status of a purchaser in good faith and for value lies upon him who asse rts that status. In discharging the burden, it is not enough to invoke ordinary presumption of good faith. The good faith that is here essential is integral wit h the very status which must be proved. (Embrado vs. Court of Appeals 233 SCRA 3 35) What is the significance of tax declarations on claims of ownership? A: In the absence of actual, public and adverse possession, the declaration o f the land for tax purposes does not prove ownership. Tax receipts and declarati ons of ownership for taxation, when coupled with proof of actual possession of t he property can be the basis of a claim of ownership through prescription (Ceque na v. Bolante,330 SCRA 2l6) May a possessor who was ousted through force or violence deemed to be the legal possessor? A: No. Possession cannot be acquired through force or violence. For all inten ts and purposes, a possessor, even if physically ousted, is still deemed the leg al possessor. (Cequena vs. Bolante, 330 SCRA 216} What governs the properly relationship between a man and woman living together a s husband and wife without the benefit of marriage? A: Co-ownership, provided that both are not incapacitated to marry. Property acquired by a man living with a common law wife during the subsisten ce of his marriage is conjugal property, even when the property was titled in th e name of the common law wife. (Adriano vs. Court of Appeals, 328 SCRA 738) Art. 538. Possession as a fact cannot be recognized at the same time in tw o different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, 1. the present possessor shall be preferred; 2. if there are 2 possessors, the one longer in possession; 3. if the dates of the possession are the same, the one who presents a title; an d 4. if all these conditions are equal, the thing shall be placed in judicial depo sit pending determination of its possession or ownership through proper proceedi ngs. Possession as a Fact: 1. GENERAL RULE Possession as a fact cannot be recognized at the same time in 2 different personalities (2 people cannot own 1 thing at the same time) 2. EXCEPTIONS: a. Co-possession since here there is no conflict of interest b. Possession in different or degrees such as: * owner in the concept of an owner * tenant in the concept of a holder 3. APPLICATION Art. 538 applies to preference in possession whether real or pers onal property is involved Rule or Criteria to be Used in Case of Conflict or Dispute Regarding Possession: 1. The present possessor shall be preferred 2. If both are present, the one longer is possession 3. If both began to possess at the same time, the one who presents a title such

as a: a. deed of sale b. contract of lease c. MOA 4. If both present a title, the court will determine and in the meantime, the th ing shall be judicially deposited Art. 1544 which applies to PREFERENCE OF OWNERSHIP: 1. Movable Property given to the person who first possessed it in good faith 2. Immovable property given to: a. the first who registered his right in good faith in the ROD b. if there was no registration to the first who possessed in good faith c. if there was no possession to the one who presents the oldest title, provided it had been acquired in good faith EFFECTS OF POSSESSION Art. 539. Every possessor has a right to be respected in his possession; and sho uld he be disturbed therein he shall be protected in or restored to said possess ion by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within 10 days from the filing of the complaint present a motion to secure from the co mpetent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30 days from the filing thereof. The right to: 1. be respected in his possession, 2. be protected or 3. restored to said possession by legal means in case of disturbance of another Reasons for the rule: 1. to prevent a positive attempt against public order; 2. to avoid disturbances in the community; 3. to prevent deprivation of property without due process of law, 4. to avoid taking into his own hands the administration of justice. Remedies: Accion publiciana detainer Action for forcible entry (FISTS) Unlawful Recover material or physical possession of real property when a person originall Definition Accion Reivindicatoria y in possession was deprived thereof by force, intimidation, strategy, threat, o Possession r stealth by a landlord, vendor, vendee or other person of any land or bldg is being unlawfully withheld after the expiration or termination of the right to ho When entry was not obtained thru FISTS or where the implied ld possession, by virtue of any contract, express or1-year period from bringing w/in 1 year Prescriptionfrom unlawful detainer property Action to recoverthe time possessionhas already lapsed forcible entry ordispossession realbecomes unlawful (If fixed, then demand not ownership over w/in 10 otherwise30 yearscounted from date of demand) needed years or period (whether ordinary or extraordinary prescription); does Ownership Who physical right Merehas betterpossession NOT juridical possession jure) Issuelapse by death of possession (Possession de or ownership not Unlawful detainer: 1. Here, the possession was lawful in the beginning but became unlawful afterwar ds 2. Prior possession by the plaintiff is not always essential or a condition sine qua non Millena v. CA (324 SCRA 126) F: Untitled property has been possessed by the Jacob for 40 years. Jacob origina lly bought this from co-owner Listana. The other owner was able to acquire free patent over the whole lot and sold it to Millena. Can prescription be invoked i

n an action for reconveyance when the plaintiff is in possession of the land to be reconveyed? H: No, prescription cannot be invoked in an action for reconveyance when the pla intiff is in possession of the land to be reconveyed. Article 523 of the Civil Code states the possession is the holding of a thin g or the enjoyment of a right. In order to possess, one must first have control of the tiling and, second, a deliberate intention to possess it. These are the e lements of possession. Presumption of Ownership: Art. 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. Art 541: A possessor in the concept of an owner has in his favor the legal presu mption that he possesses with a just title and he cannot be obliged to show or p rove it. "just title" Refers to true and valid title a title which by itself is sufficient to trans fer ownership without the necessity of letting the period elapse (Diolente v. Bi arnessa, 7 P 232) Example: B brought a car from S, the owner thereof. Then S delivered the car to B. B n ow has a valid and true title over the car. Thus, if B possesses and drives the car around as an owner, other people cann ot compel him to prove ownership thereof. Note: For purposes of prescription, "just title" means colorable title or that titl e where although there was a mode of transferring ownership, still something is wrong, because the grantor is not the owner of the thing. Example: In the above example, if it turns out that S is not the owner of the car and somebody else was its owner, B would not be considered as the owner thereof beca use he did not acquire it from the owner of the car, irrespective whether or not he is in good faith. However, for purposes of prescription, his possession is just considered as ju st title of the period required by law depending on whether he is in good faith o r not. 30 8 Bad 10 years 4 years Good faith Realfaith Personal PRESCRIPTIVE PERIOD: Reasons for the presumption: 1. a possessor is always presumed to be in good faith; 2. because of the inconvenience of carrying proofs of ownership around; Requisites in order that the principle Possession is presumed ownership to apply: 1. One must be in possession, actual or constructive; 2. the possession must be in the concept of an owner, not mere holder; (Art 540) Art. 542. The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded. Art. 543. Each one of the participants of a thing possessed in common shall be d eemed to have exclusively possessed the part which may be allotted to him upon t he division thereof, for the entire period during which the co-possession lasted . Interruption in the possession of the whole or a part of a thing possess ed in common shall be to the prejudice of all the possessors. However, in case o f civil interruption, the Rules of Court shall apply.

Rules Regarding the Rights of the Possessor (in the concept of an owner) Art. 544. A possessor in good faith is entitled to the fruits received before th e possession is legally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in g ood faith in that proportion. Art. 545. If at the time the good faith ceases, there should be any natural or i ndustrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession. The charges shall be divided on the same basis by the two possessors. The owner of the thing may, should he so desire, give the possessor in g ood faith the right to finish the cultivation and gathering of the growing fruit s, as an indemnity for his part of the expenses of cultivation and the net proce eds; the possessor in good faith who for any reason whatever should refuse to ac cept this concession, shall lose the right to be indemnified in any other manner . (452a) With respect to the Fruits: 1. If the possessor is in good faith; a. gathered or severed or harvested fruits are his own; b. pending or ungathered fruits - pro-rating between possessor and owner or expe nses, net harvest and charges 2. If the possessor is in bad faith; a. gathered fruits i. he must return the value of the fruits already received, ii. plus the value of the fruits w/c the owner could have received w/ due care a nd diligence, iii. minus necessary expenses for the cultivation, gathering and harvesting of t he fruits, iv. to prevent the owner from being unjustly enriched; b. pending or ungathered fruits i. he has no rights at all, ii. not even to expenses for cultivation because by accession, all should belong to the owner, w/o indemnity Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed theref or. Useful expenses shall be refunded only to the possessor in good faith with th e same right of retention, the person who has defeated him in the possession hav ing the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. Art. 547. If the useful improvements can be removed without damage to the princi pal thing, the possessor in good faith may remove them, unless the person who re covers the possession exercises the option under paragraph 2 of the preceding ar ticle. Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embe llished the principal thing if it suffers no injury thereby, and if his successo r in the possession does not prefer to refund the amount expended.

Art. 549. The possessor in bad faith shall reimburse the fruits received and tho se which the legitimate possessor could have received, and shall have a right on ly to the expenses mentioned in paragraph 1 of article 546 and in article 443. T he expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for whi ch such expenses have been incurred, provided that the thing suffers no injury t hereby, and that the lawful possessor does not prefer to retain them by paying t he value they may have at the time he enters into possession.

With Respect to Expense: Rights of the Possessor Yes Necessary Remove Retain Refund Bad Faith GoodFaith Expenses Yes (Art. 546) Yes N/A (Art. 546) Yes Usefulamount of expense or increase in value N/A (Art. 542) Yes (Art. 546) Luxurious N/A Yes 546) (Art. except when owner exercises option to refund Yes N/A except when owner opts to refund N/A (Art. 549) Yes, 549) (Art.except if owner opts to pay its value Necessary expenses ~ those without which the thing would physically deteriorate or be lost ~ made for the preservation of the thing Useful Expenses ~ those that add value to the property or increase the object s productivity or us eful for the satisfaction of spiritual or religious yearnings or give rise to al l kinds of fruits ~ if only certain or definite possessor would benefit = luxuries ~ if in general, every possessor gains = useful Luxuries = can increase civil fruits, not the industrial or natural fruits

Art. 550. The costs of litigation over the property shall be borne by every poss essor. Art. 551. Improvements caused by nature or time shall always insure to the benef it of the person who has succeeded in recovering possession. Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every c ase, even if caused by a fortuitous event. Liability for Loss or Deterioration 1. Possessor in GOOD FAITH a. BEFORE the receipt of Judicial Summons NOT liable b. AFTER Judicial Summons * Loss or deterioration thru fortuitous event NOT liable * Loss due to fraudulent intent or negligence LIABLE 2. Possessor in BAD FAITH LIABLE whether:

a. before or after judicial summons b. due to fortuitous event or not Art. 553. One who recovers possession shall not be obliged to pay for improvemen ts which have ceased to exist at the time he takes possession of the thing. Art. 554. A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the ab sence of proof to the contrary. Art. 555. A possessor may lose his possession: (1) By the abandonment of the thing; (2) By an assignment made to another either by onerous or gratuitous title; (3) By the destruction or total loss of the thing, or because it goes out of com merce; (4) By the possession of another, subject to the provisions of article 537, if t he new possession has lasted longer than one year. But the real right of possess ion is not lost till after the lapse of ten years. Ways of Losing Possession 1. Thru the Possessor s VOLUNTARY WILL or INTENT a. TOTAL ABANDONMENT b. ASSIGNMENT 2. AGAINST the Possessor s Will a. Possession of another for more than 1 year b. Final judgment in favor of another c. Expropriation d. Prescription in favor of another e. Recovery or reivindication by the legitimate owner or possessor 3. Because of the OBJECT a. DESTRUCTION or TOTAL LOSS of the thing b. Going out of commerce c. Escaping from possessor s control of wild animals Abandonment 1. Definition The voluntary renunciation of the thing 2. Requisites a. The abandoner must have been the possessor in the concept of an owner b. The abandoner must have the capacity to renounce or alienate c. There must be physical relinquishment of the thing d. There must be no more: * spes recuperendi expectation to recover * animus revertendi intent to return of get back e. Abandoner must have knowledge of the loss of possession 3. NOTE: a. After abandonment, the thing is converted to res nullius * But this does not apply to land * Much less to registered land b. In true abandonment both possession de jure and de facto are lost c. There is no abandonment due to temporary ignorance of the whereabouts of the thing d. Mere tolerance does NOT constitute abandonment Assignment 1. Definition The complete transmission of ownership rights to another person: a. onerously as when a thing is sold and delivered b. gratuitously as in the case of donation 2. Distinctions: a. Assignment * at NO time did the thing NOT have a possessor (for possession merely changed h

ands or control) * may in some cases be by onerous title b. Abandonment * there was a time, no matter how short, when the object did not have possessor at all * always gratuitous, otherwise it becomes a virtual assignment 3. NOTE In assignment both possession de facto and de jure are lost Possession of Another 1. If a person is NOT in possession for more than 1 year (but less than 10 years ) a. he loses possession de facto or possession as a fact b. this means that he can no longer bring an action for: * forcible entry or * unlawful detainer c. since the prescription period is 1 year for such actions d. constructive possession is also lost e. but he may still institute an accion publiciana (for a better right of posses sion) to recover possession de jure or the real right of possession 2. If a person loses possession for more than 10 years a. he loses possession de jure or the real right of possession b. accion publiciana or reivindicatoria is still possible c. UNLESS prescription has set in Art. 556. The possession of movables is not deemed lost so long as they remain u nder the control of the possessor, even though for the time being he may not kno w their whereabouts. Art. 557. The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, exc ept in accordance with the provisions of the Mortgage Law and the Land Registrat ion laws. Art. 558. Acts relating to possession, 1. executed or agreed to 2. by one who possesses a thing belonging to another as a mere holder 3. to enjoy or keep it, in any character, 4. do not bind or prejudice the owner, 5. unless he a. gave said holder express authority to do such acts, or b. ratifies them subsequently. RULE ON IRREIVINDICABILITY: Article 559: The possession of movable property acquired in good faith is equiva lent to title. Nevertheless, one who has lost any movable or has been unlawfully deprived th ereof may recover it from the person in possession of the same. If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acqui red in good faith at a public sale, the owner cannot obtain its return without r eimbursing the price paid therefore. Acquired in good faith here means the possessor is of the belief that the per son from whom he received the thing was its owner and could transfer valid title thereto. Requisites for title: 1. That the possession is in good faith, 2. That the owner has voluntarily parted with the possession of the thing, 3. That the possession is in the concept of an owner

GR: Under this situation, if the (real) owner gets the thing, he must REIMBURSE. Exceptions to the Rule: (NOTE: here, there is no reimbursement) 1. When the owner has lost the thing; 2. When the owner has been unlawfully deprived of the thing. Exception to the exception: (this is also equivalent to title) (Note: Here, the owner of the thing shall REIMBURSE the price paid) ~ When the possessor had acquired the thing in good faith at a public auction sa le Instances where there could be no recovery even if the owner offers reimbursemen t: 1. if possessor acquired the thing in good faith by purchase from a merchant sto re or fairs or in MARKETS, in accordance with the Code of COMMERCE or special la ws (Art 1505 NCC; Art 85 of the Code of Commerce); 2. if owner is by his own conduct precluded from denying the seller s authority to sell (estoppel; Art 1505 NCC); 3. holders in due course; (Art. 1518, NCC) 4. finders of lost article after a lapse of six (6) months; (Art 719, NCC) 5. acquisitive prescription; [Art 1132, NCC] Unlawfully deprived, meaning of: Edca Publishing v. Santos (184 S 614) F: fake La Salle teacher, Cruz, bought books, on account from Edca. He was issu ed a receipt. Cruz sold some of the books to Santos. Cruz could not be found any more, so Edca went after Santos H: no unlawful deprivation since there was delivery; unpaid price did not affect the books Article 1477 of the Civil Code provides that the ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. Art 1478 provides that the parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price. It is clear from the above provisions, particularly Art 1478, that owner ship in the thing sold shall not pass to the buyer until full payment of the pur chase price only if there is a stipulation to that effect. Otherwise, the rule i s that such ownership shall pass from the vendor to the vendee upon the actual o r constructive delivery of the thing sold even if the purchase price has not yet been paid. Non-payment creates a right to demand payment or to rescind the cont ract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ow nership to the buyer who can in turn transfer it to another. Actual delivery of the books having been made, Cruz acquired ownership o ver the books which he could then validly transfer to the private respondents. T he fact that he had not yet paid for them to EDCA was a matter between him and E DCA and did not impair the title acquired by the private respondents to the book s. Tagactac vs. Jimenez F: Tagactac sold the car to Feist, who sold it to Sanchez, who sold it to Jimene z. Feist failed to pay, so Tagactac wants to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason of Feist s decep tion. H: no unlawful deprivation since there was delivery The point of inquiry is whether plaintiff-appellant Trinidad C. Tagactac has been unlawfully deprived of her car. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to part with it by reason of the chicanery practiced on her by Feist. Certainly, swindling, l

ike robber is an illegal method of deprivation of property. In a manner of speak ing, plaintiff-appellant was "illegally deprived' of her car, for the way by whi ch Feist induced her to part with it is illegal and punishable by law. But does this unlawful deprivation come within the scope of Article 559 of the New Civil Co de? The fraud and deceit practiced by Feist earmarks this sale as a voidable contract (Art 1390). Being a voidable contract, it is susceptible of either rat ification or annulment. If the contract is ratified, the action to annul it is e xtinguished (Art 1392) and the contract is cleansed from all its defects (Articl e 1396, NCC); if the contract is annulled, the contracting parties are restored to their respective situations before the contract and mutual restitution follow s as a consequence (Art 1398). However, as long as no action is taken by the party entitled, either tha t of annulment or of ratification, the contract of sale remains valid and bindin g. When plaintiff-appellant Tagactac delivered the car to Feist by virtue of sai d voidable contract of sale, the title to the car passed to Feist. Of course, th e title that Feist acquired was defective and voidable. Nevertheless, at the tim e he sold the car to Felix his title was avoided and he therefore conferred good title on the latter, provided he bought the car in good faith, for value and wi thout notice of the defect in Feist s title (Art 1506).

AZNAR vs. YAPDIANGCO (13 S 486) F: Buyer Marella was short of P2,000, so asked Santos to allow her to show the r egistration of the car on her name. Marella ran off with the registration and so ld the car to Aznar. Santos now wants to recover the car from Aznar. Defense of Aznar: Article 1506: Where the seller of goods has a voidable title thereto, but his tit le has not been voided at the time of the sale, the buyer acquired a good title to the goods, provided he buys them in good faith, for value and without notice of the seller s defect or title. H: there is unlawful deprivation since there was no valid transfer Under Art 1506, it is essential that the seller should have a voidable t itle at least. It is very inapplicable where, as in this case, the seller had no t title at all. Marella did not have any title to the property under litigation because the same was never delivered to him. He sought ownership or acquisition of it by virtue of the contract. Marella could have acquired ownership or title to the s ubject matter thereof by the delivery or tradition of the car to him. The car in question was never delivered to the vendee by the vendor as to complete or cons ummate the transfer of ownership by virtue of the contract. It should be recalle d that while there was indeed a contract of sale between Santos and Marella, the latter as the vendee, took possession of the subject matter thereof by stealing the same while it was in the custody of the former s son. Del Rosario vs. Lucena, 8 Phil 535 F: Del Rosario gave her jewelries to Lucena & Verches for consignment. The two p awned the jewelry without Del Rosario s consent. They was subsequently convicted of estafa. Del Rosario now wants the jewelry to be declared as hers but trial co urt ordered that she should first pay P3,500 H: Del Rosario need not reimburse Verches & Lucena No. Teresa Verches accepted the jewelries as a pledge constituted by Praxedes Flores in the name of Pia del Rosario without ascertaining whether the latter ha d given the former any order or authority to pledge the jewelries. Teresa Verche s must stand the risk arising from her acceptance of the pledge, even if when re lying upon her judgment she was improperly or falsely informed. Moreover, Teresa did not fall in any of the exceptions wherein she could lawfu lly refuse to make restitution of the property without reimbursement of the amou

nt en a. b. c.

advanced upon the pledge: If the possessors of personal property lost or stol have acquired it at public sale or at fairs or markets or from a merchant lawfully engaged in similar business.

For this reason, it is therefore improper to compel Pia to reimburse Teresa in the sum of P3.500 which Praceses obtained through the commission of an unlawful act, but that it is proper and in accordance with the law to compel Teresa to r eturn to Pia, absolutely and unconditionally the jewelries in question. Varela vs. Finnick, 9 Phil 482 F: Varela gave Pascual some jewelries to be sold on commission basis. Pascual pa wned them without Varela s consent. Pascual was convicted of estafa. Pawnshop refu sed to return the jewelries to Varela H: Varela is entitle to the jewelries Varella lost the said jewelries and was deprived of the same in consequence of a crime (estafa), therefore entitled to the recovery thereof from the pawnshop of Finnick where they were pledged without reimbursing Finnick the same. Here, not only has the ownership and the origin of the jewelries misappropriat ed been unquestionably proven but also that Pascual, acting fraudulently and in bad faith, disposed of them and pledged them contrary to agreement, with no righ t of ownership, and to the prejudice of Varela who was thereby illegally deprive d of said jewelries. Therefore, in accordance with Art 464, Varella has an absolute right to recove r the jewelries from Finnick in accordance with the judgment entered in the caus e for estafa, wherein Pascual having been found guilty, the right of Varella to recover the jewelries in question is expressly acknowledged. Arenas vs. Raynmundo, 19 Phil 46 F: Parello pledged jewelries to Raymundo s pawnshop. He was subsequently convicted of estafa since Arenas owns the jewelry. Pawnshop refused to return the jewelri es to Arenas H: jewelries must be returned to Arenas The Civil Code prescribes as one of the essential requisites of contracts of pledge and of mortgage that the thing must belong to the person who pledges or mortgages it. The essential requisites for a contract, of pledge between Perello and Raymundo is absent, as Perello was not the owner. Contract was devoid of va lue and force, it cannot confer upon the defendant any right in the pledged jewe lry, and no obligation is imposed toward him on the part of the owner thereof. The possession of personal property acquired in good faith is equivalent to a title thereto. However, the person who has lost personal property or has been i llegally deprived thereof may recover it from whoever possesses it. The owner of things pledged in pawnshops established with the authorization of the government cannot recover lost things without reimbursing the price paid. This exception is not applicable to the present case because a pawnshop does n ot enjoy the privilege established by Article 464, therefore, the plaintiffs who lost said jewelry and deprived of the same are entitled to the recovery thereof from the pawnshop of Raymundo where it was pledged. Raymundo cannot lawfully re fuse to comply with the provisions of Art 120 of the RPC, as it is a question of jewelry that have been misappropriated by the commission of a crime of estafa. Good faith cannot be raised with which the owner of the pawnshop acquired them i nasmuch as they were delivered to the accused, and the accused was not the owner nor authorized to dispose them. US v. Rey (L-3326; 9/7/1907) F: Steamer sank along with money belonging to 3 firms. Rey found the location of the wrecked streamer and took the money there H: there is no abandonment in this case Article 460 of the Civil Code provides how the possessor of property

may lose his possession of the same: 1. By abandonment of the thing. 2. By the transfer to another for a good and valuable consideration. 3. By the destruction of total toss of the thing or by the thing becoming unmark etable, 4. By the possession of another, even against the will of the former possessor, it the new possessor has lasted more than one year. Can one be charged with the abandonment of his property without even knowing t hat the same has passed out of his possession or has been lost? The answer is no . Manresa, in his Commentaries upon the provisions of the Civil Code, says: "He who has a right may renounce it. This act by which thing is voluntary renounced constitutes an abandonment. There is no real intention to abandon a property whe n, as in the casecof a shipwreck or a fire, things are thrown into the sea upon the highway." Certainly the owner of the property cannot be held to have abandon ed the same until at least he at least has some knowledge of the loss of its pos session or of the loss of the thing. Property can not be considered abandoned un der the law and the possession left vacant for the finder until the spes recuper andi is gone and the animus revertendi is finally given up. The mere fact that cargo is sunk with a ship wrecked at the sea by no means de prives the owner of said cargo of his property therein. The owner certainly stil l had the right to reclaim such property and to recover the same if possible. If it should be recovered by others, the real owner would be entitled to recover i ts value less the necessary expense of recovering the same and carrying it shore by the most approved appliances for that purpose by others. United States v. Sotelo (28 P 147) If A entrusts money to B who later gives the same to C, an innocent recipien t for value, A, cannot recover the money (or negotiable document) from C since m oney ordinarily does not bear the earmarks of particular ownership. BUT if inste ad of money, the object had been an identifiable one, then recovery can be had f or C had acquired same from someone (B) who had no authority to dispose of the s ame. And such recovery does not need reimbursement. C should require the indemni ty from B and not A. Art. 560. Wild animals are possessed only while they are under one's control; do mesticated or tamed animals are considered domestic or tame if they retain the h abit of returning to the premises of the possessor. Art. 561. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it wi thout interruption. USUFRUCT IN GENERAL Article 562: Usufruct gives a right to enjoy the property of another with the ob ligation of preserving its forms and substance, unless the title constituting it or the law otherwise provides. Rights of Full Owner = DISPOSE + USE + FRUITS FULL OWNERSHIP = Naked Ownership + Usufruct Characteristics: (mem) 1. Essential (Usufruct cannot exist without these) a. Real right; b. Temporary in nature; c. Purpose is to enjoy the benefits; 2. Natural (Ordinarily present but may be eliminated by agreement) a. Obligation to conserve and preserve 3. Accidental (may or may not be present depending upon the stipulation of the p

arties) Limited What can Involves be Object only real property Easmentmay aenjoyedor personal property Usufructto beparticular ALL uses and the fruits of the property are use It cannot be constituted on an easement but it can be constituted on the land bu Not extinguished by Usually extinguishedthe death of burdening, the dominant estate May be constituted in favor deaththe owner of a piece rdened by am easementby the of, orof the usufructuary of land held in usufruct Art. 563. Usufruct is constituted 1. by law, 2. by the will of private persons expressed a. in acts inter vivos or b. in a last will and testament, and 3. by prescription. How is Usufruct created: 1. by law; a. Articles 225 and 226 of the Family Code, Art 321 of the Civil Code b. The property of an emancipated child is owned exclusively by the child and sh all be devoted solely for his support and education. As to the fruits or income of the property, the rights of the parents over the same shall be limited only t o the child's support and collective daily needs of the family. 2. by contract or agreement; 3. by last will and testament. Rules governing usufruct: 1. Agreement; (or the title giving the usufruct) 2. Civil Code. Art. 564. Usufruct may be constituted 1. on the whole or a part of the fruits of the thing, 2. in favor of one more persons, simultaneously or successively, and 3. 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 perso nal or intransmissible. Art. 565. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the 2 following Chapters shall be obs erved. RIGHTS OF THE USUFRUCTUARY: 1. He is entitled to all natural, industrial and civil fruits if the property bu t w/ respect to the hidden treasure, he is a stranger unless he is the finder he gets (Art. 566) 2. To enjoy all the accessions whether natural or artificial all benefits inhere nt in the property 3. To enjoy the thing by himself or thru another he can: a. appoint an administrator b. lease the property to another but NOT longer than the term of the usufruct c. alienate, sell, donate his usufructuary rights (Art. 572) 4. To make use of things included in the usufruct w/c gradually deteriorate thru wear and tear abnormal usufruct (Art. 573) 5. To make use of consumable things given in usufruct quasi- usufruct (Art. 574) 6. To make use of dead tree trunks- special usufruct (Art. 575) 7. To make useful or luxurious improvements for mere pleasure

FIRST: The usufructuary shall be entitled to all the natural, industrial and civil frui ts of the property in usufruct. With respect to hidden treasure which may be fou nd on the land or tenement, he shall be considered stranger. (Art 566) 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 usufru ct, has no obligation to refund to the owner any expenses incurred; but the owne r shall be obliged to reimburse at the termination of the usufruct, from the pro ceeds 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 3rd per sons, acquired either at the beginning or at the termination of the usufruct. Art. 568. If the usufructuary has leased the lands or tenements given in usufruc t, and the usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent tha t must be paid by the lessee. Art. 569. Civil fruits are deemed to accrue daily, and belong to the usufructuar y in proportion to the time the usufruct may last. Art. 570. Whenever a usufruct is constituted on the right to receive a rent or p eriodical pension, whether 1. in money or 2. in fruits, or 3. in the interest on bonds or securities payable to bearer each payment due shall be considered as the proceeds or fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a partic ipation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits, and shall be a pplied in the manner prescribed in Art. 569. Rules: 1. Pending natural or industrial fruits; a. growing at the time the usufruct begins belong to the usufructuary; i. Here, the usufructuary has no obligation to refund for the expenses but witho ut prejudice to the right of third persons. ii. Thus, if the fruits had been placed by a possessor in good faith, the pendin g crop expenses and charges shall be pro-rated between said possessor and the us ufructuary (Art 545) b. Those growing at the time the usufruct terminates, belong to the naked owner (Art 567) i. Here, the naked owner is obligated to reimburse the expenses incurred for the ordinary cultivation and seeds and other similar expenses from the proceeds of the fruits. ii. Hence, the excess of expenses over the proceeds need not be reimbursed. 2. Civil Fruits: (Rents, pensions, benefits, etc.) [Art 570] a. Stock dividends, cash dividends, and profits of a partnership are civil fruit s b. they shall be deemed to accrue proportionately to the naked owner and usufruc

tuary for the time the usufruct lasts. Example: A gave B in usufruct the profits of a certain building for five (5) yea rs. If the usufruct lasts for the period stipulated, all the profits during the said period will go to B. Suppose however, B died at the end of three (3) years, and the following were the profits from the building: 120,000 Total 5 4 3 2 10,000 Profit Year Ratio is 3:2, thus share of B is P72,000 while that of A is P48,000 SECOND. The usufructuary has the right to the enjoyment of 1. accessions (whether artificial or natural), 2. servitudes and easements; 3. all benefits inherent in property (i.e.: the right to hunt and fish therein; the right to construct rain water receptacles) (Art 571) THIRD. The usufructuary, in addition to the usufruct (as a right) may: (Article 572) 1. enjoy the thing itself or thru another; 2. lease the thing to another (for a period not longer than that of the usufruct ) even without the naked owner s consent: 3. alienate, sell, donate, bequeath, or devise, sell or pledge the usufructuary right (not the thing itself or future crops, for crops pending at the terminatio n of the usufruct belong to the naked owner.) ~ Usufruct that cannot be alienated o a legal usufruct the usufruct w/c parents have over the property of their unem ancipated children (Art 226(2) FC) o usufruct granted a usufructuary in consideration of his person o usufruct acquired thru a caucion juratoria for here the need of the usufructua ry himself is the reason for the enjoyment

FOURTH. The usufructuary has the right to MAKE USE of things included in usufruct whi ch gradually deteriorate without being consumed, through wear and tear, in accor dance with the purpose for which they were intended. (Abnormal Usufruct) (Articl e 573) Examples: Clothes, furniture, vehicles, books etc. Effect of the deterioration: 1. Because of normal use = the usufructuary is not liable. a. He can return them in the condition they might be in at the termination of th e usufruct. b. There is no necessity for him to make any repairs to restore them to their fo

rmer condition. c. Although there is no express provision on the matter, if the usufructuary doe s not return the things upon the expiration of the usufruct, he shall pay an ind emnity for the value of the thing at the time of such expiration. 2. Because of fortuitous event = usufructuary is obliged to make the necessary a nd ordinary repairs (Art 592). a. But the deterioration thru normal use does not require the ordinary repairs r eferred to under Art 592. 3. Because of fraud = the usufructuary is responsible. a. But such liability may be set off against improvements (Art 580); FIFTH: The usufructuary has the right to MAKE USE of consumable things in usufruct (qua si-usufruct) [Art 574] ~ The principle of creditor-debtor relationship applies (bec. the form and subst ance is not really preserved; thus, this is really a simple loan) ~ Here, the usufructuary becomes the owner of the things (consumable) in usufruc t, such as a sum of money or a quantity of liquid of grain but he has the obliga tion o to pay the current price or o return the things of the same quantity and quality at the time the usufruct ce ases. SIXTH. The usufructuary of fruit-bearing trees and shrubs has the right to make use of the dead trunks, and even of those cut off or uprooted by accident (special usuf ruct) [Art 575] Here, the usufructuary is obliged to replace with new plants. Other SPECIAL USUFRUCTS OF: 1. Periodical pension, income, dividends (Art. 570) 2. Woodland (Art. 577) 3. Right of action to recover real property, real right or movable property (Art . 578) 4. Part of property owned in common (Art. 582) 5. The entire patrimony of a person (Art. 598) 6. Mortgaged immovable (Art. 600) 7. Flock or herd of livestock (Art. 591) Art. 576. If in consequence of a calamity or extraordinary event, the trees or s hrubs shall have disappeared in such considerable number that it would not be po ssible 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 th at the latter remove them and clear the land. Art. 577. The usufructuary of woodland may enjoy all the benefits which it may p roduce according to its nature. If the woodland is a copse or consists of timber for building, the usufr uctuary may do such ordinary cutting or felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the custom of th e place, as to the manner, amount and season. In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land. In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow. With the exception of the provisions of the preceding paragraphs, the us ufructuary cannot cut down trees unless it be to restore or improve some of the things in usufruct, and in such case shall first inform the owner of the necessi

ty for the work. Art. 578. The usufructuary of an action to recover real property or a real right , or any movable property, has the right to bring the action and to oblige the o wner thereof to give him the authority for this purpose and to furnish him whate ver proof he may have. If in consequence of the enforcement of the action he acq uires the thing claimed, the usufruct shall be limited to the fruits, the domini on remaining with the owner. SEVENTH: The usufructuary has the right to make: 1. useful improvements, 2. luxurious improvements done for mere pleasure. [579] However: 1. He must not alter the form or substance of the property held in usufruct unle ss the naked owner consents; 2. He is not entitled to a refund but a. he may either i. remove the improvement if no substantial damage to the property is caused (Ar t 579); or ii. to set off (compensate) the improvements against damages for which he may be liable (Art 580). b. His right does not involve an obligation, hence, if the usufructuary does not wish to exercise it, he cannot be compelled by the naked owner to remove his im provements. c. The option to remove is granted to the usufructuary.

Art. 580. The usufructuary may set off the improvements he may have made on the property against any damage to the same. Rule in case of set off: (Art 580) a. If damage is greater than the improvement - usufructuary is liable for the excess b. If improvement is greater than the damage - the naked owner is not liable t o refund the excess Art. 581. The owner of property the usufruct of which is held by another, may al ienate it, but he cannot: 1. alter its form or substance, or 2. do anything thereon which may be prejudicial to the usufructuary. Art. 582. The usufructuary of a part of a thing held in common shall exercise al l the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing hel d in common, the usufruct of the part allotted to the co-owner shall belong to t he usufructuary. If a co-owner of a property gives the usufruct of his share to another: (Art 582 ) 1. The usufructuary takes the co-owner s place as to:

a. administration or management; b. collection of fruits or interest 2. but not as to alienation, disposition, or creation of any real right over the property, since these are strict acts of ownership, unless authorized by the na ked owner Effect of Partition: 1. The usufructuary continues to have the usufruct of the part allotted to the c o-owner concerned. 2. The co-owner may partition the property even without the consent of the usufr uctuaruy and the partition is binding upon the usufructuary. a. However, the naked owner (co-owner) must respect the usufructuary. Obligations of the Usufructuary: General Obligations of the Usufructuary: 1. BEFORE the usufruct Make an inventory 2. DURING the usufruct - Take care of the property 3. AFTER the usufruct Return property and indemnify in proper cases Art. 583. The usufructuary, before entering upon the enjoyment of the property, is obliged: 1. To make, after notice to the owner or his legitimate representative, an inven tory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables; 2. To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. General Rule: The usufructuary BEFORE entering upon the enjoyment of the propert y is obliged: 1. to make after notice to the owner an inventory of all property which shall co ntain a. appraisal of the movables and b. description of the condition of the immovable: 2. to give SECURITY, binding himself to fulfill the obligations imposed upon him . ~ The obligation to make inventory and to give security are not necessary in ord er for the right to the usufruct begins but are merely required before physical possession and enjoyment of the property can he had. EXCEPTION: Inventory is not required when: 1. no one will be injured thereby a. as in the case of usufruct over a periodical pension or incorporeal right (Ar t 570), b. provided the naked owner consents for the law says may (Art 585); 2. in case of waiver by the naked owner; or 3. when there is stipulation (in a will or contract) Security is not required when: 1. no one will be injured thereby a. as in the case of usufruct over a periodical pension or incorporeal right (Ar t 570), b. provided the naked owner consents for the law says may" (Art 585); 2. in case of waiver by the naked owner; or when there is stipulation (in a will or contract), 3. When the usufructuary is the donor of the property (who has reserved the usuf ruct) (The naked owner should be grateful enough not to acquire the security.) 4. There is a parental usufruct 5. In cases of caucion juratoria (promise under oath) Art 587.

Art. 584. The provisions of No. 2 of the preceding article shall not apply to: 1. the donor who has reserved the usufruct of the property donated, or 2. to the parents who are usufructuaries of their children's property, except wh en the parents contract a second marriage. Art. 585. The usufructuary, whatever may be the title of the usufruct, may be ex cused from the obligation of making an inventory or of giving security, when no one will be injured thereby. Art. 586. Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner may demand: 1. that the immovables be placed under administration, 2. that the movables be sold, 3. that the public bonds, instruments of credit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institu tion, and 4. that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe securities. The interest on the proceeds of the sale of the movables and that on pub lic securities and bonds, and the proceeds of the property placed under administ ration, shall belong to the usufructuary. Furthermore, the owner may, if he so prefers, until the usufructuary giv es security or is excused from so doing, retain in his possession the property i n usufruct as administrator, subject to the obligation to deliver to the usufruc tuary the net proceeds thereof, after deducting the sums which may be agreed upo n or judicially allowed him for such administration. Art. 587. If the usufructuary who has not given security claims, by virtue of a promise under oath, the delivery of the furniture necessary for his use, and tha t he and his family be allowed to live in a house included in the usufruct, the court may grant this petition, after due consideration of the facts of the case. The same rule shall be observed with respect to implements, tools and ot her movable property necessary for an industry or vocation in which he is engage d. If the owner does not wish that certain articles be sold because of thei r artistic worth or because they have a sentimental value, he may demand their d elivery to him upon his giving security for the payment of the legal interest on their appraised value. Caucion Juratoria: (587) A sworn duty to take good care of the property and return the same at the end of the usufruct. Caucion Juratoria only applies to: 1. furniture necessary for the use of the usufructuary; 2. house which his family may live; 3. tools or implements and other movables necessary for an industry or vocation which the usufructuary is engaged, and the usufructuary cannot afford to give th e required security, he may file a petition before the courts to allow him to en joy possession of the said properties in usufruct and swear under oath to take g ood care and return them at the end of the usufruct. Art. 588. After the security has been given by the usufructuary, he shall have a right to all the proceeds and benefits from the day on which, in accordance wi th the title constituting the usufruct, he should have commenced to receive them . (has retroactive effect) Art. 589. The usufructuary shall take care of the things given in usufruct as a

good father of a family. Art. 590. A usufructuary who alienates or leases his right of usufruct shall ans wer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him. Art. 591. If the usufruct be constituted on a flock or herd of livestock, the us ufructuary shall be obliged to replace with the young thereof the animals that d ie each year from natural causes, or are lost due to the rapacity of beasts of p rey. If the animals on which the usufruct is constituted should all perish, w ithout the fault of the usufructuary, on account of some contagious disease or a ny other uncommon event, the usufructuary shall fulfill his obligation by delive ring 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 th e 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. RULE ON ORDINARY 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 preservat ion. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. These are repairs needed because of an event or an act that endangers the pre servation of the thing (distinguished from deterioration under Article 572). Conditions for liability: 1. they are required by normal or natural use ; 2. they are needed for preservation, 3. they must have occurred during the usufruct; 4. they must have happened without the fault of the usufructuary ~ If the naked owner had demanded the repair, and the usufructuary still fails t o do so, the owner may make them personally or through another at the expense of the usufructuary. RULE ON EXTRA-ORDINARY REPAIRS 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 r epairs is urgent. Art. 594. If the owner should make the extraordinary repairs, he shall have a ri ght 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, 1. the usufructuary may make them; 2. but he shall have a right to demand of the owner, 3. at the termination of the usufruct, 4. the increase in value which the immovable may have acquired by reason of the repairs.

Kinds of Extraordinary Repair & Who Should Pay for Them The caused by Thoseof Repair Who NAKED Pay KindShouldOWNER NATURAL USE but NOT NEEDED for preservation whether or not he is notified by the usufructuary 1. BUT he is NOT required to make the repairs Those caused when it is or EXCEPTIONAL circumstances and NEEDED for preservatio 2. It is ONLYby ABNORMAL made that the expenses must be borne by the naked owner n 1. as when an earthquake renders the stairs of the house unsafe The NAKED lightning splits table is notified by the usufructuary 2. or whenOWNER whether oranot he into 2 1. The naked owner CANNOT be compelled to make the repairs 2. BUT the usufructuary is allowed to make them with the right: a. to get increase in value (regardless of whether the expense is greater than t he increase) b. of retention until paid at the termination of usufruct c. PROVIDED: * There was NOTIFICATION, and Those caused by ABNORMAL or EXCEPTIONAL * FAILURE to repair by the naked owner circumstances but are NOT needed for pre The NAKED servation OWNER whether or not he is notified by the usufructuary 1. the usufructuary CANNOT compel the naked owner to make them 2. NOR is the usufructuary allowed to make them because there is no necessity fo r preservation here 3. BUT if the naked owner makes the repairs, he can ask for legal interest w/ re spect to the amount spent NOTE ty The naked owner pays for the extraordinary repairs because it is his proper

Rights of the Naked Owner If He Makes the Extraordinary Repairs: 1. He can demand from the usufructuary the legal interest on the amount spent fo r the duration of the usufruct 2. Reason because the usufructuary has benefited from the repair, otherwise, the thing may not be properly used Requisites Before the Usufructuary is Allowed to Make the Extraordinary Repairs: 1. There must be due notification to the naked owner of the urgency 2. The naked owner failed to make them 3. The repair is needed for preservation Rights of the Usufructuary Who Has Made the Extraordinary Repairs: 1. He can a. get an increase in the value of the thing repaired (difference between the va lue before and the value after the repair) b. get reimbursement for expenses 2. He has the right of retention until he is paid (reimbursement is to be made O NLY at the END of the usufruct) Art. 595. The owner may 1. construct any works and make any improvements of which the immovable in usufr uct is susceptible, or 2. make new plantings thereon if it be rural, provided that such acts: 1. do not cause a diminution in the value of the usufruct or 2. prejudice the right of the usufructuary. Art. 596. The payment of annual charges and taxes and of those considered as a l ien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. Rules Regarding Taxes Imposed Directly on Capital: (Art 597)

1. It is the responsibility of the naked owner to pay for them 2. If paid by the naked owner he can demand legal interest on the amount paid 3. If advanced in the meantime by the usufructuary, said usufructuary a. should be reimbursed the amount paid w/o legal interest * made at the end of the usufruct if the usufructuary paid voluntarily * made immediately if the usufructuary had been forced to pay b. is entitled to retention until paid Art. 598. If 1. the usufruct be constituted on the whole of a patrimony, and 2. at the time of its constitution the owner has debts, the provisions of Art. 758 and 759 relating to donations shall be applied, both with respect to 1. the maintenance of the usufruct and 2. the obligation of the usufructuary to pay such debts. The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make periodical payments, even if there should be no known capital. Art. 599. The usufructuary may claim any matured credits which form a part of th e usufruct if he has given or gives the proper security. If he has been excused from giving security or has been able to give it, or if that given is not suffic ient, he shall need the authorization of the owner, or of the court in default t hereof, to collect such credits. The usufructuary who has given security may use the capital he has colle cted in any manner he may deem proper. The usufructuary who has not given security shall invest the said capita l at interest upon agreement with the owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to preserve the integrity of the capital in usufruct. Art. 598 applies if: 1. The usufruct is a UNIVERSAL one (constituted on the whole patrimony of the na ked owner) 2. The naked owner: a. has debts, or b. is obliged to make periodic payments 3. A person donated everything but reserved to himself the usufructuary thereof Rules governing the payment of debts of the naked owner 1. If there is stipulation to pay the debts of the naked owner: Apply Art. 758 a. to pay only for prior debts and not for debts contracted after the usufruct h as been made, unless there is a declaration to the contrary; b. pay only for debts up to the value of the property of usufruct unless, the co ntrary is intended 2. If there is no stipulation to pay the debts of the naked owner, apply Art. 75 9: a. As a rule, there is no obligation to pay: b. the only exception is that when the usufruct was constituted in fraud of cred itors in fraud of creditor When at the time of the constitution of usufruct, the naked owner did not res erve sufficient property to pay his debts. This is presumed. Art. 599. The usufructuary may claim any matured credits which form a part of th e usufruct if he has given or gives the proper security. If he has been excused from giving security or has been able to give it, or if that given is not suffic ient, he shall need the authorization of the owner, or of the court in default t

hereof, to collect such credits. The usufructuary who has given security may use the capital he has colle cted in any manner he may deem proper. The usufructuary who has not given security shall invest the said capita l at interest upon agreement with the owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to preserve the integrity of the capital in usufruct. Art. 600. The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of which the mortgage was constituted. Should the immovable be attached or sold judicially for the payment of t he debt, the owner shall be liable to the usufructuary for whatever the latter m ay lose by reason thereof. Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rig hts of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault.

When the Usufructuary is Required to Notify the Naked Owner: If a 3rd party commits acts Effects Usufructuary is Required to Notify the rights of ownership (both rights of When theof Non-Notification prejudicial to the Naked Owner the usufructuary and the naked owner) * as in disturbance of to the possession by the usufructuary The usufructuary is liable for damages as if they have been cause by his own fau lt If urgent repairs are needed If usufructuary cannot beginning of extraordinary repairs Thean inventory (at the even make thethe usufruct) is made needed The inventory can go on but the naked owner may later point out the discrepancie s and the omissions in the inventory Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary. EXTINGUISHMENT OF USUFRUCT Art. 603. Usufruct is extinguished: 1. By the death of the usufructuary, unless a contrary intention clearly appears ; 2. By the a. expiration of the period for which it was constituted, or b. fulfillment of any resolutory condition provided in the title creating the us ufruct; 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. DEATH of the USUFRUCTUARY 1. Extinguishes the usufruct 2. Exceptions: a. in the case of a multiple usufruct it ends on the death of the last survivor b. if there is a period fixed on the number of years that would elapse before a person would reach a certain age UNLESS the period was expressly granted in cons ideration of the existence of such person, in w/c case it ends as the death of s uch person * Example until X who is now 25 years old will become 40 where the period is 15 years

c. in case the contrary intention CLEARLY appears * Example A was made a usufructuary only in order that he could enable his son B , to get a college degree :) even if A dies before B graduates :) the usufruct is deemed to continue OTHER CAUSES for EXTINGUISHMENT of USUFRUCT: 1. Annulment 2. Rescission 3. Mutual withdrawal 4. Legal causes ending legal usufruct as when attainment of the age of majority extinguishes parental usufruct NOTE: 1. Usufruct is not extinguished: a. By abuse of misuse of the usufruct, unless by virtue of the abuse or misuse, the thing has been totally lost b. By non-fulfillment of a suspensive condition for the reason that the usufruct never came into existence Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part. Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or ass ociation for more than 50 years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof. Art. 606. A usufruct granted for the time that may elapse before a 3rd person a ttains a certain age, shall subsist for the number of years specified, even if t he 3rd person should die before the period expires, unless such usufruct has bee n expressly granted only in consideration of the existence of such person. Example 1. A gave B his land in usufruct until C becomes 40 years old. A constituted the usufruct when C was 20. a. This means that the usufruct should last for 20 years b. Even if C dies before attaining the age of 40 c. If C dies at the age of 30 the usufruct in B s favor generally continues 2. Exception If B was made the usufructuary only because he had to support C a. It follows that the usufruct was expressly constituted only in consideration of the existence of C b. Thus on C s death, the usufruct ends Art. 607. If the usufruct is constituted on immovable property of which a buildi ng 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 build ing only and the same should be destroyed. But in such a case, if the owner shou ld 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, duri ng the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials. Rules when the Bldg is destroyed in any manner before the expiration of the Usuf ruct (607) Use What Continues Ends the usufructuary can bldg enjoy endsof the: Usufruct on the bldg the still & land If the usufruct is both onbldg alone land on 1. land; and

Use of the: 2. remaining materials of the bldg 1. land; and If the naked owner wants the bldg 2. remaining materials ofto rebuild, but the usufructuary refuses, whose decisio Usufructuary he has the obligationstill his for the remaining period interest upo n willOwner Naked perevail? because the land is to pay the usufructuary the legal n the sum equivalent to the value of the land and materials Art. 608. If the usufructuary shares with the owner the insurance of the tenemen t given in usufruct, the usufructuary shall, in case of loss, continue in the en joyment of the new building, should one be constructed, or shall receive the int erest 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 owner shall receive the full amount of t he insurance indemnity in case of loss, saving always the right granted to the u sufructuary in the preceding article.

What happens to the Insurance Proceeds after the Bld is Destroyed (608) If case the naked ownerw/is:the the thepremiumsmaterials Thethe valueon ownerbldgaloneandinsuranceland &usufruct continues on the new bldg In the is contributed respect to bldg Usufruct naked both the to Onlyusufruct ofthe bldg wants to rebuild the Usufructuary continues land insurance premiums the paid the 1. less than the insurance indemnity = usufructuary is entitled to the legal int erest as to the difference 2. more than the insurance indemnity = naked owner is not entitled to any intere If naked owner is wants Thethe naked owner entitled rebuild and proceeds of refuses st as to the difference to to the wholeusufructuary the insurance indemnity naked owner prevail If the naked owner no usufruct over the land s because there waswants to rebuild and usufructuary refuses usufructuary prevai If naked the may rebuild rebuild:w/out consent of the usufructuary Thethe naked owner does overwith land thethe consent of the usufructuary ls becauseownerusufructrebuild withoutcontinues cannot not the or 1. usufructuary is entitled to interest on the insurance indemnity 2. naked owner gets the insurance indemnity In case the naked entitled not rebuild: 3. usufructuary isowner doesto the use of the land 1. usufructuary is entitled to interest on the insurance indemnity 2. naked owner gets the insurance indemnity If 3. the usufruct continues w/=respect to the land and materials of the land and naked owner rebuilds he must pay interest on the value If old materials build w/ the consent of thethe naked ownerthat may have been used the usufructuary: 1. there is no usufruct over the new bldg 2. BUT the naked owner is liable to pay the usufructuary interest over the land and materials Art. 609. Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace it with another thing of the same value and of similar conditions, or to pay the usufructuary the legal interest on the amou nt of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest. Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; bu t if the abuse should cause considerable injury to the owner, he may demand that the thing be delivered to him, binding himself to pay annually to the usufructu ary the net proceeds of the same, after deducting the expenses and the compensat ion which may be allowed him for its administration. Art. 611. A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until death of the last surv ivor. Art. 612. Upon the termination elivered to the owner, without the usufructuary or his heirs be reimbursed. After the delivery has elled. of the usufruct, the thing in usufruct shall be d prejudice to the right of retention pertaining to for taxes and extraordinary expenses which should been made, the security or mortgage shall be canc

EASEMENTS OR SERVITUDES Art. 613. An easement or servitude is an encumbrance imposed upon an immovable f or the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called th e dominant estate; that which is subject thereto, the servient estate. 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. Easement is an encumbrance imposed upon an immovable for the benefit of: 1. community OR one or more persons = personal easement 2. another immovable belonging to a different owner = real easement (Article. 61 4) Immovable: The term immovable must be construed in its common and not legal sense. Hence i t refers to immovable by nature, such as lands, roads, and buildings Servient estate = is one which is burdened by servitude: Dominant estate = is one that is benefited as a result of an easement (VIP) Characteristics of Easement: 1. it is a real right; 2. imposable only against another s property and never in one s own property; it can exist only when the servient estate and the dominant estate belongs two differe nt persons 3. it is a form of limitation on ownership and restriction on the enjoyment of o ne s own property 4. it is inseparable and indivisible; it cannot be separated from the tenement t o which it belongs or divided even if there is a division of the tenement (see A rt 617 & 618) 5. it is intransmissible (unless the tenement affected is also transmitted or al ienated); 6. it is perpetual unless extinguished Art. 615. Easements may be: 1. continuous or discontinuous, 2. 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 ke pt in view by external signs that reveal the use and enjoyment of the same. Nonapparent easements are those which show no external indication of the ir existence. Art. 616. Easements are also positive or negative. A positive easement is one which imposes upon the owner of estate the obligation of allowing something to be done or of doing A negative easement, that which prohibits the owner of the te from doing something which he could lawfully do if the easement . the servient it himself. servient esta did not exist

Easements may also be: I. According to the MANNER they are exercised or used: 1. Continuous easements - are those the use of which is or may be INCESSANT (wit hout any interruption) or without the intervention of any act of man;

a. Note: Here, for easement to be "continuous the use does not have to be without interruption; it is enough that it MAY BE incessant; b. Note: The distinction between continuous and discontinuous easements refers o nly to the exercise of the servitude, but not to the essence, because the servit ude exists continuously, whether it is being used or not. c. Examples: i. Easements of drainage = the fact that water flows in it signifies continuous use but the absence of any flow does not make it non-continuous. It is enough th at the flow of water may be without interruption; ii. Easements of aqueduct - it is considered as continuous at least for purposes of prescription) even though the flow of water may not be continuous, or its us e depends upon the needs of the dominant estate, or upon a schedule or alternate days or hours 2. Discontinuous Easements = they are used at intervals and depend upon the acts of man. a. Example: Easement of right of way because it can be exercised only if a man p asses or puts his feet over somebody else s land.

II. According to whether or not their EXISTENCE is indicated: 1. APPARENT Easement = those made known and continually kept in view by external signs that reveal the use and enjoyment of the same a. The sign need not be seen but should be susceptible of being seen. b. Example: i. a dam; ii. a window in the party wall visible to both owners; iii. a right of way if there is an alley or a permanent path; 2. NON-APPARENT Easements - they show no external indication of their existence a. Examples: (in general, negative easements) i. Easement of building more than certain height; ii. A right of way if there is no visible path or alley III. According to PURPOSE of the easement or nature of the limitation: 1. Positive Easement (servitude of sufferance) = Here, the owner of the servient estate as OBLIGED a. to allow something to be done on his property; or b. to do something himself on his property. c. Example: i. Easement of light and view on openings made on a PARTY WALL * If one opens a window on a party wall the other owner may close it anytime. Ho wever, if he does not close it, and the other owner acquires the easement by pre scription, the other owner can no longer close it. Therefore, the owner of the s ervient estate is allowing something to be done on his property. * Note: Easement of light and view on a party wall: Here, the owners of such wal l permit the encumbrance to burden their common wall. ii. the owner of the servient estate has the duty to cut off the branches of his tree extending over the neighboring estate 2. NEGATIVE Easements (servitude of limitation) = Here, the owner of the servien t estate is prohibited to do something which he could lawfully do were it not fo r the existence of the easement a. Example: Easement of light and view on openings made on one's OWN WALL i. When a person makes an opening on his own wall to admit light below the ceili ng joist, and he acquires a servitude to admit such light, the servitude is a ne gative one, because it imposes upon the owner of the adjacent tenement the oblig ation not to construct on his own land in such a manner as to obstruct the light . Art. 617. Easements are inseparable from the estate to which they actively or pa ssively belong.

Art. 618. Easements are indivisible. If the servient estate is divided between 2 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 2 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. How are easements established? Art 619: Easements are established either by law (legal easements) or by will of the owners (voluntary easements) MODES OF ACQUIRING EASEMENTS: Art 620: Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. 1. Continuous and apparent easements (meaning they are continuous and apparent a t the same time) may be acquired by: a. Title i. Does not necessary mean documents ii. any kind of juridical act or law sufficient to create the encumbrance iii. such as: contract, donation, testamentary succession b. Prescription = 10 years whether in good faith or in bad faith c. Note: Art 1115 general rules on prescription are not applicable in cases of p rescription provided for by Special or particular provisions 2. Discontinuous and apparent = only by title, 3. Continuous and apparent = only by title; 4. Discontinuous and non-apparent = only by title. How can continuous and apparent easements be acquired thru prescription: Art. 621. In order to acquire by prescription the easements referred to in the p receding article, the time of possession shall be computed thus: 1. 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 2. 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 easeme nt. Continuous and apparent easement may be either positive or negative depending upon whether or not a "sufferance" or a ''limitation" is to be made. 1. If easement is POSITIVE = the period of prescription is counted from the day of the dominant estate began to exercise it: a. Example: A and B are neighbors and they own a party wall. If A makes an openi ng or window in the party wall in 1988, B can close it anytime before 1998. Beca use if by the time the window is still open, A has already acquired the easement of light and view by prescription of 10 years, counted from the opening of the window b. Note: A window on a party wall is something allowed by a co-owner to be done on his own property and may therefore give rise to a positive easement of suffer ance 2. if the easement is NEGATIVE = the period is counted from the date of NOTARIAL PROHIBITION made upon the servient estate. 3. Example: A and B are neighbors. On the wall of his building, A opened a windo w beneath the ceiling joist to admit light in 1978. Even after 10 years (1988), B may still obstruct the light by constructing on his own lot a building higher than A s unless A makes a Notarial Prohibition prohibiting B from making the obstr uction.

If in 1984, A makes a prohibition, may B still make the obstruction? Ans: Yes, because, it is only in 1994 (ten years after the notarial prohibiti on) when A may be said to have acquired the negative easement of light and view. After 1994, B may no longer obstruct. Why can negative easements be acquired by prescription despite the fact that the y are non-apparent? Because of the notarial prohibition, w/c makes apparent what is really non-ap parent Art. 622. Continuous non-apparent easements, and discontinuous ones, whether app arent 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 w hich 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 (Apparent sign of easement) The existence of an apparent sign of easement between two estates, 1. established or maintained by the owner or both, 2. shall be considered, 3. should either be alienated, as a title 4. in order that the easement may continue actively or passively, 5. unless at the time the ownership of the two estates is divided, a. the contrary should be provided in the Title of the Conveyance of either of t hem, or b. 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 c ommon by two or more persons. 1. Refers not to an existing sign but a sign of an existing easement; 2. It is the servitude between the two tenements which must exist, not the sign Art. 625. Upon the establishment of an easement, all the rights necessary for it s use are considered granted. Art. 626. The owner of the dominant estate cannot use the easement except for th e benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previ ously established. Rights and Obligations: Art. 627. The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude , but without altering it or rendering it more burdensome. For this purpose he shall notify the owner of the servient estate, and s hall choose the most convenient time and manner so as to cause the least inconve nience to the owner of the servient estate. Art. 628. Should there be several dominant estates, the owners of all of them sh all be obliged to 1. contribute to the expenses referred to in Art. 627, 2. in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others. If the owner of the servient estate should make use of the easement in a

ny manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary. Art. 629. The owner of the servient estate cannot impair, in any manner whatsoev er, the use of the servitude. Nevertheless, if by reason of the place originally assigned, or of the m anner established for the use of the easement, 1. the same a. should become very inconvenient to the owner of the servient estate, or b. should prevent him from making any important works, repairs or improvements t hereon, 3. it may be changed at his expense, 4. provided he offers another place or manner equally convenient and 5. in such a way that no injury is caused thereby to the owner of the dominant e state or to those who may have a right to the use of the easement. 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 n ot to affect the exercise of the easement. RIGHTS of the DOMINANT Estate 1. To EXERCISE the easement and all necessary rights for its use including acces sory easement (625) 2. To MAKE on the servient estate all works necessary for the use and preservati on of the easement, BUT a. this must be at his own expense b. he must notify the servient owner c. he must select a convenient time and manner d. he must NOT * alter the easement, or * render it more burdensome 3. To ASK for a mandatory injunction to prevent impairment or obstruction in the exercise of the easement a. as when the owner of the dominant estate obstructs the right of way w/ a buil ding or fence (Rasolme v. Lazo 27 P 416) 4. To Totally RENOUNCE the easement if he desires an exemption from contribution of expenses (628) OBLIGATIONS of the DOMINANT Estate 1. He cannot ALTER the easement (627) 2. He CANNOT make it more burdensome a. He cannot use the easement except for movables originally contemplated (626) b. In right of way, he cannot increase the agreed width of the path nor deposit soil or materials outside the boundaries agreed upon (for these acts would be in creasing the burden) BUT he may allow others to use the path (this really does n ot increase the burden) except of the contrary has been stipulated * BUT in the case of Encarnacion vs. CA the SC ruled that the dominant estate ma y increase the width of the easement because it is the need of the dominant esta te that determines the width of the easement 3. If there are several dominant estates, each must CONTRIBUTE to the necessary repairs and expenses a. in proportion to the BENEFIT received by each estate b. and NOT to the value of each estate RIGHT of the SERVIENT Estate 1. To RETAIN ownership of the portion of his land affected by the easement a. even if indemnity for right of way is given b. unless the contrary has been stipulated 2. To make USE of the easement a. unless deprived by stipulation

b. provided that * the exercise of the easement is not adversely affected * he contributes to the expenses in proportion to the benefit received * unless there is a contrary stipulation 3. to change the location of a very inconvenient easement provided that an equal ly convenient substitute is made, without injury to the dominant estate (629(2)) OBLIGATIONS of the SERVIENT Estate 1. He cannot IMPAIR the use of the easement 2. He must CONTRIBUTE to the expenses in case he uses the easement, unless there is a contrary stipulation 3. In case of impairment, RESTORE conditions to the status quo at his expense a. In case of obstruction, as when he fences the original right of way and offer s an inconvenient substitute way, which is farther and requires turning at a sha rp angle, he may be restrained by injuction 4. To PAY for expenses incurred for the change of location or form of easement Rasolme v. Lazo (27 P 416) F: landowner built a fence thus Rasolme had to use a less convenient means of pa ssage H: Rasolme has a claim on the old right of way The trial court correctly sustained the plaintiff's claim to the old right of way. However there is nothing in the record to justify a finding that the defend ant was charged with the duty of maintaining or constructing a road across his l and. So far as the record disclosed his only obligation in regard to this right of way over his land is a negative one, that is to say, not to obstruct or hinde r the free passage over it of any person entitled to make use of it. The trial c ourt should have granted a permanent injunction prohibiting the defendant from o bstructing, by maintenance of fences, the plaintiff s passage over the ancient rig ht of way. Encarnacion v. CA (3/11/1991) F: Encarnacion wants to widen the path because his jeep could not pass through. Magsino turned down Encarnacion s offer saying Encarnacion could instead use a dri ed up river bed 80 m away H: Encarnacion has a right to widen the path While there is a dried up river bed less than 100 m away from the domina nt tenement, such access is grossly inadequate. Passage is very difficult, if no t, impossible. Generally a right of way may be demanded: 1. where there is absolutely no access to a public highway 2. when even if there is one, it is difficult and dangerous to use or is grossly insufficient 3. where a private property has no access to a public road, it has the right of easement over adjacent servient estates as a matter of law. Art 651 NCC provides that it is the needs of the dominant property which ultim ately determines the width of passage. Those needs may vary from time to time. A lso Art 649 provides that an easement which is of continuous and permanent natur e, the indemnity shall consist of the value of the land occupied and the amount of damage caused by the servient estate. Thus, petitioner is entitled to an addi tional easement of right of way of 25 meters long and by 1 meter wide over the s ervient estate after payment of proper indemnity. 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 es tates; 2. By nonuser for 10 years; with respect to a. discontinuous easements, this period shall be computed from the day on which

they ceased to be used; and, b. 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 possi ble, sufficient time for prescription has elapsed, in accordance with the provis ions of the preceding number; 4. By the expiration of the term or the fulfillment of the condition, if the eas ement 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. [1] MERGER The merger must be: 1. absolute no condition 2. complete not partial 3. permanent not temporary Thus, if the owner of the servient buys the whole portion affected, the merger i s complete and the easement is extinguished. But if the portion bought is not th e portion affected, the easement naturally remains.

Examples: Temporary Merger: A the dominant owner, sold a retro, his estate to B, the servi ent owner ~ The easement is NOT extinguished ~ It is only suspended because the merger is only temporary ~ It revives when the property is redeemed Conditional Merger: The dominant estate was donated to the servient estate but i t was stipulated that if the servient owner marries X, the property reverts to t he dominant owner ~ pending the resolutory condition the merger can be considered temporary ~ when the servient owner marries X, the easement is revived ~ if no marriage takes place as when X dies, the merger is permanent and the eas ement is thus extinguished [2] NON-USER for 10 Years 1. Refers to an easement that has once been used because one cannot discontinue using what has never been used 2. Non-user means voluntary abstention and not due to fortuitous event, because the basis of this cause is presumptive renunciation From what time to compute: 1. discontinuous easements - from the day on which they ceased to be used * when a right of way is no longer used 2. continuous easements, from the day on which an act contrary to the same took place * when an aqueduct is blocked * thus the erection of works incompatible with the exercise of the easement or t

otally obstructing the servitude agreed to by the owner of the dominant estate, amounts to a tacit renunciation and extinguishes the servitude [3] By IMPOSSIBILITY OF USE or BAD CONDITION of the tenement ~ The impossibility of using the easement, which arises from the condition of th e tenements, only suspends the servitude, until such lime when it can be used ag ain. ~ Example: The flooding of the servient tenement over which a right of way exist s, unless, extinguishment is caused by the necessary period for non-user. [4] BY EXPIRATION of the term or FULFILLMENT of the condition Example: An easement was agreed upon to last till the owner of the dominant esta te becomes a lawyer. When the condition is fulfilled the easement is extinguishe d [5] WAIVER or RENUNCIATION of the dominant estate As a general rule, the renunciation must be express, clear and specific (othe rwise it may be confused with none-user). However, it may be tacit for as long a s there are acts which clearly reveal it beyond doubt. [6] REDEMPTION agreed upon This is voluntary redemption, existing because of a stipulation. Stipulations ma y provide conditions under which the easement would be extinguished [7] OTHER causes: 1. Expropriation of the servient estate, 2. Annulment, recession or cancellation of the title that constituted the easeme nt; 3. Abandonment of the servient estate; 4. Resolution of the right of the grantor to create the easement (as when there is redemption of the property sold a retro because of the exercise of the right of conventional redemption); Art. 632. The form or manner of using the easement may prescribe as the easement itself, and in the same way. Art. 633. If the dominant estate belongs to several persons in common, the use o f the easement by any one of them prevents prescription with respect to the othe rs. LEGAL EASEMENTS Art 634: Easements imposed by law have for their object either public use or the interest of private persons. Legal easements - those imposed by law and which have for their object either 1. public use - governed by special laws (i.e. Law on Waters; Irrigation Law; Wa ter Code) 2. the interest of private persons - governed by the a. provisions of the Civil Code; b. agreement between the parties; c. general or local laws.

Different kinds of legal easements 1. easement relating to waters; a. natural drainage of lands (Article 637) b. natural drainage of buildings (Article 674) c. easement on riparian banks for navigation; floatage and salvage (Article 638) d. easement of a dam (Articles 639, 647) e. easement for drawing water or for watering animals (Articles 640-641) f. easement of aqueduct (Articles 643-646) g. easement for the construction of a stop lock or sluice gate. 2. right of way; 3. party wall; 4. light and view; 5. drainage; 6. intermediate distance, 7. easement against nuisance 8. lateral and subjacent support EASEMENT OF RIGHT OF WAY Art. 649. The owner, or any person who by virtue of a real right may cultivate o r use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper inde mnity. Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent p assage, the indemnity shall consist of the value of the land occupied and the am ount of the damage caused to the servient estate. In case the right of way is limited to the necessary passage for the cul tivation of the estate surrounded by others and for the gathering of its crops t hrough the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance. This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. Definition The easement or privilege by which one person or a particular class of person s is allowed to pass over another s land, usually through one particular path or l ine. The term right of way may either refer to the easement itself or the strip of land over which passage can be done. Requisites: 1. The property is surrounded by the estates of others, 2. There is no adequate outlet to a public highway. a. If outlet is through the water, like a river or sea, under Spanish law, the e asement cannot be demanded for there exists an adequate outlet b. it is believed that in the Philippines, a distinction must be made, depending on danger, convenience and cost.), 3. There must be payment of proper indemnity, (but later on, the amount may be r efunded when the easement ends, (Art 655)); 4. It must be established at a point least prejudicial to the servient estate (T his is generally but not necessarily the shortest distance); 5. The isolation must not be due to the proprietor's own acts (as when he has bu ilt enclosing walls (Art 649)) 6. Demandable only by the owner or one with a real right like a usufructuary (Th e lessee should ask the lessor to demand the easement from adjoining estates.) Note:

1. The onus or the burden of proof is upon the owner of the dominant estate to s how the specific averments in his complaint the existence of the requisites or p reconditions enumerated 2. In Rivera vs. IAC. 169 SCRA 307, it was held that mere convenience for the do minant estate is not a sufficient basis for the grant of easement of right of wa y. There must be real and not a fictitious or artificial necessity for it. 3. In Costabela vs. CA, 193 S 333, it was held that the gauge for the grant is a dequacy and not convenience 4. In Encarnacion vs. CA, 195 S 74, it was held that it is the needs of the domi nant property which ultimately determines the width of the passage. Sta. Maria v. CA (285 S 351_) F: there are several estates surrounding Fajardo s lot. They chose to establish an easement of right of way with Sta. Maria H: Easement can be established Requisites for an estate to be entitled to a compulsory servitude of right of wa y: 1. the dominant estate is surrounded by other immovables and has no adequate out let to a public highway; 2. there is payment of proper indemnity; 3. the isolation is not due to the acts of the proprietor of the dominant estate ; 4. the right way claimed is at the point less prejudicial to the servient estate ; and 5. insofar as consistent with this rule, where the distance from the dominant es tate to a public highway may be the shortest. Where there are several tenements surrounding the dominant estate, and the e state may be established on any of them, the one where the route is shortest and will cause the least damage will be where the easement is established. Bel Air v. Dionisio (3854; 6/30/1989) F: landowners of Bel Air are automatic member of their association; one member r efused to pay the association fees H: he must pay Purchasers of a registered land are bound by the annotation found at the back of the certificate of title covering the subject parcel of land. When the petitioner voluntarily bought the subject parcel of land, it wa s understood that he took the same free of all encumbrances except notations at the back of the certificate of title, among them, that he automatically becomes a member of the respondent association. One of the obligations of a member of th e respondent association is to pay certain amount for the operation and activiti es of the association which is being collected by the Board of Governors. The du es collected are intended for garbage collection, salary of security guards, cle aning and maintenance of streets and streetlights and establishments of parks. T he amount to be paid by each lot owner is computed o the basis of the area per s q m of the lot owned by every member. Costabella v. CA (198 S 333) F: Costabella closed passageway when it constructed hotel. Pvt. Resp. claimed ri ght over it saying the ancient road right of way has been existing since WWII H: discontinuous easement cannot be acquired through prescription Easement of right of way is discontinuous and as such cannot be acquired by prescription. The convenience of the dominant estate has never been the gauge for the gran t of compulsory right of way. To be sure, the true standard for the grant of the legal right is adequacy. Hence, where there is already an existing adequate out let from the dominant estate to the public highway, even if the said outlet, for one reason or another be inconvenient, the need to put up another servitude is entirely unjustified.

Ortigas v. FEATI (94 S 533) F: Contracts stipulate only residential bldg can be constructed, but municipal o rdinance was subsequently issued converting said area into commercial H: area is commercial The subject restrictions were subordinate to the Municipal Resolution. W hile non-impairment of contracts is no constitutionally guaranteed, the rule is not absolute since it has to be reconciled with the legitimate exercise of polic e power. The resolution was passed to safeguard or promote the health, safety, p eace, good order and general welfare of the people in the locality.

NUISANCE Why is nuisance a modification of ownership? Ans: Because if your property becomes a nuisance, you can be deprived of its enjoyment and even be deprived of its ownership. So, if your house is about to c ollapse and would cause injury to others, then you can be compelled to demolish your house NUISANCE (Art 694): A nuisance is any act, omission, establishment, condition of property or anyt hing else which 1. Injures or endangers the health or safety of the others, or a. Example: house in danger of falling; explosive factory; 2. Annoys or offends the senses; or a. Example: too much noise or horn blowing; a chimney which renders a house unin habitable due to excessive smoke 3. Shocks, defies or disregards decency or morality, or a. Note: The standard of morality changes. So what was immoral 20 years ago may not be immoral today. The third instance then depends on time, place and standar d of morality of countries and people. b. Example: public exhibition of a naked person, strip-teasing; public display o f nude posters 4. Obstructs or interferes with the free passage of any public highway or street s, or any body of water, or a. Example: houses erected on public streets. 5. Hinders or impairs the use of property. a. Example: illegal constructions on another's land. What are the different kinds of nuisance? Ans: Public or private nuisance (Article 695) 1. Public nuisance = the doing of or the failure to do something that injuriousl y affects safety, health or morals of the public, or works some substantial anno yance, inconvenience or injury to the public. a. It affects a community or neighborhood or any considerable number of persons b. although the extent of the annoyance, danger or damage upon individuals may b e unequal 2. Private nuisance = One which violates only private rights and produces damage to but one or few persons and cannot be said to be public. 3. Nuisance per se = a nuisance at all times and under all circumstances or cond itions. 4. Nuisance per accidens = a nuisance only under certain circumstances or condit ion. 5. Attractive nuisance = This is any contrivance which is very attractive to chi

ldren but very dangerous to them. ~ An attractive nuisance is not illegal. It may be legal or legitimate thing but because of its nature it can easily injure children. That is why it is called a n attractive nuisance. (Example: firearm) ~ If one is an owner of an attractive nuisance, he is required to exercise the h ighest degree of diligence to prevent it from being played by children HIDALGO ENTERPRISES vs. BALANDAN (91 Phil 488) F: 8-yr old boy drowned in a tank maintained by an ice-plant factory; parents of the boy filed an action for damages against the factory alleging that the tank full of water was an attractive nuisance and yet the factory did not provide any precaution. H: tank was not an attractive nuisance Water in any form is not an attractive nuisance. Nature in itself created st reams, lakes, and pools which attract children. Lurking in their waters is alway s the danger of drowning. Against this danger, children are to know the danger. The tanks filled with water is not an attractive nuisance. Any imitation of nature, like a swimming pool, is not an attractive nuisance. So, if the owner of a private property creates an artificial pool on his own property, merely dupli cating the work of nature without adding any new danger, he is not liable. The factory owner need not exercise the highest degree of diligence since it is not an attractive nuisance. Who can be liable for damages for the nuisance caused? The owner or possessor who originally caused the nuisance and the subsequent owner or possessor of the property is jointly and severally liable. Article 696: Every successive owner or possessor of property who fails or refuse s to abate a nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it. Who are liable? In general: 1. One who creates, 2. All who participate; 3. One who adopts; 4. One who continues a previously existing nuisance; 5. One who refuses to abate nuisance. If a property which has already caused nuisance is removed, is it a defense? Ans: (Art 697) No, the abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence May an action for abatement of a nuisance prescribe? Ans: No, an action for abatement of a nuisance is one which is imprescriptibl e. A nuisance can be abated anytime. Art 698: Lapse of time cannot legalize any nuisance whether public or private. Art 1143, 2nd par: an action to abate a public or private nuisance is not exting uished by prescription Art. 699. The remedies against a public nuisance are: 1. A prosecution under the Penal Code or any local ordinance: or 2. A civil action; or 3. Abatement, without judicial proceedings. Art. 700. The district health officer shall take care that one or all of the rem edies against a public nuisance are availed of.

Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance. What are the remedies against a nuisance? Ans: It depends on whether it is a public or private nuisance. 1. If it is a PUBLIC NUISANCE, there are 3 possible remedies: a. CRIMINAL PROSECUTION under the Penal Code or any local ordinance; i. Note: This remedy is instituted by public officers (ordinarily the mayor) b. CIVIL ACTION; c. EXTRA JUDICIAL ABATEMENT (abatement without judicial proceedings) (Article 69 9); i. Note: The remedies of civil action and extra-judicial abatement above may be brought by any private individual if the nuisance is specially injurious to hims elf 2. If it is a PRIVATE NUISANCE, there are 2 possible remedies: a. a civil action, or b. abatement, without judicial proceedings (Article 705) Art. 703. A private person may file an action on account of a public nuisance, i f it is specially injurious to himself. Art. 704. Any private person may abate a public nuisance which is specially inju rious to him by removing, or if necessary, by destroying the thing which constit utes the same, without committing a breach of the peace, or doing unnecessary in jury. But it is necessary: 1. That demand be first made upon the owner or possessor of the property to abat e the nuisance; 2. That such demand has been rejected; 3. That the abatement be approved by the district health officer and executed wi th the assistance of the local police; and 4. That the value of the destruction does not exceed P3,000. What are the requisites for the abatement of nuisance, whether public or priva te, without judicial proceedings? (Art 703 and 704) Ans: The requisites are the following 1. there must be showing that the nuisance is specially injurious to the person seeking the abatement of nuisance (Article 703), 2. that demand be first made upon the owner or possessor of the property to abat e the nuisance; 3. that such demand has been rejected or ignored; 4. that the abatement must be approved by the City Engineer in Manila and other chartered cities, and in the provinces, by the Provincial Health Officer and exe cuted with the assistance of or attended by a member of the local police force; 5. that the abatement must be done in such a way that it does not breach public peace, or do unnecessary injury; and 6. that the value of the thing to be abated does not exceed P3,000 ~ Criminal prosecution is not mentioned. However, if a crime has been committed as defined in the Revised Penal Code, criminal prosecution can proceed. ~ If the nuisance to be abated is more than P3,000, it cannot be abated without judicial proceedings. It can be abated only through a criminal or civil action i n court as the case may be. Art. 705. The remedies against a private nuisance are: 1. Civil action; or 2. Abatement, without judicial proceedings.

Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without co mmitting a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatem ent of a public nuisance by a private person be followed. Art. 707. A private person or a public official extrajudicially abating a nuisan ce shall be liable for damages: 1. If he causes unnecessary injury; or 2. If an alleged nuisance is later declared by the courts to be not a real. When may a private person or a public officer extra judicially abating a nuisanc e liable for damages? Ans: Art 707 provides that a private person or public officer extra-judiciall y abating a nuisance is liable for damages in these instances: 1. If he causes unnecessary injury: or. 2. If an alleged nuisance is later declared by the courts to be not a real nuisa nce PP vs. de Guzman, et. al., 90 Phil. 132 F: lumber yard owners question the constitutionality of an ordinance which conve rted their area into a residential one compelling them to move their establishme nts H: ordinance is valid The passage of the ordinance was prompted by a desire to abate nuisances res ulting from the operation of lumber yards within the residential zones and this falls under legitimate exercise of police power of the municipal council. The re stricted zone is admittedly in the center of the poblacion of Lucena and it is j ust to assume that the lumberyards may exist therein without necessarily coming very near residential areas. Espiritu vs. Municipal Council, 102 Phil 867 F: Bec. the market was destroyed by war, market vendors built makeshifts stalls in the town plaza. Market was subsequently restored, but these vendors refused t o leave the plaza H: vendors are considered nuisance The town plaza cannot be used for the construction of market stalls, special ly of residences and that such structures constitutes a nuisance subject to abat ement according to law. Town plazas are property of public dominion to be devote d for public use and to be made available to the public in general. While in cas es of war or during an emergency, town plaza may be occupied temporarily by priv ate individuals; as in this case when the emergency has ceased, the temporary oc cupation or use must be kept in open to the public and free from encumbrance as in illegal private construction.

Iloilo Cold Storage vs. Mun. Council, 24 Phil. 471 F: smoke emitted by the ice plant is injurious to health, thus the municipal cou ncil declared the ice plant a nuisance H: Authority to decide when a nuisance exists is a judicial function. A nuisance which affects the immediate safety of persons or property, or which constitutes an obstruction to the streets and highways under circumstance s presenting an emergency, may be summarily abated under the undefined law of ne cessity. But in any case, the declaration of the municipal council that the thin g or act is nuisance is not conclusive. The owner of the alleged nuisance has th e right to test the validity of the action of the council in a court of law. If no compelling necessity requires the summary abatement of a nuisance, the

municipal authorities, under their power to declare and abate nuisances, do not have the right to compel the abatement of a particular thing ordered as a nuisa nce without reasonable notice to the person alleged to be maintaining or doing t he same of the time and place of hearing before a tribunal authorized to decide whether such a thing or act does in law constitute a nuisance. A city cannot burden the property of a citizen with the cost of abating a nu isance per accidens without a judicial hearing and judgment as to its existence. Injunction lies to restrain a city from proceeding with the abatement of a nuis ance per accidens before it has been judicially declared to be such. Canlas vs. de Aquino, 2 SCRA 814 F: Tayag wants to construct a rice mill in front of Canlas Clinic. Canlas filed a preliminary injunction to enjoin the construction of the rice mill. Tayag main tains that he can fully compensate Canlas for any damages, thus, upon the filing of P2T bond, the court cancelled the writ of injunction. H: closing of the hospital cannot be fully compensated by Tayag It is obvious that the operation of a hospital is a matter that, not only co ncerns its owners or operators, but also, if not more particularly, affects the health and welfare of the community, and that the damage sustained by the latter , in consequence, either of the obstruction to the proper operation of said hosp ital or of its closing, can not possibly be compensated in full. The main action filed by the petitioners is for the purpose of enjoining and prohibiting Tayag from constructing a rice mill, so that, upon the construction thereof, said acti on would become futile. San Rafael vs. City of Manila, 46 SCRA 40 F: civic groups filed an injunction to enjoin municipal from bidding for an inci nerator-thermal plant (for garbage disposal) H: axn is premature since it is not year clear that pollution will result The injunction will not prosper. It is entirely pointless to go into an acad emic discussion of the relative merits of the composting and the incineration me thods of garbage and refuse disposal for purposes of deciding whether or not at this stage, prohibition should issue to stop the bidding called for by the respo ndents. The instant petition for that purpose is premature. These will not substitut e its judgment for the city officials even before the bidding is begun and on a purely theoretical basis. Rule is that the bids submitted should not be opened, or if opened should not be accepted, because not one of the plants therein offer ed to be established would serve the purpose envisaged and because, if so establ ished, it would so pollute the environment as to constitute a nuisance. If and w hen such result becomes a reality, or at least an imminent threat, that will be the time the petitioners may come to court. Velasco vs. Manila Electric, 40 SCRA 342 F: a substation was constructed beside Velasco s house. He contended that it is a nuisance because of the noise coming from it and asked damages H: sound constitutes an actionable nuisance The sound in this case constitutes an actionable nuisance. The general rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others. It becomes actionable when the noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable extent. What those limits are cannot be fixed by any definite me asure of quantity or quality. They depend upon the circumstances of the particul ar case. The test is wether rights of property, or health or of comfort are so injuri ously affected by the noise in question that the sufferer is subjected to a loss which goes beyond the reasonable limiits imposed upon him by the condition of l iving, of holding property, in a particular locality in fact devoted to uses whi ch involve the emission of noise although ordinary care is taken to confine it w ithin reasonable bounds.

Ramcar vs Millar, 6 SCRA 517 F: ordinance allows the construction of garage within the area but Ramcar also mai ntains an auto repair and body building shop. Residents around the area asked th at such be declared nuisance. CA held that the establishment was a nuisance per se H: the shop was not a nuisance per se It is only on account of its location that it is a public nuisance. The oper ation of a car shop violated the city ordinance. A car body-building shop is not within the purview of "garage", which designates a shop for storing, repairing, and servicing motor vehicles, the "garage" being merely a modern substitute for the ancient livery stable. The term "repair" presupposes decay, dilapidation, i njury, or partial destruction of the repaired element; that is, bringing back br oken or damged parts of a structural whole to their original condition. It canno t apply to the building or remodeling of bodies or structures. To abate it howev er, it is not necessary, as the appealed decision decrees, to remove all buildin gs and structures built in the place where it is presently located, as these, or parts thereof, may be utilized for pursuits that are not forbidden by law or or dinance. DIFFERENT MODES OF ACQUIRING OWNERSHIP: Art. 712. Ownership is acquired by: 1. occupation and 2. intellectual creation. Ownership and other real rights over property are acquired and transmitt ed: 1. by law 2. by donation 3. by estate and intestate succession, and 4. in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. Modes of acquiring ownership: 1. Original modes (ownership is acquiring for the first time ), a. Occupation (hunting, fishing, hidden treasure); b. Intellectual Creation (books, copy rights, patents, letters ): 2. Derivative mode (there is merely a transfer of ownership; somebody else was t he owner before): a. Succession; b. Donation, c. Prescription; (Art 1106 ) d. Law (Arts. 158. 445, 461, 465, 466, 681,1434,1456 - NCC ) e. tradition (meaning: legal delivery actual/ constructive) as a consequence of certain contracts (i.e.: sale, barter, assignment, simple loan or mutuum) Mode The process of acquiring or transferring ownership Title That which is not ordinarily sufficient to convey ownership, but which gives a juridical justification for a mode, that is, it provides the cause for the acq uisition of ownership. Example: If A sells to B a specific car for a specific amount, the sale is the title, by virtue of such title, A should now deliver the property to B. It is the deliv ery or tradition that makes B the owner, it is the tradition that is the mode.

OCCUPATION Art. 713. Things appropriable by nature which are without an owner, such as anim als that are the object of hunting and fishing, hidden treasure and abandoned mo vables, are acquired by occupation. Occupation The acquisition of ownership by SEIZING corporeal things that have no owner, made with the intention of acquiring them, and accomplished according to legal r ules. doesrefer in take by all kinds canitselfplace proper confers ownership Possessionwhen only withrise to towhether without an owner Occupationtoitself giveofrespectownership with or without an owner not property property Requisites for occupation: 1. There must be a seizure or apprehension (the material holding is not required as long as there is right of disposition) 2. The property seized must be corporeal (personal) properly, 3. The property seized must be susceptible of appropriation (either unowned or a bandoned property), 4. There must be intent to appropriate; 5. The requisites or conditions of the law must be complied with (i.e. good fait h; proper title; legal period of time) Art 714: The ownership of a piece of land cannot be acquired by occupation Reasons: 1. because a land that is not shown to belong to anyone is presumed to be a publ ic land; 2. occupation as a mode of acquiring ownership refers to movable which are eithe r considered as res nullius or res derelicta Finding of lost movable: Art. 719. Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is unknown, the finder shall immediately depos it it with the mayor of the city or municipality where the finding has taken pla ce. The finding shall be publicly announced by the mayor for 2 consecutive w eeks in the way he deems best. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction 8 day s after the publication. 6 months from the publication having elapsed without the owner having ap peared, the thing found, or its value, shall be awarded to the finder. The finde r and the owner shall be obliged, as the case may be, to reimburse the expenses. Art. 720. If the owner should appear in time, he shall be obliged to pay, as a r eward to the finder, 1/10 of the sum or of the price of the thing found. INTELLECTUAL CREATION: Intellectual creation The product of mental labor embodied in writing or some other material form. Art 721. By intellectual creation, the following persons acquire ownership: 1. The author with regard to his literary, dramatic, historical, legal, philosop hical, scientific, or other work; 2. The composer, as to his musical composition; 3. The painter, sculptor, or other artist, with respect to the product of his ar t; 4. The scientist or technologist or any other person with regard to his discover

y or invention. Art. 722. 1. The author and the composer, shall have the ownership of their creations even before the publication of the same. Once their works are published, their right s are governed by the Copyright laws. 2. The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention ev en before it is patented. ~ Ownership before publication - exclusive; ~ Ownership after publication = no more exclusive right except when work is copy righted. ~ Note: Mere circulation among close friends and associates however, is not cons idered publication Art 723: Letters and other communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or dissemin ated without the consent of the writer or his heirs. However, the court may auth orize their publication or dissemination if the public good or the interest of j ustice so requires. Rules 1. The physical or material object is owned by the person to whom it has been se nt; 2. The thoughts, ideas and form of expression contained in the letter belong to the sender or author of the letter 3. The recipient cannot publish or disseminate the letter, unless (a) the writer or the writer s heirs consent; (b) the public good or the interest of justice so requires as when the: (1) the publication is necessary for the vindication of the character of the per son to whom the letter is addressed, (2) letter is produced as evidence in court, in the course of the administration of justice, except when the letter constitutes a privileged communication and c annot be admitted in evidence without the consent of the writer. Copyright: Nature of Copyright: 1. It is the exclusive right secured by law to an author or his assigns to multi ply and dispose of copies of an intellectual or artistic creation 2. It is an incorporeal right to print and publish, and exist independent of the corporeal property out of which it arises. Objectives of copyright: 1. to encourage individuals to intellectual labor by assuring them of just rewar ds. 2. to secure the society of the larger benefit of their products What may be copyrighted? Ans: Sec 2 PD 49 1. Literary and Artistic Works (Original Intellectual Creations) a. They are protected by the mere fact of their creation, irrespective of: * the mode or form of expression * purpose, content or quality b. Ownership exclusively belongs to the author of the original intellectual crea tion 2. Derivative Works * Alterations of original works

a. Conditions for the Copyrighting of Derivative Works * If a copyright is existing for the original work, the new copyright must not a lter any subsisting rights under the original copyright * The new work shall not be construed to imply any right to such use of the orig inal works * It does not extend the life of the original copyright period of the original c opyright must expire Right of a copyright owner: 1. to print, reprint, publish, copy, distribute, multiply, sell and make photogr aphic illustration of the copyrighted work; 2. to make translations or other versions or extracts or arrangements or adaptat ions thereof. 3. to exhibit, perform, represent produce or reproduce the copyright work, 4. to make any other use or disposition of the copyrighted work. Extent of the protection: ~ Concepts, theories, speculations, abstracts of ideas however original they may be are not covered by the protection, because there is no monopoly of theories and speculations of an author. o He may transfer these theories of ideas into intellectual products as books, l etters or any form of writing or illustration. o These are exclusively his. ~ But once caused to be published, his exclusive right over the same ceases, exc ept when copyrighted. o But the protection extends only in so far as the form, language or style of th e production are concerned and not theories or the ideas themselves. o So that when one copies the form, style and language, there is infringement. o It should be a copy of the original but similarity alone is not sufficient, wh at is important though is the copy is so near to the original as to give to ever y person seeing it the idea created by the original. ~ Copyright does not extend to the general concept or format of a dating game sh ow. JOAQUIN vs. DRILON G R. No 108946, January 28, 1999] F: Joaguin holds a Certificate of Copyright of a TV dating game show, Rhoda and M e. RPN copied the format and style thereof in its show, "It's a Date. H: the format of a show is not copyrightable The format or mechanics of a television show is not included in the list of protected works in Sec 2 of P.D. No. 49. For this reason, the protection afforde d by the law cannot be extended to cover them. Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not simply a pre-exist ing right regulated by the statute. Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. P.D No. 49, S2, in enumerating what are subject to copyright, refers to fini shed works and not to concepts. The copyright does not extend to an idea, proced ure, process, and system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or emb odied in such work Thus, the new INTELLECTUAL PROPFRTY CODE OF THE PHlLlPPINES provides: SECTIO N 175. Unprotected Subject Matter - Notwithstanding the provisions of Section 17 2 and 173, no protection shall extend, under this law, to any idea, procedure, s ystem, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news o f the days and other miscellaneous facts having the character of mere items of p ress information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof.

Cinematographic works and works produced by a process analogous to cinematog raphy or any process for making audio-visual recordings The copyright does not extend to the general concept or format of its dating game show. Accordingly by the very nature of the subject of petitioner BJPI s cop yright, the investigating prosecutor should have the opportunity to compare the videotapes of the two shows. Mere description by words of the general format of the two dating game shows in insufficient the presentation of the master videotape in evidence was indisp ensable to the determination of the existence of probable cause. As aptly observ ed by respondent Secretary of Justice: A television show includes more than mere words to describe it because it involves a whole spectrum of visuals and effect s, video and audio, such that no similarity or dissimilarity may be found by mer ely describing the general copyright/ format of both dating game shows. Remedies in case of infringement: 1. damages; 2. injunction; Effect of expiration: On the final expiration of the copyright term, the whole work falls into the public domain and becomes free and unrestricted. TRADEMARKS 1. Mark" - any visible sign capable of distinguishing the goods (trademark) or se rvices (service mark) of an enterprise and shall include a stamped or marked con tainer of goods; a. including holograms, although they are not so visible but still the can be se en 2. "Collective mark" - any visible sign designated as such in the application fo r registration and capable of distinguishing the origin or any other common char acteristic, including the quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective m ark; a. 1 company w/ many products 3. "Trade name" - the name or designation identifying or distinguishing an enter prise; 4. Trademark name or symbol of goods made or manufactured 5. Trade name name of symbol of a store, business or occupation 6. Service mark name or symbol of business rendered SIMILARITY TEST: To determine whether a trademark has been infringed, the mark as a whole must be considered and not as dissected. If the buyer is deceived, it is attributabl e to the marks as a totality, not usually to any part of it [Del Monte Corporati on vs. Court of Appeals,181 SCRA410] DISSIMILARITY TEST [or the so-called "visible difference test"]: In the case of Asia Brewery vs. CA (224 SCRA 437), the SC applied the "dissim ilarity test or "visible difference test" in determining whether or not there ex ists unfair competition. Asia Brewery vs. CA (224 SCRA 437) F: San Miguel filed an infringement case against Beer na Bear H: no infringement While the Supreme Court did not abandon the "similarity test", it neverthele ss, qualified the same when it applied the "visible difference test" especially so when the dissimilarities abound. Besides the dissimilarity in their names, the following other dissimilaritie

s in the trade dress or appearance of the competing brands abound: 1. The SAN MIGUEL PALE PILSEN bottle has a slender tapered neck. The BEER PALE P ILSEN bottle has a fat, bulging neck. 2. The words "pale pilscn on SMC's label are printed in bold and laced letters a long a diagonal band, whereas the words "pale pilsen" on ABI s bottle are half the size and printed in slender block letters on a straight horizontal band; 3. The names of the manufacturers arc prominently printed on their respective bo ttles. SAN MIGUEL PALE PILSEN is "Bottled by San Miguel Brewery Philippines," wh ereas BEER PALE PILSEN is "Especially brewed and bottled by Asia Brewery Incorpo ration, Philippines; 4. On the back of ABI s bottle is printed in big, bold letters, under a row of flo wer buds and leaves, its copyrighted slogan: BEER NA BEER! Whereas SMC's bottle ca rries no slogan; 5. the back of the SAN MIGUEL PALE PILSEN bottle carries the SMC logo, whereas t he BEER PALE PILSEN bottle has no logo; 6. The SAN MIGUEL PALE PILSEN bottle cap is stamped with a coat of arms and the words "San Miguel Brewery Philippines" encircling the same. The BEER PALE PILSEN bottle cap is stamped with the name "BEER" in the center, surrounded with the w ords "Asia Brewery Incorporated Philippines; 7. Finally, there is a substantial price difference between BEER PALE PILSEN (cu rrently at P4.25 per bottle) and SAN MIGUEL PALE PILSEN (currently at P7.00 per bottle). One who pays only P4.25 for a bottle of beer cannot expect to receive S an Miguel Pale Pilsen from the storekeeper or bartender." The Supreme Court deviating from the Del Monte ruling, further said : The rul ing may not apply to all kinds of products. In resolving cases of infringement a nd unfair competition, the courts should take into consideration several factors which would affect its conclusion, to wit: the age, training and education of t he usual purchaser, the nature and cost of the article, whether the article is b ought for immediate consumption and also the conditions under which it is usuall y purchased. The Del Monte case involved catsup, a common household item which is bought off the store shelves by housewives and house help who, if they are illiterate a nd cannot identify the product by name or brand, would very likely identify the product by mere recollection of its appearance. Since the competitor, Sunshine S auce Mfg. Industries, not only used recycled Del Monte bottles for its catsup (d espite the warning embossed on the bottles Del Monte Corporation. Not to be refil led ) but also used labels which were a 'colorable imitation of Del Monte's label, we held that there was infringement of Del Monte s trademark and unfair competitio n by Sunshine. Our ruling in Del Monte would not apply to beer which is not usually picked up from the store shelf but ordered by brand by the beer drinker himself from th e storekeeper or waiter in a pub or restaurant." Doctrine of Secondary Meaning A word or phrase originally incapable of exclusive appropriation may be registered by a manufacturer if it has been used so long and so exclusively by o ne producer with reference to his article, that in that trade and to that branch of the purchasing public, the word or phrase has come to mean that the article was his product. Unfair Competition ~ Passing off one s goods as those made by another contrary to good faith ~ TEST: imitation or similarity such that average customer may be deceived Infringement of Trademark = use of a mark without the consent Ang v. Teodoro (48226; 12/14/1942) F: Teodoro used Ang Tibay as trademark and tradename for his slippers, shoes. Ang used Ang Tibay for pants. Ang contends that Teodoro cannot register Ang Tibay since

it is a descriptive phrase H: doctrine of secondary meaning; Teodoro has exclusive use of words Ang Tibay An inquiry into the etymology and meaning of Ang Tibay shows that the phra se is never used adjectively to define or describe an object. It is therefore, n ot a descriptive term within the meaning of the Trade-mark Law but rather a fanc iful or coined phrase which may properly and legally be appropriated as a trademark or trade-name. The function of a trademark is to point distinctively either by its own meaning or by association, to the origin or ownership of the wares to which it i s applied. The test employed by the courts to determine whether non-competing goods are or are not of the same class is confusion as to the origin of the goods of the second user. Although two non-competing articles may be classified under two different classes by the Patent Office because they are deemed not to possess t he same descriptive properties, they would nevertheless be held by the courts to belong to the same class if the simultaneous use on them of identical or closel y similar trademarks would be likely to cause confusion as to the origin, or per sonal source, of the second user s goods. They would be considered as not falling under the same class only if they are so dissimilar or so foreign to each other as to make it unlikely that the purchaser would think the first user made the se cond user s goods. Hang and Dee v. Wellington Dept Store (L-4531; F: Chua registered Wellington as his company objected as he is using the same word for his y him H: Wellington cannot be registered No confusion or deception can possible ity because the latter is a dept store while 1/10/1953) s name Wellington Dept Store, Inc. Hang shirts, pants, etc. manufacture b result or arise from such similar the former does not purport to be so.

Mere geographical name are ordinarily regarded as common property, and i t is a general rule that the same cannot be appropriated as the subject of an ex clusive trademark or trade name. Even if Wellington were a surname, it cannot be validly registered as a trade name, it not being the name of the plaintiffs. As the term cannot be appropriated as a trademark or a trade name, no ac tion for violation thereof can be maintained as none is grated by the statute in such cases. The right to damages and for an injunction for infringement of a tr ademark or a trade name is granted only to those entitled to the exclusive use o f a registered trademark or trade name. Lim Hoa vs. Director of Patents (100 Phil. 214) in relation to Etepha vs Directo r, 16 SCRA 495 The court differentiated food seasoning product, a kitchen article of daily consumption, from commodities or articles of relatively great value, such as rad io and television sets, air-conditioning units, machinery, etc., where the prosp ective buyer generally the head of a family or a businessman, before making the purchase, reads the pamphlets and all literature available, describing the artic le he is planning to buy and perhaps even makes comparisons with similar article s in the market. He is not likely to be deceived by similarity in the trademarks because he makes a more or less study of the same and may even consult his frie nds about the relative merit and performance of the article or machinery, as com pared to others also for sale. DONATIONS Article 725: Donation is an act of liberality whereby a person disposes gratuit ously of a thing or right in favor of another who accepts it. Essential requisites: 1. the reduction in the patrimony of the donor; 2. the increase in the patrimony of the donee;

3. the intent to do an act of liberality. ~ When a person gets a life insurance and names a third person as his beneficiar y, and the insurance becomes payable by the death of the insured, there is a don ation in favor of the beneficiary not in the sum received by him from the insure r, but in the total amount of premiums that have been paid by the insured. This is the only amount that leaves the patrimony. ~ If the amount of premiums, however, exceeds the insurance, there is donation o nly to the extent of the insurance. This is the only amount that is added to the patrimony of the donee. Art. 726. When a person gives to another a thing or right 1. on account of the latter's merits or 2. of the services rendered by him to the donor, 3. provided they do not constitute a demandable debt, or 4. when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation. Classification of donations: 1. simple - the cause is pure liberality (no strings attached); 2. remuneratory (to reward past services which do not constitute demandable debt ) 3. Conditional or Modal when the donation imposes upon the donee an obligaton in favor of the donor himself or a third person or even the public. Example #2: ~ a donation to one who saved the donor's life ~ The phrase "they do not constitute a demandable debt" (Article 726) means that the service which was rendered did not produce an obligation demandable against the donor, or if it had, such obligation has been renounced in favor of the don or. ~ A agreed to review B for the bar examinations for a fee of P10,000. Later, B p asses the bar examination, and as a gratitude gives A a parcel of land worth P20 ,000. The remuneratory donation here is only with respect to the excess of P10,0 00 because, the services of A constitute a demandable debt, unless, A in the mea ntime renounces his fees and in such case, there is donation to the extent of P2 0,000. Example #3: A piece of land is donated to the city in order that it may be converted into a park or public market. Form to be followed: ~ in simple / remuneratory donations - form of donations ~ onerous donations contracts Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed. ~ It is supposed to be simple (no string attached), why is there a need to have a condition, much less, impossible? ~ If the condition is not void, then the donation is not really simple, for it h as a burden imposed upon the donee. ~ What is voided here is the impossible condition and not the donation itself. Art. 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules es tablished in the Title on Succession.

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, un less the donor provides otherwise. The time Mortis effect Donations Inter Vivos As to: it takesCause Formalities After the lifetime of donor Duringthe death of the the donor Reduced the the canimpaired wills the donor is in and the donee, devise Preferredlegitime isanyprovideddonations (if it alive When theahead ofarevoked Yes, at anytimeafordonation inter vivos sinceordinarytime a or No, followfor groundsdispose is completely transferred tois legacy oralthough Whether it can bedonations ofofbycausa (priorityis reallysimple)notarial) Mustexceptoverofformalitiesmortisthe or codicils (holographicpriority in right)c right donee disposition while donation reason law NO, the right of disposition is NOT transferred ertain reservations such usufruct may be made to the donee while the donor is Acceptance by the donee mustonlydonedone after the donor ofdeathdonorany prior acc alive can be be during the lifetime s the and eptance is void Effect of the fulfillment of the suspensive condition beyond the lifetime of the donor. Art. 730. The fixing of an event or the imposition of a suspensive condition, wh ich 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 inte ntion appears. Example: A donates a piece of land to B on the condition that X, A s son becomes a lawye r. The fulfillment of the condition even after the death of the donor does not a ffect the nature of the donation as inter vivos. The fulfillment retroacts to th e time of the donation. Article 731: When a person donates something, subject to the resolutory conditio n of the donor s survival, there is donation inter-vivos. Note: Fulfillment of a resolutory condition, its effect. Example: A was about to undergo a delicate operation. He donated to B a parcel o f land subject to the condition that if A survives the operation, B s ownership ov er the land would terminate, and the same would revert to A. But if A dies, ther e is donation inter vivos not mortis causa. WHEN DONATION IS PERFECTED: Article 734: The donation is perfected from the moment the donor knows of the ac ceptance by the donee: Article 746: Acceptance must be made during the lifetime of the donor and the do nee. WHO MAY DONATE: Art 735. All persons who may contract and dispose of their property may make a d onation. Art 737: The donor's capacity shall be determined as of the time of the making o f the donation. ~ The phrase "as of the time of the making of the donation should really mean "as of the time of the perfection of the donation. So that, a physically incapacitat ed person (i.e. unemancipated minors or insane) may still donate provided that a t the time of his knowledge of the acceptance by the donee, the incapacity is no t present. Although, it is submitted that the donation is voidable following the law on contracts which are suppletory to simple donation as in vitiated consent . ~ The capacity of the donee is determined at the time of the perfection of the d

onation (at the time he makes known to the donor his acceptance of the donation) . Capacity of the Husband or the Wife: Husbands or wives may donate their own capital or paraphernal properties with out the consent of the other. But with respect to conjugal or community property , they cannot make donations without the consent of the other, except, moderate donations for charity or on occasion of family rejoicing or family distress (Art 98 and 125; 113-115 FC) May husbands and wives donate to each other? Ans: Art 87 of the Family Code: Every donation or grant of gratuitous advanta ge, direct or indirect, between the spouses during the marriage shall be void, e xcept moderate gifts which the spouses may give each other on the occasion of an y family rejoicing. The prohibition shall also apply to person living together a s husband and wife without a valid marriage. ~ Reason: To protect the creditors and the weaker spouse from the dominance of t he other. ~ What is moderate is relative. This may be determined based on the financial st atus of the family. Capacity of a minor: For purposes of marriage, a person may contract marriage at the age of 18 yea rs. May he enter into a marriage settlement wherein he may dispose of his future pro perty in favor of his prospective spouse without the intervention of the parents ? Ans: Art 78 (in relation to Art. 234 and 236) of the Family Code which requir es that the parents are required to be made parties to the marriage settlements was impliedly repealed by RA 6809 wherein the marriage settlements may now be en tered by the child personally even without the intervention of the parents. Read also: Donations by reason of marriage - Arts. 82, 87, Family Code What may be donated: Art 750: The donation may comprehend all 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 all of relatives who at the time of the accepta nce of the donation, are by law entitled to be supported by the donor. Without s uch reservation, the donation shall be reduced on petition of any person affecte d. ~ The donation may comprehend all present property, meaning that which the donor can dispose of at the time of the donation but in all instances, the donor cann ot give more than what he can give by will (meaning, a person cannot give more t han what the giver can give by virtue of a will). Otherwise, the donation is con sidered inofficious. ~ The sufficiency can be determined by the court in accordance with the prudence and the exercise of reasonable discretion. ~ Excessive or inofficious donation is not void but merely reducible. ~ Donations cannot comprehend future property (Article 751), because he cannot g ive what he does not have, except in case of contractual succession and donation s by reason of marriage (Art 84, FC) 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.

FORMALITIES OF A DONATION: 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 v alue 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 life time of the donor. If the acceptance is made in a separate instrument, the donor shall be n otified thereof in an authentic form, and this step shall be noted in both instr uments. With respect to IMMOVABLE property (Art 749 ) 1. the donation must be in a PUBLIC DOCUMENT; 2. the acceptance must also be in a PUBLIC DOCUMENT 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 t he document representing the right donated. If the value of the personal property donated exceeds P5,000, the donati on and the acceptance shall be made in writing, otherwise, the donation shall be void. With respect to MOVABLE property: 1. if value of the thing is more than P5,000; a. must always be in writing, so with the acceptance 2. if the value of the thing is P5,000 or less: a. may be oral but simultaneous delivery of the thing and the document represent ing the right donated is required; b. may be in writing; 3. in both instances (where the donation is either oral or written), the accepta nce may be made orally (express or implied ) or in writing Art. 739. The following donations shall be void: 1. Those made between persons who were guilty of adultery or concubinage at the time of the donation; 2. Those made between persons found guilty of the same criminal offense, in cons ideration thereof; 3. Those made to a public officer or his wife, descendants and ascendants, by re ason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor a nd donee may be proved by preponderance of evidence in the same action. (impt) SPECIAL DISQUALIFICATION: (Art 739 and 740) 1. Those made between persons who are guilty of adultery or concubinage at the t ime of the donation a. this refers to donations between paramours: b. there is no necessity of proving the guilt in a criminal proceedings, it is e nough that the guilt may be proven by a preponderance of evidence in a civil act ion for the declaration of nullity of the donation c. the commission of the adultery or concubinage must be at the time of the dona tion and not after; d. when the purpose of the donation is to initiate, continue, resume or compensa te the illicit relations between the paramours, the donation is void. But if the intention is to indemnify the damage caused to the other at the time of separat ion, the donation is valid. 2. Those made between persons found guilty of the same offense, in consideration thereof; a. If a person agrees to kill another in consideration of a donation to be made

in his favor, the donation is void. Here, since the consideration is illegal, th e donation must necessarily be void; there must be a conviction; 3. Those made to a public officer or his spouse, descendants or ascendants by re ason of his office a. The purpose for the rule is to prevent bribery; the donation is void by reaso n of public policy

Article 740: Incapacity to succeed by will shall be applicable to donations inte r-vivos. (relative incapacity) The following persons are disqualified: 1. the priest who heard the confession of the donor during his last illness, or the minister of the gospel who extended spiritual aid to him during the same per iod; 2. the relatives of such priest or minister of the gospel within the 4th civil d egree, the church, the order, chapter, community, organization, or institution t o which such priest or minister belongs; 3. a guardian with respect to donations made by a ward in his favor before the f inal accounts of the guardianship have been approved, even if the donor should d ie after the approval thereof; a. nevertheless any donation made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; 4. any physician surgeon, nurse, health officer, or druggist who took care of th e donor during his last illness, 5. individuals, associations and corporations not permitted by law to receive do nations. ~ The incapacity to inherit by reason of unworthiness provided in Article 1032 i s not included within the scope of the above article. ~ A donation made to a person who falls under the provisions of said article wou ld be valid, because a testamentary provision made in favor of such person after the testator has knowledge of the act of unworthiness would constitute pardon u nder Article 1033. ~ On the other hand, if the donation has already been made when the cause of unw orthiness occurs, the donation is not revoked only by the causes mentioned in Ar ticles 760, 764 and 765. RULES IN CASES OF DOUBLE DONATIONS: (Apply the rule on double sales, Art 1544, N CC) 1. movable property = the ownership shall be transferred to the donee who have f irst taken possession thereof in good faith; 2. immovable property = the ownership shall belong to the donee who first record ed it in the registry of property. 3. if there he be inscription, the ownership shall pertain to the donee who in g ood faith was the first in the possession; and in the absence thereof, to the do nee who presents the oldest title, provided there is good faith. REVOCATION AND REDUCTION OF DONATIONS: Article 760: Every donation inter-vivos made by a person having no children or d escendants, legitimate or legitimated by subsequent marriage, or illegitimate, m ay be revoked or reduced by the happening of any of these events: 1. If the donor, after the donation, should have legitimate or legitimated child

ren, even though they are posthumous, 2. If the child of the donor whom the latter believed to be dead when he made th e donation, should turn out to be living; 3. If the donor should subsequently adopt a minor child. When the revocation should take effect: 1. The donation is revoked or reduced by the happening of any of the events enum erated in Article 760. In other words, the revocation or reduction takes place i pso jure. a. No action is necessary to revoke or reduce the donation winch is already cons idered by law as revoked. b. Court action is necessary however, when the donee refuses to return the prope rty. In such case, the decision of the court will be merely declaratory of the r evocation - it will not be a revocatory act. 2. Birth, reappearance and adoption (BRA) as causes for the revocation or reduct ion. a. The article seeks to protect the presumptive legitimate or the expected legit ime of the heir 3. The value of the estate is to be considered at the time of the birth, reappea rance or adoption; 4. The action to reduce must be brought within 4 years. (Art 763) This action ca nnot be renounced. 5. The article applies only to donation inter vivos and not only to; a. donations propter nuptias (which can be revoked only for causes enumerated by law); b. onerous donations (for these are really contracts); c. mortis cause (for this is revocable for any or no cause ). Art. 763. The action for revocation or reduction on the grounds set forth in Art . 760 shall prescribe after 4 years: 1. from the birth of the first child, or 2. from his legitimation, recognition or adoption, or 3. from the judicial declaration of filiation, or 4. from the time information was received regarding the existence of the child b elieved dead. This action cannot be renounced, and is transmitted, upon the death of t he donor, to his legitimate and illegitimate children and descendants. ILLUSTRATION: X has no child. At the time he gave the donation of P10,000, he had P100,000. Therefore, after the donation, he had P90,000 left. Later, he adopted a minor c hild. At the same time he made the adoption he had only P5,000 left. Should the donation be reduced? If so, how much? Note: The value of the estate is to be considered at the time of the birth, reap pearance, or adoption: 15,000 Total 5,000 Property 10,000value of estate Donation left at the time of adoption Legitimate = P 15,000 x = P7,500.00 Since the value of the estate is only P5,000, the donation must be reduced by P2 ,500.00. Cruz vs. CA, 140 SCRA 245 F: Cruz, a childless widow executed a donation of a residential lot to her grand nieces. She subsequently adopted a child and tried to revoke the donation. The g randnieces opposed H: donation cannot be revoked bec. the complaint for annulment does not allege t hat the donation impairs the legitime of the adopted child In the case of the subsequent adoption of a minor by one who had previou sly donated some or all of his properties to another, the donor may sue for the

annulment or reduction of the donation within 4 years from the date of the adopt ion, if the donation impairs the legitime of the adopted, taking into account th e whole estate of the donor at the time of the adoption of the child. The burden of proof is on the donor, who must allege and establish the requirement or redu ction of the donation that can be adjudged. Art. 764. The donation shall be revoked at the instance of the donor, when the d onee fails to comply with any of the conditions which the former imposed upon th e latter. In this case, the property donated shall be returned to the donor, the a lienations made by the donee and the mortgages imposed thereon by him being void , with the limitations established, with regard to third persons, by the Mortgag e Law and the Land Registration laws. This action shall prescribe after 4 years from the noncompliance with th e condition, may be: 1. transmitted to the heirs of the donor, and 2. exercised against the donee's heirs. ~ A donation may also be revoked at the instance of the donor when the donee fai ls to comply with any of the conditions which the former imposed upon the latter . ~ Exception: when the condition is immoral, illegal, or impossible. ~ Effect of non-fulfillment: o the donor has the choice of enforcing the condition by action for specific per formance. The donee having bound himself to carry out the condition imposed by a ccepting the donation may be compelled with what has been stipulated. ~ A court action is necessary if the donee refuses to return the property Art 765: The donation may also be revoked at the instance of the donor, by reaso n of ingratitude in the following cases: 1. If the donee should commit some offense against the person, the honor, or the property of the donor or of his wife or children under his parental authority 2. if the donee impute to the donor any criminal offense, , or any act involving moral turpitude, even though he should prove it, unless the crime or the act ha s been committed against the donee himself, his wife or children under his autho rity; 3. If he unduly refuses him support when the donee is legally or morally bound t o give support to the donor. Note #2: Offense does not mean a criminal offense, it may also include non-criminal of fenses. No criminal conviction is necessary, and proof of the of the offense by mere preponderance of evidence in a suit for revocation is sufficient; Notes #3: a. there is legal or moral ground; b. the refusal to support must be "made" or "unjustified" c. it is understood that the support given periodically should not exceed the va lue of the thing donated. The moment this amount is reached, the duty to support also ends. Art. 769. The action granted to the donor by reason of ingratitude cannot be ren ounced in advance. This action prescribes within 1 year, to be counted from the time: 1. the donor had knowledge of the fact and 2. it was possible for him to bring the action. Prescriptive period for revocation by reason of ingratitude shall be one (1) year from the time the donor had knowledge of the fact and it was possible for h

im to bring the action. Art. 770. This action shall not be transmitted to the heirs of the donor, if don or did not institute the same, although he could have done so, and even if he sh ould die before the expiration of 1 year. Neither can this action be brought against the heir of the donee, unless upon the donee's death the complaint has been filed. ~ o ~ o o o The action for revocation is not transmitted to the heirs of the donor. Reason: Because the grounds for revocation are purely personal to the donor. Exceptions: when the action was already instituted but the donor subsequently died when the donor is killed by the donee: the donor died without knowing the act of ingratitude

Inofficious donations: Art. 771. Donations which in accordance with Art. 752, are inofficious, bearing in mind the estimated net value of the donor's property at the time of his death , shall be reduced with regard to the excess; but this reduction shall not preve nt the donations from taking effect during the life of the donor, nor shall it b ar the donee from appropriating the fruits. For the reduction of donations the provisions of this Chapter and of Art . 911 and 912 of this Code shall govern. ~ The value of the estate at the time of the donor's death: o Net Estate plus properly left at the time of death less debts and charges plus value of donations. ~ The donation may be considered inofficious, only in so far as it may affect th e legitime of the heirs. ~ Since the inofficiousness of the donation cannot he determined till after the donor s death, it follows that in the meantime, the donation is valid and ownershi p is transmitted to the donee during the donor s lifetime. ~ Prescriptive period: o The action to reduce or revoke may be brought within a period of 5 years from the time of the donor s death (Art 1149 NCC) ~ Who may bring the action to reduce? o compulsory heirs of the donor; o heirs and successors-in-interests of the compulsory heirs.

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1 Property Review Emily Zen Chua