property beda

San Beda College of Law 26

MEMORY AID IN CIVIL LAW

PROPERTY

PROPERTY All things which are, or may be the

object of appropriation

Requisites: (USA)1. u tility 2. s ubstantivity or individuality3. a ppropriability

I.A. IMMOVABLE PROPERTIES1. land, buildings, roads and

constructions of all kinds adhered to the soil;

2. trees, plants and growing fruits, while they are attached to the land or form an integral part of an immovable;

3. everything attached to an immovable in a fixed manner in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object;

4. statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements;

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 or on a piece of land, and which tend directly to meet the needs of the said industry or works;Requisites:a. made by ownerb. industry or works carried on

building or on landc. machines, etc must tend directly

to meet needs of the industry or works

d. machines, etc. must be essential and principal elements of the industry.

6. animal houses, pigeon-houses, 7. beehives, fishponds or breeding

places of similar nature, in case their owner has placed or preserved them, with the intention to have them permanently attached to the land, and

forming a permanent part of it; the animals in those places are included;

8. fertilizer actually used on a piece of land;

9. mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant;

10. docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake or coast; and

11. contracts for public works, and servitudes and other real rights over immovable property

Categories: (NIDA)1. Real by nature – it cannot be

carried from place to place (pars. 1 & 8, Art. 415, Civil Code)

2. Real by incorporation – attached to an immovable in a fixed manner to be an integral part thereof (pars. 1-3 Art. 415, Civil Code)

3. Real by destination – placed in a n immovable for the utility it gives to the activity carried thereon (pars. 4-7 and 9 Art. 415, Civil Code)

4. By analogy it is so classified by express provision of law (par. 10, Art. 415, Civil Code)

B.MOVABLE PROPERTIES

1. those movables susceptible of appropriation which are not included in the preceding article;

2. real property which by any special provision of law is considered as personalty;

3. forces of nature which are brought under control of science;

4. in general, all things which can be transported from place to place without impairment of the real property to which they are fixed;

5. obligations and actions which have for their object movables or demandable sums; and

6. shares of stock of agricultural, CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

27 2005 CENTRALIZED BAR OPERATIONS

commercial and industrial entities, although they have real estate.

TESTS:a) By exclusion: movables are

everything not included in Art. 415.b) By description: an object is movable if

it possesses:1) Ability to change location2) Without substantial injury to the

immovable to which it is attached.

Important Doctrines/principles on immovable and movable properties:a) A Building is an immovable even if

not erected by the owner of the land. The only criterion is union or incorporation with the soil. (Ladera vs. Hodges, 48 O.G. 4374).

b) Parties to a contract may by agreement treat as personal properties that which by nature would be real property; and it is a familiar phenomenon to see things classes as real property for purposes of taxation which on general principle might be considered personal property (Standard Oil Co. vs. Jaranillo, 44 Phil 631).

c) For purposes of attachment and execution and for purposes of the Chattel Mortgage Law, ungathered products have the nature of personal property. (Sibal vs. Valdez, 50 Phil, 512).

d) The human body, whether alive or dead, is neither real nor personal property, for it is not even property at all, in that it generally cannot be appropriated. Under certain conditions, the body of a person or parts thereof may be subject matter of a transaction. (See RA No. 349, RA No. 7170, RA No. 7719).

e) What is the effect of temporary separation of movables from the immovables to which they have been attached?2 Views:1) They continue to be regarded

as immovables.2) Fact of separation determines

the condition of the objects thus recovering their condition as movables.

* the latter view is supported by Paras and Tolentino who maintains that the failure of the codifiers to reproduce the provision of the partidas on the matter is an indication that they did not intend the rule to continue.

f) A building that is to be sold or mortgaged and which would be immediately demolished may be considered personal property and the sale or mortgage thereof would be a sale of chattel, or a chattel mortgage respectively, for the true object of the contract would be the materials.

II.A. PROPERTY OF PUBLIC DOMINION Concept: It is not owned by the state

but pertains to the state, which, as territorial sovereign exercises certain juridical prerogatives over such property. The ownership of such properties is in the social group, whether national, provincial or municipal.

Purpose: To serve the citizens and not the state as a juridical person.

Kinds:1. Those intended for public use2. Those which are not for public

use but intended for public service

3. Those intended for the development of the national wealth

CHARACTERISTICS: 1. Outside the commerce of man2. Inalienable. But when no longer

needed for public use or service, may be declared patrimonial property. In Laurel vs. Garcia (187 SCRA 797), the Supreme Court held that “whether or not the Roppongi and related properties will eventually be sold is a policy determination where both the President and Congress must concur”.

3. Cannot be acquired by prescription

4. Not subject to attachment or execution

5. Cannot be burdened with easements

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)



NOTE: They cannot be registered under the land registration law and be the subject of a Torrens title. The character of public property is not affected by possession or even a Torrens Title in favor of private persons. (Palanca vs. Commonwealth, 69 Phil. 449).

B. PATRIMONIAL PROPERTY OF THE STATE Property of the State owned by it in

its private or proprietary capacity. the state has the same rights over

this kind of property as a private individual in relation to his own private property

C. PROPERTY OF LOCAL GOVERNMENT UNITS (LGUs)1. Property for public use – consist of

roads, streets, squares, fountains, public waters, promenades and public works for public service paid for by the LGUs

2. Patrimonial Property – all other property possessed by LGUs without prejudice to provisions of special laws

NOTE: In the case of Province of Zamboanga Del Norte vs. City of Zamboanga, the Supreme Court categorically stated that “this court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The classification of municipal property devoted for distinctly governmental purposes as public should prevail over the Civil Code in this particular case”. Here, the Law of Municipal Corporations was considered as a special law in the context of Article 424 of the NCC.

D. PROPERTY OF PRIVATE OWNERSHIP

refers to all property belonging to private persons either individually or collectively and those belonging to the State and any of its political subdivisions which are patrimonial in nature

Muebles or furniture generally has for its principal object the furnishing or ornamenting of a building. Note that

there are exceptions to this definition and are generally not included as furniture unless the law or the individual’s declaration include them.

OWNERSHIP The right to enjoy, dispose, and

recover a thing without further limitations than those established by law or the will of the owner.

Rights included: 1. Right to enjoy: (PUFA)

a) to possess (jus possidendi)b) to use (jus utendi)c) to the fruits (jus fruendi) and

accessionsd) to abuse (jus abutendi)

2. Right to dispose: (DATE)a) to destroyb) to alienatec) to transformd) to encumber

3. Right to vindicate: (RP)a) pursuitb) recovery

4. Right to exclude: (ER)a) to enclose, fence and delimitb) to repel intrusions even with

force

Characteristics: (EGEIP)1. Ownership is Elastic – power/s may

be reduced and thereafter automatically recovered upon the cessation of the limiting rights.

2. G eneral – the right to make use of all the possibilities or utility of the thing owned, except those attached to other real rights existing thereon.

3. E xclusive – there can only be one ownership over a thing at a time. There may be two or more owners but ONLY ONE ownership.

4. I ndependence – It exists without necessity of any other right

5. P erpetuity – ownership lasts as long as the thing exists. It cannot be extinguished by non user but only by adverse possession.

Limitations:1. General limitations imposed by the

State for its benefit2. Specific limitations imposed by law3. Limitations imposed by the party

CIVIL LAW COMMITTEE CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)


transmitting the property either by contract or by will

4. Limitations imposed by the owner himself

5. Inherent limitations arising from conflict with other rights

De Facto case of Eminent Domain expropriation resulting from the

actions of nature as in one case where land becomes part of one sea. The owner loses his property in favor of the state without any compensation.

Principle of Self-Help right of the owner or lawful possessor

to exclude any person from the enjoyment and disposal of the property by the use of such force as may be necessary to repel or prevent actual or threatened unlawful physical invasion or usurpation of his property.

Requisites: (RONA)1. r easonable force2. o wner or lawful possessor is the

person who will exercise3. n o delay in one’s exercise4. a ctual or threatened physical invasion

or usurpation

GENERAL RULE: A person cannot interfere with the right of ownership of another.EXCEPTION: Doctrine of Incomplete Privilege or State of Necessity (Article 432)

Requisites: (ID)1. I nterference necessary2. D amage to another much greater

than damage to property

LEGAL REMEDIES TO RECOVER POSSESSION OF ONE’S PROPERTY1. Personal property: Replevin REPLEVIN - remedy when the

complaint prays for the recovery of the possession of personal property.

2. Real Property:a. ACCION INTERDICTAL Nature: summary action to

recover physical or material possession only. It consists of the summary actions of:1. Forcible entry

Action for recovery of material possession of real property when a person originally in possession was deprived thereof by force, intimidation, strategy, threat or stealth

2. Unlawful Detainer Action for recovery of

possession of any land or building by landlord, vendor, vendee, or other person against whom the possession of the same was unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract.

Forcible Entry Unlawful Detainer

As to when possession became unlawfulPossession of the defendant is unlawful from the beginning as he acquires possession by Force, intimidation, strategy, threat or stealth

Possession is inceptively lawful but becomes illegal from the time defendant unlawfully withholds possession after the expiration or termination of his right thereto.

As to the necessity of demandNo previous demand for the defendant to vacate is necessary

Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease contract

As to necessity of proof of prior physical possession

Plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant

Plaintiff need not have been in prior physical possession

As to when the 1 year period is counted from

1 year period is generally counted from the date of actual entry on the land

1 year period is counted from the date of last demand or last letter of demand






b. ACCION PUBLICIANA Nature: Ordinary civil proceeding

to recover the better right of possession, except in cases of forcible entry and unlawful detainer. The involved is not possession de facto but possession de jure.

c. ACCION REIVINDICATORIA Nature: action to recover real

property based on ownership. Here, the object is the recovery of the dominion over the property as owner.

Requisites:1. Identity of the Property2. Plaintiff’s title to the property

Surface Rights The owner of parcel of land is the

owner of its surface and everything under it.

The economic utility which such space or subsoil offers to the owner of the surface sets the limit of the owner’s right to the same.

HIDDEN TREASURE Definition: any hidden or unknown

deposit of money, jewelry or other precious objects, the lawful ownership of which does not appear.

GENERAL RULE: It belongs to the owner of the land, building or other property on which it is found.EXCEPTIONS: The finder is entitled to ½ provided:

1. Discovery was made on the property of another, or of the state or any of its political subdivisions;

2. The finding was made by chance;3. The finder is not a co-owner of the

property where it is found;4. The finder is not a trespasser;5. The finder is not an agent of the

landowner;6. The finder is not married under

the absolute community or the conjugal partnership system (otherwise his share belongs to the community).

ACCESSION

The right by virtue of which the owner of a thing becomes the owner of everything that it may produce or which may be inseparably united or incorporated thereto, either naturally or artificially.

Classifications:1. Accession Discreta – the right pertaining to the owner of a thing over everything produced thereby

Kinds of Fruitsa. natural fruits – spontaneous

products of the soil and the young and other products of animals

b. industrial fruits – those produced by lands of any kind through cultivation or labor

c. civil fruits – rents of buildings, price of leases or lands and the amount of perpetual or life annuities or other similar income

GENERAL RULE: To the owner belongs the natural, industrial, and civil fruits.EXCEPTIONS: If the thing is: (PULA)a) in possession of a possessor in

good faith;b) subject to a usufruct;c) l eased or pledged; ord) in possession of an antichretic

creditor

2. Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated or attached thereto either naturally or artificially; by external forces.

a. With respect to real propertyi. accession industrial

building, planting or sowingii. accession natural

alluvium, avulsion, change of river course, and formation of islands

b. With respect to personal property

i. adjunction or conjuction ii. commixtion or confusion iii specification

Basic Principles: (GONE BAD)



1. He who is in g ood faith may be held responsible but will not be penalized.

2. To the o wner of a thing belongs the extension or increase of such thing.

3. Bad faith of one party n eutralizes the bad faith of the other.

4. There should be no unjust e nrichment at the expense of others.

5. B ad faith involves liability for damages.

6. A ccessory follows the principal.7. Accession exists only if the

incorporation is such that separation would either seriously d amage the thing or diminish its value.

Right of Accession with respect to Immovable PropertyNOTE: See TABLES

Important Doctrines/Principles:a) Under Art 448, the landowner may

not refuse both to pay for the building and to sell the land and instead seek to compel the owner of the building to remove the building from the land. He is entitled to such removal ONLY when, after having chosen to sell the land, the other party fails to pay for said land. (Ignacio vs. Hilario, 76 Phil. 605)

b) Should no other arrangement be agreed upon, the owner of the land does not automatically become the owner of the improvement. (Filipinas Colleges, Inc. vs. Timbang, 106 Phil. 247)

c) Article 448 is not applicable where a person constructs a house on his own land and then sells the land, not the building. (Coleongco vs. Regalado, 27 Phil 387)

d) Article 448 does not apply to cases which are governed by other provisions of law such as co-ownership, usufruct, agency, lease.

e) The provision on indemnity in Art. 448 may be applied by analogy considering that the primary intent of the law is to avoid a state of forced co-ownership especially where the parties in the main agree that Articles 448 and 546 are applicable and indemnity for the improvements may be paid although they differ as to the

basis of the indemnity. (Pecson vs. CA 244 SCRA 407).

ACCESSION NATURAL1. Alluvion or alluvium – increment

which lands abutting rivers gradually receive as a result of the current of the waters. Concept: it is the gradual deposit

of sediment by the natural action of a current of fresh water (not sea water, the original identity of the deposit being lost.

Requisites:a)the deposit be gradual and

imperceptibleb)that it be made through the effects

of the current of the water c)that the land where accretion takes

place is adjacent to the banks of the river.

NOTES: The owners of the lands adjoining the

banks of the river (riparian lands) shall own the accretion which they gradually receive.

Accretion operates ipso jure. However, the additional area is not covered by a Torrens title and the riparian owner must register the additional area.

Doctrines:a) Where the deposit is by sea

water, it belongs to the stateb) A gradual change of bed is also

governed by the rules of alluvium (Canas vs. Tuason 5 Phil. 689)

2. Avulsion – the transfer of a known portion of land from one tenement to another by the force of the current. The portion of land must be such that it can be identified as coming from a definite tenement.

Requisites:a) The segregation and transfer

must be caused by the current of a river, creek or torrent.

b) The segregation and transfer must be sudden or abrupt

c) The portion of land transported must be known or identified






NOTES: The owner must remove the

transported portion within two years to retain ownership

In case of uprooted trees, the owner retains ownership if he makes a claim within 6 months. This refers only to uprooted trees and does not include trees which remain planted on a known portion of land carried by the force of the waters. In this latter case, the trees are regarded as accessions of the land through gradual changes in the course of adjoining stream. (Payatas vs. Tuazon)

Registration under the Torrens system does not protect the riparian owner against diminution of the area of his land through gradual changes in the course of adjoining stream (Payatas vs. Tuazon).

Alluvium Avulsion1. gradual and imperceptible

1. sudden or abrupt process

2. soil cannot be identified

2. identifiable and verifiable

3. belongs to the owner of the property to which it is attached

3. belongs to the owner from whose property it was detached

4. merely an attach-ment

4. detachment fol-lowed by attachment

3. Change of course of rivers Requisites:

a) There must be a natural change in the course of the waters of the river

b) The change must be abrupt or sudden

NOTES: Once the river bed has been

abandoned, the owners of the invaded land become owners of the abandoned bed to the extent provided by this article. No positive act is needed on their part, as it is subject thereto ipso jure from the moment the mode of acquisition becomes evident.

It does not apply to cases where the river simply dries up because there are no persons whose lands are

occupied by the waters of the river.

4. Formation of Islands RULES ON OWNERSHIP

a. If formed by the sea:1) within territorial waters - State2) outside territorial waters – to

the first occupantb. If formed in lakes, or navigable or

floatable rivers - Statec. If formed on non-navigable or non-

floatable rivers:1) if nearer to one margin or

bank – to the nearer reparian owner

2) if equidistant from both banks- to the reparian owners, by halves.

NOTE: There is no accession when islands are formed by the branching of a river; the owner retains ownership of the isolated piece of land.

Right of Accession with respect to movable property Basic Principle: Accession exists

only if separation is not feasible. Otherwise, separation may be demanded.

KINDS (accession continua as to movables):

1. Adjunction the union of two things belonging

to different owners, in such a manner that they cannot be separated without injury, thereby forming a single object.

Requisitesa) the two things must belong to

different ownersb) that they form a single object, or

that their separation would impair their nature

Kinds:a. inclusion or engraftmentb. soldadura or solderingc. escritura or writingd. pintura or paintinge. tejido or weaving

Tests to determine principal:a. the “rule of importance and

purposeb. that of greater valuec. that of greater volume



d. that of greater merits

Rules:a) Adjunction in good faith by either

owner:GENERAL RULE: accessory follows the principal.EXCEPTIONS if the accessory is much more precious than the principal, the owner of the accessory may demand the separation even if the principal suffers some injury

b) Adjunction in bad faith by the owner of the principal option of the owner of the

accessory:i) to recover the value plus

damagesii) to demand separation plus

damagesc) Adjunction in bad faith by the owner

of the accessoryi) he loses the accessoryii) he is liable for damages

When separation of things allowed:a. separation without injuryb. accessory is more precious

than the principalc. owner of the principal acted

in bad faith2. Mixture

Union of materials where the components lose their identity.

Kinds:a. Commixtion – mixture of

solidsb. Confusion – mixture of liquids

Rules:a. By the will of both owners or by

accident: each owner acquires an interest in proportion to the value of his material

b. By one owner in good faith: apply rule(a)

c. By one owner in bad faith:i) he loses all his rights to his

own materialii) he is liable for damages

3. Specification It is the transformation of another’s

material by the application of labor. The material becomes a thing of different kind.

Labor is the principal

Rules:a) Owner of the principal (worker) in

good faith:i) maker acquires the new thingii) he must indemnify the owner

of the materialEXCEPTION: if the material is more valuable than the resulting thing, the owner of the material has the option:1) to acquire the work,

indemnifying for the labor, or2) to demand indemnity for the

materialb) owner of the principal (worker) in

bad faith: the owner of the material has the option:i) to acquire the result without

indemnityii) to demand indemnity for the

material plus damagesc) Owner of the material in bad faith

i) he loses the materialii) he is liable for damages

Adjunction Mixture Specification1. Involves at least 2 things

Involves at least 2 things

May involve one thing (or more) but form is changed

2. Accessory follows the principal

Co-ownership results

Accessory follows the principal

3. Things joined retain their nature

Things mixed or confused may either retain or lose their respective natures

The new object retains or preserves the nature of the original object.

QUIETING OF TITLE It is an equitable action in rem to

determine the condition of the ownership or the rights to immovable property, and remove doubts thereon.

Requisites:1. plaintiff must have a legal or equitable

title to, or interest in the real property which is the subject matter of the action;

2. there must be a cloud in such title; 2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT

CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan




3. such cloud must be due to some instrument, record, claim, encumbrance or proceeding which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and

4. plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to his benefit.

Prescriptive Period:1. plaintiff in possession –

imprescriptible 2. plaintiff not in possession – 10

(ordinary) or 30 years (extraordinary)

Action to quiet title

Action to remove a cloud

on title PURPOSE

to put an end to troublesome litigation in respect to the property involved

to remove a possible foundation for a future hostile claim

NATURE OF THE ACTIONremedial action involving a present adverse claim

Preventive action to prevent a future cloud on the title

The action to quiet title does not apply:a) to questions involving interpretation

of documentsb) to mere written or oral assertions of

claims; EXCEPT:i) if made in a legal proceedingii) if it is being asserted that the

instrument or entry in plaintiff’s favor is not what it purports to be

c) to boundary disputesd) to deeds by strangers to the title

UNLESS purporting to convey the property of the plaintiff

e) to instruments invalid on their face

f) where the validity of the instrument involves pure questions of law

Ruinous Buildings and Trees in Danger of Falling: As to buildings – the owners is

obliged to demolish or execute necessary work to prevent the building from falling. Should he fail to do so, the authorities shall order its demolition at the expense of the owner, or take measures to insure public safety.

The complainant must show that his property is adjacent to the dangerous construction, or must have to pass by necessity in the immediate vicinity.

The owner is responsible for damages to others due to lack of necessary repairs. However, if the damage is caused by defects in the construction, then the builder is responsible for the damages.

CO-OWNERSHIP Definition: the right of common

dominion which two or more persons have in a spiritual part of a thing which is not physically divided.

Concept: co-ownership exists where the ownership of a thing physically undivided pertains to more than one person.

Characteristics:a)plurality of subjects (the co-owners)b)there is a single object which is not

materially divided c)there is no mutual representation

by the co-ownersd)it exist for the common enjoyment

of the co-ownerse)it has no distinct legal personalityf) it is governed first of all by the

contract of the parties; otherwise, by special legal provisions, and in default of such provisions, by the provisions of Title III on co-ownership

Sources:1. Law2. Contract3. Chance4. Occupation



5. Succession6. Testamentary disposition or

donation inter vivos

Co-ownership Partnership1. Can be created without the formalities of a contract

1. Can be created only by contract, express or implied

2. Has no juridical or legal personality

2. Has juridical personality distinct from the partners

3. Purpose is collective enjoyment of the thing

3. Purpose is to obtain profits

4. Co-owner can dispose of his shares without the consent of the others with the transferee automatically becoming a co-owner

4. A partner, unless authorized cannot dispose of his share and substitute another as a partner in his place

5. There is no mutual representation

5. A partner can generally bind the partnership

6. Distribution of profits must be proportional to the respective interests of the co-owners

6. Distribution of profits is subject to the stipulation of the parties

7. A co-ownership is not dissolved by the death or incapacity of a co-owner

7. Death or incapacity dissolves the partnership

8. no public instrument needed even if real property is the object of the co-ownership

8. May be made in any form except when real property is contributed

9. An agreement to keep the thing undivided for a period of more than 10 years is void

9. There may be agreement as to a definite term without limit set by law

Rules:1. Rights of each co-owner as to the

thing owned in common: USBRAP-LDPa) To use the thing owned in common Limitations:

i) use according to the purpose for which it was intended

ii) interest of the co-ownership must not be prejudiced

iii) other co-owners must not be prevented from using it according to their own rights

b) To share in the benefits and charges in proportion to the interest of each.

NOTE: Any stipulation to the contrary is void.c) To the benefits of prescription:

prescription by one co-owner benefits all.

d) Repairs and taxes: to compel the others to share in the expenses of preservation even if incurred without prior notice.

NOTE: The co-owner being compelled may exempt himself from the payment of taxes and expenses by renouncing his share equivalent to such taxes and expenses. The value of the property at the time of the renunciation will be the basis of the portion to be renounced.e) Alterations: to oppose alterations

made without the consent of all, even if beneficial.

NOTES: Alteration is an act by virtue of

which a co-owner changes the thing from the state in which the others believe it should remain, or withdraws it from the use to which they desire it to be intended. Expenses to improve or

embellish are decided by the majority

f) To protest against seriously prejudicial decisions of the majority

g) Legal redemption: to be exercised within 30 days from written notice of sale of an undivided share of another co-owner to a stranger

h) To defend the co-ownership’s interest in court

i) To demand partition at any time Partition is the division between 2 or more persons of real or personal property which they own in common so that each may enjoy and possess his sole estate to the exclusion of and without interference from others GENERAL RULE: Partition is demandable by any of the co-owners as a matter of right at any time. EXCEPTIONS:






1) When there is a stipulation against it; but not to exceed 10 years.

2) When the condition of indivision is imposed by the donor or testator; but not to exceed 20 years.

3) When the legal nature of the community prevents partition.

4) When partition would render the thing unserviceable.

5) When partition is prohibited by law

6) When another co-owner has possessed the property as exclusive owner for a period sufficient to acquire it by prescription.

2. The following questions are governed by the majority of interests:a) Management Minority may appeal to the court

against the majority’s decision if the same is seriously prejudicial.

b) Enjoymentc) Improvement or embellishment

3. Rights as to the ideal share of each co-owner:

a) Each has full ownership of his part and of his share of the fruits and benefits

b) Right to substitute another person its enjoyment, EXCEPT when personal rights are involved

c) Right to alienate, dispose or encumber

d) Right to renounce part of his interest to reimburse necessary expenses incurred by another co-owner

e) Transactions entered into by each co-owner only affect his ideal share.

EXTINGUISHMENT OF CO-OWNERSHIP (CALSTEP)1. c onsolidation or merger in one co-

owner2. a cquisitive prescription in favor of a

third person or a co-owner who repudiates the co-ownership

3. l oss or destruction of property co-owned

4. s ale of property co-owned5. t ermination of period agreed upon by

the co-owners6. e xpropriation7. judicial or extra-judicial partition

CONDOMINIUM ACT (R.A. NO. 4726)CONDOMINIUM an interest in real property consisting

of a separate interest in a unit in a residential, industrial or commercial building and an undivided interest in common, directly or indirectly, in the land on which it is located and in other common areas of the building.

Any transfer or conveyance of a unit or an apartment, office or store or other space therein, shall include transfer or conveyance of the undivided interest in the common areas or, in a proper case, the membership or shareholdings in the condominium corporation: provided, however, that where the common areas in the condominium project are held by the owners of separate units as co-owners thereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens or corporations at least 60% of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession.

GENERAL RULE: Common areas shall remain undivided, and there shall be no judicial partition thereof:EXCEPTIONS:1. When the project has not been rebuilt

or repaired substantially to its state prior to its damage or destruction 3 years after damage or destruction which rendered a material part thereof unfit for use;

2. When damage or destruction has rendered ½ or more of the units untenantable and that the condominium owners holding more than 30% interest in the common areas are opposed to restoration of the projects;

3. When the project has been in existence for more than 50 years, that it is obsolete and uneconomic, and the condominium owners holding in aggregate more than 50% interest in



the common areas are opposed to restoration, remodeling or modernizing;

4. When the project or a material part thereof has been condemned or expropriated and the project is no longer viable, or that the condominium owners holding in aggregate more than 70% interest in the common areas are opposed to the continuation of the condominium regime;

5. When conditions for partition by sale set forth in the declaration of restrictions duly registered have been met.

WATERS Classification

a) Waters public per se (water is the principal; the bed follows the character of the water (See Arts. 502 [1] and 502 [2])

b) Waters public or private according to their bed (water is accessory to bed)

c) Waters public by special provision

POSSESSION Concept: the material holding or

control of a thing or the enjoyment of a right.

Requisites:1. occupancy, apprehension, or taking2. deliberate intention to possess3. by virtue of ones own right

Degrees:1. possession without any title

whatsoever2. possession with juridical title3. possession with just title sufficient to

transfer ownership4. possession with a title in fee simple

Classes: a) In one’s own name – where

possessor claims the thing for himselfb) In the name of another – for whom

the thing is held by the possessorc) In the concept of owner – possessor

of the thing or right , by his actions, is considered or is believed by other people as the owner, regardless of the good or bad faith of the possessor

d) In the concept of holder – possessor holds it merely to keep or enjoy it, the ownership pertaining to another person; possessor acknowledges in another a superior right which he believes to be ownership.

NOTE: None of these holders assert a claim of ownership in himself over the thing but they may be considered as possessors in the concept of owner, or under claim of ownership, with respect to the right they respectively exercise over the thing.e) In good faith – possessor is not

aware that there is in his title or mode of acquisition a defect that invalidates it Requisites:

1. Ostensible title or mode of acquisition

2. Vice or defect in the title3. Possessor is ignorant of the

vice or defect and must have an honest belief that the thing belongs to him

NOTE: Gross and inexcusable ignorance of the law may not be the basis of good faith, but possible, excusable ignorance may be such basis. (Kasilag vs Roque, 69 PHIL 217)f) In bad faith – possessor is aware of

the invalidating defect in his own title.NOTES: Only personal knowledge of the flaw

in one’s title or mode of acquisition can make him a possessor in bad faith. It is not transmissible even to an heir.

Possession in good faith ceases from the moment defects in his title are made known to the possessor. This interruption of good faith may take place at the date of summons or that of the answer if the date of summons does not appear. However, there is a contrary view that the date of summons may be insufficient to convince the possessor that his title is defective.

Presumptions in favor of possessor:

1. of good faith2. of continuity of initial good faith3. of enjoyment in the same character in

which possession was acquired until 2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT

CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics). Jonathan




the contrary is proved4. of non-interruption in favor of the

present possessor5. of continuous possession by the one

who recovers possession of which he was wrongfully deprived

6. of extension of possession of real property to all movables contained therein

Object of possession: GENERAL RULE: All things and rights susceptible of being appropriatedEXCEPTIONS:1. Res communes2. Property of public dominion3. Discontinuous servitudes4. Non-apparent servitudes

Acquisition of possession: Manner1. Material occupancy of the thing2. Subjection to the action of our will3. Proper acts and legal formalities

established for acquiring such right. Conflicts between several claimants:GENERAL RULE: Possession cannot be recognized in two different personalities except in case of co-possession when there is no conflict Criteria in case of dispute: 1. present/actual possessor shall be

preferred2. if there are two possessors, the one

longer in possession3. if the dates of possession are the

same, the one with a title4. if all the above are equal, the fact of

possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit

Subject Possessor in good faith

Possessor in bad

faitha. Fruits gathered

a. to possessor

a. to owner

b. Cultivation Expenses of gathered fruits

b. not reimbursed to possessor

b. reimbursed to possessor

c. Fruits pending

c. prorated according to

c. to owner

and charges

time

d. Production expenses of pending fruits

d. indemnity pro rata to possessor (owner’s option)

i. in money, orii. by allowing full cultivation and gathering of all fruits

d. no indemnity

e. Necessary expenses

e. reimbursed to possessor; retention

e. reimbursed to possessor; no retention

f.. Useful expenses

f. reimbursed to possessor (owner’s option) i. initial cost ii. plus value may remove if no reimburse-ment, and no damage is caused to the principal by the removal

f. no reimbursement

g. Ornamen-tal expenses

g. reimbursement at owner’s option: i. removal if no injury, or ii. cost without removal

g. owner’s option: i. removal, or ii. value at time of recovery

h. Taxes and charges i. on capital

ii. on fruits

iii. charges

h. taxes and charges i. charged to owner ii. charged to possessor iii. prorated

h. taxes and charges i. charged to owner ii. charged to owner iii. to owner

i. Improve-ments no longer existing

i. no reimbursement

i. no reimburse-ment

j. Liability for accidental loss or deterioratio

j. only if acting with fraudulent intent or negligence, after summons

j. liable in every case



nk. Improve- ments due to time or nature

k. to owner or lawful possessor

k. to owner or lawful possessor

Possession of movables Possession of movables in good faith

is equivalent to title. Requisites:

a) possession is in good faithb) the owner has voluntarily parted

with the possession of the thingc) possessor is in the concept of

ownerOne who has lost or has been unlawfully deprived of it , may recover it from whomsoever possesses it, ordinarily, without reimbursement.

Doctrines:a) owner of the thing must prove (1)

ownership of the thing and (2) loss or unlawful deprivation; or bad faith of the possessor

b) Where the owner acts negligently or voluntarily parts with the thing owned, he cannot recover it from the possessor

c) The owner may recover the movable in case of loss or involuntary deprivation; but must reimburse the price paid if possessor acquired the thing in good faith and at a public sale.

Loss of possession: 1. By the will of the possessor

a) Abandonmentb) Transfer or conveyance

2. Against the will of the possessora) Eminent domainb) Acquisitive prescriptionc) Judicial decree in favor of better

rightd) Possession of another for more

than one yearNOTE: this refers to possession de facto where the possessor loses the right to a summary action; but he may still bring action publiciana or reivindicatoriae) By reason of the object

i. destruction or total loss of the things ii. withdrawal from commerce

USUFRUCT gives a right to enjoy the property of

another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

Characteristics: a. Real rightb. Of temporary durationc. To derive all advantages from the

thing due to normal exploitationd. may be constituted on real or

personal property, consumable or non-consumable, tangible or intangible, the ownership of which is vested in another

e. transmissible

GENERAL RULE: Usufructuary is bound to preserve the form and substance of the thing in usufruct.EXCEPTION: Abnormal usufruct whereby the law or the will of the parties may allow the modification of the substance of the thing.

Usufruct Lease1. Always a real right

1.Generally a personal right

2. Person creating the usufruct should be the owner or his duly authorized agent

2. Lessor may not be the owner

3. May be created by law, by contract, by will of the testator, or by prescription

3.Generally created by contract

4. As a rule, usufruct covers all the fruits and all the uses and benefits of the entire property

4.Lease generally refers to uses only

5. Involves a more or less passive owner who allows the usufructuary to enjoy the object given in usufruct

5. Lease involves a more active owner or lessor who makes the lessee to enjoy

6. Pays for ordinary repairs and taxes on the fruits

6.Lessee is not generally under obligation to undertake repairs or






pay taxes

Special Usufructsa) of pension or income (Art 570)b) of property owned in common (Art.

582)c) of cattle (livestock) (Art. 591)d) on vineyards and woodlands (Art.

575-576)e) on a right of action (Art. 578)f) on mortgaged property (Art. 600)g) over the entire patrimony (Art. 598)h) over things which gradually

deteriorate (Art. 573)i) of consumable property (Art 574)

Rights of the Usufructuary1.As to the thing and its fruits

a. To receive and benefit from the fruits

b. To enjoy any increase through accessions and servitudes

c. To the half of the hidden treasure he accidentally finds

d. To lease the thing, generally, for the same or shorter period as the usufruct.

e. To improve the thing without altering its form and substance

f. Right to set-off the improvements he may have made on the property against any damage to the same

g. To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital

h. To collect reimbursements from the owner for indispensable extraordinary repairs, taxes on the capital he advanced, and damages caused to him.

i. To remove improvements made by him if the same will not injure the property

2. As to the usufruct itselfa. To mortgage the right of usufruct

except parental usufructb. To alienate the usufruct

Obligations of the usufructuary:1. Before exercising the usufruct:

a. To make an inventory of the property

b. To give a bond, EXCEPT

1) when no prejudice would result

2) when the usufruct is reserved by the donor or parents

3) in cases of caucion juratoria where the usufructuary, being unable to file the required bond or security, files a verified petition in the proper court asking for the delivery of the house and furniture necessary for himself and his family without any bond or security. takes an oath to take

care of the things and restore them

property cannot be alienated or encumbered or leased because this would mean that the usufructuary does not need it.

NOTE: Effects of failure to post bond:1. owner shall have the following

options:a. receivership of realty, sale of

movables, deposit of securities, or investment of money; OR

b. retention of the property as administrator

2. the net product shall be delivered to the usufructuary

3. usufructuary cannot collect credits due or make investments of the capital without the consent of the owner or of the court until the bond is given.

2. During the usufruct:a. To take care of the propertyb. To replace with the young thereof

animals that die or are lost in certain cases when the usufruct is constituted on flock or herd of livestock

c. To make ordinary repairsd. To notify the owner of urgent

extra-ordinary repairs e. To permit works and

improvements by the naked owner not prejudicial to the



usufructf. To pay annual taxes and charges

on the fruitsg. To pay interest on taxes on

capital paid by the naked ownerh. To pay debts when the usufruct is

constituted on the whole patrimony

i. To secure the naked owner’s or court’s approval to collect credits in certain cases

j. To notify the owner of any prejudicial act committed by third persons

k. To pay for court expenses and costs regarding usufruct.

3. At the termination of the usufruct:a. To return the thing in usufruct to

the owner unless there is a right of retention

b. To pay legal interest on the amount spent by the owner for extraordinary repairs or taxes on the capital

c. To indemnify the owner for any losses due to his negligence or of his transferees

Extinguishment of Usufruct: (PT2DERM)1. P rescription2. T ermination of right of the person

constituting the usufruct3. T otal loss of the thing4. D eath of the usufructuary, unless

contrary intention appears5. E xpiration of the period or fulfillment

of the resolutory condition6. R enunciation of the usufructuary7. M erger of the usufruct and ownership

in the same person

EASEMENT OR SERVITUDE Encumbrance imposed upon an

immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner.

Concept: it is a real right, constituted on the corporeal immovable property of another, by virtue of which the owner of the latter has to refrain from doing or must allow something to be done on his property, for the benefit

of another person or tenement.

Characteristics:a) It is a real right but will affect third

persons only when duly registeredb) It is enjoyed over another immovable,

never on one’s own propertyc) It involves two neighboring estates (in

case of real easements)d) It is inseparable from the estate to

which it is attached, and, therefore, cannot be alienated independently of the estate

e) It is indivisible for it is not affected by the division of the estate between two or more persons

f) It is a right limited by the needs of the dominant owner or estate, without possession

g) It cannot consist in the doing of an act unless the act is accessory in relation to a real easement

h) It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant owner; and, therefore, it is not presumed

Classification:1. As to its exercise:

a)Continuous Easements – those the use of which is, or may be, incessant without the intervention of any act of man

b) Discontinuous Easements – those which are used at intervals and depend upon the acts of man

2. As to the indication of their existence:a) Apparent Easements – those

which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same

b) Non-apparent Easements – those which show no external indication of their existence

3. As to duty of servient ownera) Positive – the servient owner

must allow something to be done in his property or do it himself. These are called servitudes of intrusion and or/service”

b) Negative – the servient owner must refrain from doing






something which he could lawfully do if the easement did not exist

Easement Lease1. Real right, whether registered or not

Real right only when it is registered, or when its subject matter is real property and the duration exceeds one year

2. Imposed only on real property

May involve either real or personal

3. There is a limited right to the use of real property of another but without the right of possession

Limited right to both the possession and use of another’s property

Easement Usufruct1. Imposed only on real property

May involve either real or personal property

2. Limited to particular or specific use of the servient estate

Includes all the uses and the fruits of the property

3. A non-possessory right over an immovable

Involves a right of possession in an immovable or immovable

4. Not extinguished by the death of the dominant owner

Extinguished by the death of the usufructuary

Modes of Acquisition: (PDFAT)1. by prescription of 10 years

(continuous and apparent easements)

2. by deed of recognition3. by final judgment4. by apparent sign established by

the owner of two adjoining estates

5. by title

Dominant Owner Rights

1. To exercise all the rights necessary for the use of the easement

2. To make on the servient estate all the works necessary for the use and preservation of the servitude

3. To renounce the easement if he

desires to exempt himself from contribution to necessary expenses

4. To ask for mandatory injunction to prevent impairment of his use of the easement

Obligations:1. Cannot render the easement or

render it more burdensome2. Notify the servient owner of works

necessary for the use and preservation of the servitude

3. Choose the most convenient time and manner in making the necessary works as to cause the least inconvenience to the servient owner

4. Contribute to the necessary expenses if there are several dominant estates

Servient Owner Rights:

1. To retain ownership and possession of the servient estate

2. To make use of the easement, unless there is agreement to the contrary

3. To change the place or manner of the easement, provided it be equally convenient

Obligations:1. Cannot impair the use of the

easement2. Contribute to the necessary

expenses in case he uses the easement, unless there is an agreement to the contrary

Extinguishment of Easements: (REMAIN BREW)

1. Redemption agreed upon2. Expiration of the term or

fulfillment of the resolutory condition

3. Merger of ownership of the dominant and servient estate

4. Annulment of the title to the servitude

5. Permanent Impossibility to use the easement

6. Non-user for 10 years a. discontinuous: counted



from the day they ceased to be used

b. continuous: counted from the day an act adverse to the exercise takes place

7. Bad condition - when either or both estates fall into such a condition that the easement could not be used

8. Resolution of the right to create the servitude, i.e. in case of pacto de retro, when the property is redeemed

9. Expropriation of the servient estate

10. Waiver by the dominant owner

EASEMENT FOR WATERING CATTLE This is really a combined easement for drawing of water and right of way Requisites:

a) must be imposed for reasons of public use

b) must be in favor of a town or village

c) indemnity must be paid

EASEMENT OF AQUEDUCT The right arising from a forced

easement by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow.

Character: apparent and continuous Requisites:

a) dominant owner must prove that he has the capacity to dispose of the water

b) that the water is sufficient for the intended use

c) that the course is most convenient, and least onerous to the 3rd person

d) payment of indemnity

RIGHT OF WAY The right granted to the owner of an

estate which is surrounded by other estates belonging to other persons and without an adequate outlet to a public highway to demand that he be

allowed a passageway throughout such neighboring estates after payment of proper indemnity

Requisites:1. Claimant must be an owner of

enclosed immovable or one with real right

2. There must be no adequate outlet to a public highway

3. Right of way must be absolutely necessary

4. Isolation must not be due to the claimant’s own act

5. Easement must be established at the point least prejudicial to the servient estate

6. Payment of proper indemnity it is the needs of the dominant

property which ultimately determine the width of the passage, and these needs may vary from time to time (Encarnacion vs. CA, 195 SCRA 72).

Special cause of extinction: the opening of a public road, or joining the dominant tenement to another with exit on a public road. NOTE: the extinction in NOT automatic. There must be a demand for extinction coupled with tender of indemnity by the servient owner.

PARTY WALL a common wall which separates 2

estates built by common agreement at the dividing line such that it occupies a portion of both estates on equal parts.

Party Wall Co-ownership1. Shares of parties cannot be physically segregated but they can be physically identified

Shares of the co-owners can be divided and separated physically but before such division, a co-owner cannot point to any definite portion of the property as belonging to him

2. No limitation as to use of the party wall for exclusive benefit of a party

None of the co-owners may use the community property for his exclusive benefit

3. Owner may free himself from contributing to the cost of repairs and

Partial renunciation is allowed






construction of a party wall by renouncing all his rights thereto

Presumptions of existence (juris tantum):1. in adjoining walls of buildings, up

to common elevation2. in dividing walls of gardens and

yards (urban)3. in dividing fences, walls and live

hedges of rural tenements4. in ditches or drains between

tenements

Rebuttal of presumption:1. title2. by contrary proof:3. by signs contrary to the existence

of the servitude (Arts. 660 & 661)NOTE: if the signs are contradictory, they cancel each other

Rights of part owners:1. to make use of the wall in

proportion to their respective interests, resting buildings on it or inserting beams up to one-half of the wall’s thickness

2. to increase the height of the walla. at his expenseb. upon payment of proper

indemnityc. to acquire half interest in any

increase of thickness or height, paying a proportionate share in the cost of the work and of the land covered by the increase

Obligations of each part-owners:1. to contribute proportionately to

the repair and maintenance unless he renounces his part-ownership

2. if one part owner raises the height of the wall, he must:a. bear the cost of maintenance

of the additionsb. bear the increased expenses

of preservationc. bear the cost of constructiond. give additional land, if

necessary, to thicken the wall

LIGHT AND VIEW1. Easement of Light (jus luminum) -

right to admit light from the neighboring estate by virtue of the opening of a window or the making of certain openings.

Requisites: a. opening must not be greater than

30 centimeters squared, made on the ceiling or on the wall; and

b. there must be an iron grating2. Easement of view (jus prospectus) –

the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or work which would obstruct such view or make the same difficult. It necessarily includes easement of light

Restrictions on openings in one’s own wall when contiguous (less than 2m) to another’s tenement:1. it cannot exceed 1 foot sq. (30 cm

each side)2. openings must be at the height of the

joists, near the ceiling (Choco vs. Santamaria, 21 Phil 132)

3. the abutting owner may: a. close the openings if the wall

becomes a party wallb. block the light by building or

erecting his own wall unless a servitude is acquired by title or prescription

c. ask for the reduction of the opening to the proper size

Restrictions as to views1. Direct views: the distance of 2

METERS between the wall and the boundary must be observed

2. Oblique views: (walls perpendicular or at an angle to the boundary line) must not be less than 60cm from the boundary line to the nearest edge of the window

NOTE: Any stipulation permitting lesser distances is void.

Modes of acquisition1. by title2. by prescription

a. positive – counted from the time



of the opening of the window, if it is through a party wall

b. negative – counted from the formal prohibition on the servient owner.

NOTE: mere non-observance of distances prescribed by Art. 670 without formal prohibition, does not give rise to prescriptionVOLUNTARY EASEMENTS Constituted by the will of the parties

or of a testator. The owner possessing capacity to

encumber property may constitute voluntary servitude. If there are various owners, ALL must consent; but consent once given is not revocable

Voluntary easements are established in favor of:1. predial servitudes:

a. for the owner of the dominant estate

b. for any other person having any juridical relation with the dominant estate, if the owner ratifies it.

2. personal servitudes: for anyone capacitated to accept.

NUISANCE Any act, omission, establishment,

business or condition of property or anything else which: (ISAHO)1. I njures/endangers the health or

safety of others;2. S hocks, defies or disregards

decency or morality;3. A nnoys or offends the senses;4. H inders or impairs the use of

property; or5. O bstructs or interferes with the

free passage to any public highway or street, or body of water.

Classes:1. Per se – nuisance at all times and

under all circumstances regardless of location and surrounding.

2. Per accidens – nuisance by reason of circumstances, location, or surroundings.

3. Public – affects the community or a considerable number of

persons.4. Private – affects only a person or

a small number of persons. Doctrine of Attractive Nuisance: One who maintains on his premises

dangerous instrumentalities or appliances of a character likely to attract children in play and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises.

Remedies against public nuisance: (PCE)

1. P rosecution under the RPC or local ordinance

2. C ivil Action3. E xtrajudicial Abatement

Remedies against private nuisance: (CE)

1. C ivil Action2. E xtrajudicial Abatement

Extrajudicial Abatement Requisites:

1. nuisance must be specially injurious to the person affected;

2. no breach of peace or unnecessary injury must be committed;

3. prior demand;4. prior demand has been rejected;5. approval by district health officer

and assistance of local police; and

6. value of destruction does not exceed P3,000.

THEORY OF MODE AND TITLE

MODE is the specific cause which gives rise to them, as the result of the presence of a special condition of things, of the aptitude and intent of persons, and of compliance with the conditions established by law. This is the proximate cause of the acquisition.

TITLE is the juridical justification for the acquisition or a transfer of






ownership or other real right. This is the remote cause of the acquisition.

DIFFERENT MODES (and TITLES) of ACQUIRING OWNERSHIP

Modes of acquiring ownership

Titles of acquiring ownership

A. Original Modes1. Occupation 1. Condition of

being without known owner

2. Work which includes Intellectual creation

2. Creation, discovery or invention

B. Derivative modes3. Law 3. Existence of

required conditions4. Tradition 4. Contract of the

parties5. Donation 5. Contract of the

parties6. Prescription 6. Possession in

the concept of owner

7. Succession 7. Death

OCCUPATION a mode of acquiring ownership by the

seizure of things corporeal which have no owner, with the intention of acquiring them, and according the rules laid down by law.

Requisites:1. there must be seizure of a thing2. the thing seized must be

corporeal personal property3. the thing must be susceptible of

appropriation by nature4. the thing must be without an

owner5. there must be an intention to

appropriate

Specific instances:1. hunting and fishing2. finding of movables which do not

have an owner3. finding of abandoned movables

4. finding of hidden treasure

5. catching of swarm of bees that has escaped from its owner, under certain conditions

6. catching of domesticated animals that have escaped from their owners, under certain conditions

7. catching of pigeons without fraud or artifice

8. transfer of fish to another breeding place without fraud or artifice

TRADITION/DELIVERY a mode of acquiring ownership as a

consequence of certain contracts, by virtue of which, the object is placed in the control and possession of the transferee, actually or constructively.

Kinds:1. Real Tradition - actual delivery2. Constructive Tradition

a. traditio symbolica – parties make use of a token or symbol to represent the thing delivered

b. traditio longa manu – by mere consent of the parties if the thing sold cannot be transferred to the possession of the vendee at the time of the sale

c. traditio brevi manu – when the vendee already has possession of the thing sold by virtue of another title

d. traditio constitutum possessorium – when the vendor continues in possession of the thing sold not as owner but in some other capacity

3. Quasi-tradition – exercise of the right of the grantee with the consent of the grantor

4. Tradicion por ministerio de la ley – delivery by operation of law

6. Tradition by public instrument



Requisites:1. right transmitted should have

previously existed in the patrimony of the grantor

2. transmission should be by just title

3. grantor and grantee should have intention and capacity to transmit and acquire

4. transmission should be manifested by some act which should be physical, symbolical or legal

DONATION an act of liberality whereby a person

disposes gratuitously of a thing or right in favor of another who accepts it

Requisites: CIDA1. donor must have capacity to

make the donation2. he must have donative intent

(animus donandi)3. there must be delivery4. donee must accept or consent to

the donation

Essential features/elements of a true donation:a) Alienation of property by the

donor during his lifetime, which is accepted

b) Irrevocability by the donorc) Intention to benefit the donee

(animus donandi)d) Consequent impoverishment of

the donor (diminution of his assets)

Classification:1. As to effectivity:

a. inter vivosb. mortis causac. propter nuptias

2. As to perfection/extinguishment:a. pureb. with a conditionc. with a term

3. As to consideration:a. simple - gratuitousb. remuneratory or compensatory –

made on account of donee’s

meritsc. modal – imposes upon the donee

a burden which is less than the value of the thing donated

Donation Inter Vivos

Donation Mortis Causa

1. Takes effect independently of the donor’s death

Takes effect upon the death of the donor

2. Title conveyed to the donee before the donor’s death

Title conveyed upon donor’s death

3. Valid if donor survives donee

Void if donor survives donee

4. Generally irrevo-cable during donor’s lifetime

Always revocable

5. Must comply with the formalities required by Arts. 748 and 749 of the Code

Must comply with the formalities required by law for the executionOf wills

Donations prohibited by law:1. Made by persons guilty of adultery or

concubinage at the time of donation;2. Made between persons found guilty

of the same criminal offense in consideration thereof;

3. Made to a public officer or his/her spouse, descendants or ascendants in consideration of his/her office;

4. Made to the priest who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

5. Made to relatives of such priest, etc. within the 4th degree, or to the church to which such priest belongs;

6. Made by a ward to the guardian before the approval of accounts;

7. Made to an attesting witness to the execution of donation, if there is any, or to the spouse, parents, or children, or anyone claiming under them.

8. Made to a physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness;

9. Made by individuals, associations or corporations not permitted by law to make donations; and

10. Made by spouses to each other during the marriage or to persons of






whom the other spouse is a presumptive heir.

Forms of donations:1. Donations of movable property:

a. With simultaneous delivery of property donated:

i. it may be oral/written – P5,000 or less;

ii. if value exceeds P5,000 – written in public or private document

b. Without simultaneous delivery: the donation and acceptance

must be written in a public or private instrument, regardless of value

2. Donation of immovable property:a. must be in a public instrument

specifying the property donated and the burdens assumed by donee, regardless of value

b. acceptance must be either:i. in the same instrument; orii. in another public instrument,

notified to the donor in authentic form, and noted in both deeds

NOTE: Expression of gratitude to the donor without express acceptance was held a sufficient acceptance (Cuevas vs Cuevas)

LIMITATIONS ON DONATION OF PROPERTY

1. Future property cannot be donated.

2. Present property that can be donated:

a) if the donor has forced heirs: he cannot give or receive by donation more than he can give of receive by will

b) if the donor has no forced heirs: donation may include all present property provided he reserves in full ownership or in usufruct:1) the amount necessary to

support him, and2) those relatives entitled to

support from him3) property sufficient to pay the

donor’s debt contracted prior to the donation.

3. Donation should not prejudice creditors

4. Donee must reserve sufficient means for his support and for his relatives which are entitled to be supported by him.

EFFECTS OF DONATION1. donee may demand the delivery of

the thing donated2. donee is subrogated to the rights of

the donor in the property3. in donations propter nuptias, the

donor must release the property from encumbrances, except servitudes

4. donor’s warranty exists ifa. expressedb. donation is propter nuptiasc. donation is onerousd. donor is in bad faith

5. when the donation is made to several donees jointly, they are entitled to equal portions, without accretion, unless the contrary is stipulated

Payment of the donor’s debt by the donee1. If there is express stipulation: the

donee is to pay only debts contracted before the donation, if not otherwise specified; but the donee answers only up to the value of the property donated, if no stipulation is made to the contrary

2. If there is no stipulation: the donee is answerable for the debts of the donor only in case of fraud against creditors.

ACTS OF INGRATITUDE1. If the donee should commit some

offense against the person, honor or property of the donor, or of his wife or children under his parental authority

2. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the donee himself, his wife or children under his authority

3. Refusal to support the donor

PRESCRIPTION Kinds:



1. Acquisitive prescription - one acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law.a. Ordinary acquisitive prescription:

requires possession of things in good faith and with just title for the time fixed by law

b. Extraordinary acquisitive prescription: acquisition of ownership and other real rights without need of title or of good faith or any other condition

Requisites:1) capacity to acquire by

prescription2) a thing capable of acquisition by

prescription3) possession of thing under certain

conditions4) lapse of time provided by law

2. Extinctive Prescription – rights and actions are lost through the lapse of time in the manner and under the conditions laid down by law.

Acquisitive prescription

Extinctive prescription

1. relationship between the occupant and the land in terms of possession is capable of producing legal consequences; it is the possessor who is the actor

1. one does not look to the act of the possessor but to the neglect of the owner

2. requires possession by a claimant who is not the owner

2. requires inaction of the owner or neglect of one with a right to bring his action

3. applicable to ownership and other real rights

3. applies to all kinds of rights, whether real or personal

4. vests ownership or other real rights in the occupant

4. produces the extinction of rights or bars a right of action

5. results in the acquisition of ownership or other real rights in a person as well as the loss of said

5. results in the loss of a real or personal right, or bars the cause of action to enforce said right

ownership or real rights in another6. can be proven under the general issue without its being affirmatively pleaded

6. should be affirmatively pleaded and proved to bar the action or claim of the adverse party

Period of PrescriptionMovables Immovables

1. Good Faith4 years 10 years

2. Bad Faith8 years 30 years

Rules on Computation of Period:1. The present possessor may complete

the period necessary for prescription by tacking his possession to that of his grantor or predecessor

2. It is presumed that the present possessor who was also the possessor at a previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary

3. The first day shall be excluded and the last day included

Persons Against Whom Prescription runs:1. Minors and other incapacitated

persons who have parents, guardians or other legal representatives

2. Absentees who have administrators 3. Persons living abroad who have

managers or administrators4. Juridical persons, except the state

and its subdivision

Persons against whom prescription does NOT run:1. Between husband and wife, even

though there be separation of property agreed upon in the marriage settlements or by judicial decree.

2. Between parents and children, during the minority or insanity of the latter

3. Between guardian and ward during the continuance of the guardianship

Prescriptive period

Actions Prescriptive period Actions






a) Imprescriptible to declare an inexistent or void contract to quiet title to demand a right of way to bring an action for abatement of public nuisance to demand partition in co-ownership to enforce a trust probate of a will to recover possession of a registered land under the Land Registration Act by the registered owner

g) 4 YEARS action to revoke donations due to non-compliance of conditions action to rescind partition of deceased’s estate on account of lesion action to claim rescission of contracts annulment of contracts for vice of consent actions upon a quasi-delict action to revoke or reduce donations based on birth, appearance or adoption of a child actions upon an injury to the rights of the plaintiff (not arising from contract)

b) 30 YEARS real actions over immovables (but not foreclosure) without prejudice to the acquisition of ownership or real rights by acquisitive prescription

h) 3 YEARS actions under the eight hour labor law actions to recover losses in gamblingmoney claims as a consequence of employer-employee relationship action to impugn legitimacy of a child if the husband or his heirs reside abroad

c) 10 YEARS actions upon a written contract actions upon an obligation created by law actions upon a judgment from the time judgment becomes final actions among co-heirs to enforce warranty against eviction in partition Mortgage action

i) 2 YEARS action to impugn legitimacy of a child if the husband or his heirs are not residing in the city or municipality of birth



d) 8 YEARS action to recover movables without prejudice to acquisition of title for a shorter period or to the possessors title under Arts. 559, 1505 and 1133

j) 1 YEAR action to impugn legitimacy of a child if the husband or his heirs are residing in the city or municipality of birth forcible entry and unlawful detainer Defamation Revocation of donation on the ground of ingratitude Rescission or for damages if immovable is sold with an apparent burdens or servitude

action for warranty of solvency in assignment of credits actions for loss or damage to goods under the COGSA

e) 6 YEARS actions upon an oral (verbal) contract actions upon a quasi-contract

k) 6 MONTHS actions for warranty against hidden defects or encumbrances over the thing sold






f) 5 YEARS action for annulment of marriages (except on the ground of insanity) and for legal separation counted from the occurrence of the cause actions against the co-heirs for warranty of solvency the debtor in credits assigned in partition action for the declaration of the incapacity of an heir (devisee or legatee) to succeed) all other actions whose periods are not fixed by law, counted from the time the right of action accrues

l) 40 DAYS redhibitory action based on faults or defects of animals


property beda

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