Paternity and Filiations

Paternity and Filiations are two concepts that go together. However, they do not mean the same thing. Paternity refers to the relation of parents with respect to their children. Filiations refer to the relation of children with respect to their parents. It is under the concept of filiations where one speaks of legitimate, illegitimate and legitimated children. There is no such thing as legitimate and illegitimate parents.

2 types of filiations:1. filiations by nature – there is a blood relation. Filiations by nature may be

legitimate and illegitimate.2. filiations by fiction of law – there may be no blood relation. Filiations by

fiction of law are created by adoption.

Types of Children:1. Legitimate children

a.) children who are conceived or born during a valid marriageb.) children who are born out of artificial insemination

Requisites:i. donor may be the husband, a third party, or a mixture of both

ii. consent of both husband and wife must be in writingiii. consent must be given before the birth of the child

If the requisites for artificial insemination are not complied with, the child shall be considered as illegitimate, notwithstanding the fact that the child was conceived or born during the subsistence of a valid marriage.

For purposes of determining filiations, the time when conception occurred would matter when the child is posthumous. To determine the time of conception, count 300 days backwards from the date of birth, and then count 3 months forward.

For marriages which were annulled, the children shall be considered legitimate if they were conceived or born before the judicial decree of annulment was issued.

For void marriages, the general rule is that the children born thereof are considered as illegitimate. The exceptions are when the marriage is declared null and void on the ground of psychological incapacity under Article 36, or for failure to liquidate the conjugal properties and distribute the presumptive legitimes to the children under Article 52.

2. Illegitimate children are those conceived and born outside of the marriage.

3. Legitimated children, like illegitimate children, are conceived and born outside of the marriage. At the time of the conception of the child, the parents were not disqualified by any impediment to marry each other. The marriage of the parents is the act which legitimizes the status of the child, and such retroacts to their date of birth. Upon legitimation, entries in the birth certificate shall be changed to reflect the legitimation of the child.

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Rules governing the status of a child if the mother contracted a subsequent marriage:1. If the child is born within 180 days from the celebration of the second

marriage, and within 300 days from the termination of the first marriage – the child is that of the first marriage

2. If the child is born after 180 from the second marriage – the child is that of the second marriage

The rules are subject to proof to the contrary.

Termination of the first marriage – refers to termination by:1. death2. nullity – but a different rule governs, since the child is considered illegitimate.

Article 168 covers legitimate children of either the first or second marriage.3. annulment

Actions involving filiations:1. to impugn legitimate status

applies when the child is born legitimate (conceived or born during a valid marriage)

does not apply if the child is born illegitimate (conceived and born outside a valid marriage)

there is no such thing as an action to impugn an illegitimate status

Who can file an action to impugn the legitimate status of the child and what are the periods for filing the action?

As a general rule, only the husband can file the action to impugn the legitimate status of a child. The prescriptive periods to file action to impugn legitimate status:

a.) if residing in the municipality or city where the child was born – 1 year from knowledge of birth or recording

b.) if residing in the Philippines – 2 years from knowledge of birth or recordingc.) if residing abroad – 3 years from knowledge of birth or recordingd.) for concealed or unknown birth – 1, 2, or 3 years counted from the knowledge

of the birth of the child or from its recording, whichever is earlierIn actions to impugn filiation, the recording of the birth does not give rise to constructive knowledge on the part of the father. There must be actual knowledge of the birth or recording before the periods start to run.

An exception to the general rule would be the heirs of the husband (other legitimate children, parents, brothers and sisters), who may file the action in the following cases:

a.) husband dies before the expiration of the period – the heirs have the remaining period to file the action

b.) posthumous birth of the child – 1, 2, or 3 years from the knowledge of the birth or recording

c.) husband dies and the heirs continue the action filed by the husband

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The wife cannot bring an action to impugn the legitimacy of the child, even if she is sentenced as an adulteress. An exception would be in case of artificial insemination where the consent of the wife was obtained through fraud, violence, mistake, intimidation or undue influence.

A child who is born legitimate cannot bring an action to impugn his legitimacy (Liyao v. Liyao). When a child is born to a married woman, the child is deemed to be a legitimate child of the marriage. The child cannot claim illegitimate status as against his or her biological father without impugning his legitimate status, for a child cannot have two status under the law. The only person who can impugn the legitimate status of the child is the husband of the child’s mother.

Grounds to impugn legitimacy:a.) physical impossibility of access

does not refer to actual contact, only to physical impossibility of access

if there is a showing that access was possible, the action will fail

the enumeration of the Family Code is not exclusive examples are:

- impotency- living separately- serious illness

b.) biological or scientific reasons Blood Grouping Test – conclusive as to non-paternity D. N. A. Test – acceptance of the test has not yet been

ruled upon by the Supreme Courtc.) mistake, fraud, violence, intimidation, or undue influence in obtaining

consent for artificial insemination

2. to claim legitimate or illegitimate filiation

When can an action to claim legitimate filiation be brought?It can be brought only when a child is born without any status as when:a.) the child is born after 300 days following the termination of the marriage of

his parentsb.) the child is born following the celebration of the second marriage of the

parentsOther than the two scenarios, there is no other way of applying the provisions on actions to claim legitimate filiation.

Who can bring the action to claim legitimacy or illegitimacy?Legitimacy

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General Rule: the child – during his lifetime, regardless of whether the father is still alive or not.

Purpose: succession and surname Exception: the heirs of the child – in case the child dies during minority,

or dies during insanity, within five years counted from the death of the child.

Illegitimacy The child – (1) during his lifetime, if he is presenting primary evidence;

(2) during the lifetime of the child and his parents, if he is presenting secondary evidence.

There is no exception to this rule. The heirs of the child cannot bring the action. The reference to Article 173 is only as to the period to bring the action.

Under the Civil Code, minors have until four years from attaining the age of majority to bring an action to claim illegitimate status. The rule applies when the child was born during the effectivity of the Civil Code and was still a minor upon the effectivity of the Family Code. (Bernabe v. Alejo)

Evidence to prove filiation, whether legitimate or illegitimate status1. primary evidence - record of birth appearing in the civil register, a final judgment, an admission of legitimate filiation in a public instrument or a private handwritten instrument and signed by the parent concerned

Record of birth appears in the civil registry only prima facie evidence of filiation, not conclusive evidence of

filiation in the absence of contrary evidence, it becomes conclusive

Birth certificate primary evidence of record of birth and of filiation of the child public record

Final judgment deals with filiation of the child occurs when the filiation of the child is dealt with as a collateral issue

in the court proceeding the principle of res judicata applies filiation can be collaterally attacked

Admission of the parents in a public instrument or in a private handwritten instrument similar to attested or holographic wills

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the signature of the father in the birth certificate is deemed an admission of filiation

Baptismal certificate evidence of the administration of the sacrament of baptism not considered as evidence of birth not in the same degree of evidence as birth certificates

2. Secondary evidence – open and continuous possession of the status of a legitimate or illegitimate child, or other means allowed by the Rules of Court and special laws.

the plaintiff must show to court why primary evidence cannot be presented

Open and continuous possession of the status of a child, whether legitimate or illegitimate

open means it must not be clandestine in character continuous means consistency; there must be no denial in any point in

time spontaneity means it must come directly from the alleged father

Pictures alone do not establish filiation. Such evidence must be supported by other pieces of evidence.

Other means allowed by the Rules of Court and Special lawsRules of Court:

a. acts and declarations involving pedigree from somebody already dead or out of the country present something which the person, who is unable to testify,

did while still alive or in the country which would relate him to the person filing the action

b. family traditionc. common reputation – considered as the weakest of the types of

evidence

Impugning legitimation of a childParties: those who are prejudiced in their rights (this involves only the heirs, and

excludes economic creditors)Time: five years from accrual of the cause of action – from the time of the death

of the parents.Grounds:

a. not a natural childb. the child is not a child of both the husband and the wifec. invalidity of the marriage

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If the marriage is void, legitimation is deemed not completed. In this case, any can question the validity of the marriage if he has property rights involved.

Adoption

Adoption a judicial process that grants legitimate status to a child who may or may

not be related to the person adopting the process is for the benefit of the child, not for the benefit of the parents grants reciprocal rights to the parents and child the adopters must be financially capacitated to support the adoptee and his

children, and must be fit

There are two laws which govern adoption, the Domestic Adoption Act, and the Inter-Country Adoption Act.

Qualifications of the adopter:Domestic Adoption Act Inter-Country Adoption Act

Residency: Filipino citizen Resident Alien (resident for 3 years)Except:1. alien is the spouse of a Filipino citizen

who seeks to jointly adopt with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse

2. former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity

3. one who seeks to adopt the legitimate son or daughter of his or her Filipino spouse

Residency: Non-resident alien Filipino citizen permanently residing in a foreign country

16 years older than the adoptee, unless the adopter is the biological parent of the adoptee, or the spouse of the adoptee’s parent

16 years older than the adoptee, unless the adopter is the biological parent of the adoptee, or the spouse of the adoptee’s parent

No conviction of a crime involving moral turpitude

No conviction of a crime involving moral turpitude

Financially, emotionally, psychologically capable of caring for the child

Financially, emotionally, psychologically capable of caring for the child

Good moral character Good moral characterAt least 18 years of age At least 27 years of ageFor aliens – country of his own nationality confers reciprocal rights to the adoptee

Diplomatic relations with the Philippines

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Under the law, preference is given to domestic adoption. If no one will adopt the child under the Domestic Adoption Act, he will then be matched for adoption under the Inter-Country Adoption Act. In both the Domestic and Inter-Country Adoption Act, the adoptee is a Filipino child.

For Inter-Country Adoption Act, the adopters cannot identify a specific child to be adopted, except in the case of adoption of relatives. However, the adopters can provide for a general criterion such as male or female, 2 years of age, etc.

In Domestic Adoption Act, it is the prospective adopters that institute the adoption proceedings. In Inter-Country Adoption Act, it is the child placement agency or the Department of Social Welfare and Development that institutes the judicial proceedings for inter-country adoption.

Procedure for institution of judicial proceedings for adoption: present qualification for adoption trial custody period – period of assimilation, whether the child will fit in a

certain family and environment. For inter-country adoption, the child shall be sent to the foreign country.

Can the parents by nature stop an adoption proceeding?Yes. If the biological parents can still perform their obligations, they will be

protected and adoption will not be considered.

Consent:a. biological parents

if the child is legitimate – consent of both parentsif the child is illegitimate – consent of both parents, if known

b. the child adopted – if 10 years old or overc. legitimate children of the adopter – if 10 years old or overd. illegitimate children of the adopter – if living with the

adopter, and 10 years old or overe. spouses of both adopter and adoptee

A married person should jointly adopt with his or her spouse, except:a. the person adopts the legitimate child of his

spouseb. the person adopts his illegitimate child to

improve the child’s statusc. the spouses are legally separated from each

other

Is it possible to adopt a married person?Generally, no. The law requires that the prospective adoptee is below 18

(domestic adoption) or 15 (inter-country adoption) years of age. The exceptions are:

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a. the person is of legal age and, prior to adoption, said person has been considered and treated by the adopters as his or her own child

b. adoption of one’s own illegitimate childc. adoption of the legitimate child of one’s spouse

Rules for rescission of adoption:a. adoption is artificial and can be rescinded even if the adoptee is no longer a

childb. only the adoptee is allowed to rescind the adoptionc. the adopter cannot rescind the adoption but can only disinherit the adoptee

Grounds to rescind adoption:1. repeated physical and verbal maltreatment by the adopter(s) despite having

undergone counseling2. attempt on the life of the adoptee3. sexual assault or violence4. abandonment and failure to comply with parental obligations

Parental Authority

Parental authority sum total of all the rights and obligations of parents over their

unemancipated children subsists during the minority of the child covers the following:

a. authority to discipline, to grant permission to go outb. obligation for obedience and respectc. custodyd. supervision, guidance, provide for an environment conducive to

growing upe. responsibility and liability for damages caused by minor children

under parental authority – defense is the exercise of due diligence

Persons involved:1. legitimate or legitmated children – father and mother (joint; act in unison)

father’s decision prevails in case of conflict mother cannot go to court to reverse the father’s decision unless there

is a legal ground to do so2. illegitimate children – mother3. adopted children – adopter4. abandoned children or foundlings - orphanages

During the trial custody period, the adopting parents have temporary parental authority over the prospective adoptee

Substitute parental authority

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in default of parents (both are dead, absentees, or courts have suspended or deprived parental authority)

order:a. grandparents – no preference in the linesb. oldest brother or sister, at least 21 years of age,

inless unfit or disqualifiedc. actual custodian, over 21 years of age, unless

unfit or disqualified – can be the child’s yayaCourt proceedings are unnecessary, unless there is a conflict in the exercise of substitute parental authority.

Special parental authority concurrent with parental authority persons covered:

a. schools, its administrators and teachersb. institutions engaged in child case

special parental authority is only with respect to minors special parental authority extends to activities in or out of school premises principally and solidarily liable for damages caused by the minors under

their special parental authority defense of exercise of due diligence may be raised liability of the school cannot be waived by the parents of the minor in default of the administrators, teachers and the school, the parents are

subsidiarily liable

Parental authority over property no substitute or special authority – subject to guardianship proceedings covers legal guardianship over properties while the children are still

minors can exercise only acts of administration, not ownership if the property is below P50,000 (based on market value or annual

income), can exercise acts of administration if the property is P50,000 or above, must ask for court appointment in a

summary proceeding and post a bond not less than 10% of the value of the property or annual income

Use of property owned by minors:1. principal

exclusively for the support and the education of the child who is the owner

cannot be used for family expenses2. fruits

primarily for the support of the child secondarily, if there are still earnings, for the collective needs of the

family

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If the children are asked to manage the family business, they are to be paid with:1. income equal to what would be paid if a stranger managed the business; or2. the entire proceeds that the principal property earns, which will not be

deducted from their legitime

Court appointment is necessary if one seeks to be a guardian over the property of minors. The law does not set any preference as to who should be appointed guardian over the property of minors.

Once a person reaches the age of 18 years, parental authority ceases.

Support

Support not only between parents and children subsists even after minority

2 factors to consider in giving support:1. resources of the giver2. needs of the recipient

There must be a balance of the two factors.

Legal support (mandatory) given in accordance with the financial resources of the family and the

needs of the recipient covers:

f. sustenance – food and sustenance for livingg. dwellingh. medical attendancei. education – those necessary for professional upliftment or vocationalj. transportationk. clothing

Persons obliged to support each other:1. spouses2. legitimate ascendants and descendants3. parents and their legitimate children, and the legitimate and illegitimate

children of the latter4. parents and their illegitimate children, and the legitimate and illegitimate

children of the latter5. legitimate brothers and sisters, whether full or half blood6. illegitimate brothers and sisters, whether full or half blood

In the enumeration above, spouses take priority in receiving support, except in case of conflict between a spouse and a child under parental authority, in which case the child will be given preference.

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For illegitimate brothers and sisters, support will be required of them. The exception is when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.

The amount of support received does not vary. What differs is the right to receive support in case of illegitimate brothers or sisters. So if:

a. illegitimate brothers or sisters are minors – always entitled to support in all circumstances

b. illegitimate brothers or sisters are of age – not entitled to support if the need for support is through his or her own fault

Right of spouses to receive support:a. in case of annulment or nullity – no supportb. legal separation – guilty spouse may be required by the court to support the

innocent spousec. support pendente lite – shall be taken from the absolute or conjugal property,

and may be denied in accordance with the Rules of Court

If an action for support is filed against the spouse, the spouse must give support, unless he or she raises as a defense:

a. abandonment or separation de factob. unjustified refusal to live in the conjugal dwelling

Infidelity is not a defense to deny support to a spouse. In such a case, the aggrieved spouse should file a case for legal separation and ask the court to deny support to the erring spouse.

Support may be given by:a. giving allowanceb. maintaining in the dwelling the person entitled to support, unless there is a

legal or moral obstacle to do so

Priority of support:1. spouse – except if concurrent with children under parental authority2. descendants of the nearest degree3. ascendants of the nearest degree4. brothers and sisters

If there are several people who are obliged to give support, support may be demandable from each of them, and they shall give support pro rata to their income.

The legal obligation to give support is not subject to attachment and execution. The contractual obligation to give support, to the extent that it exceeds the legal obligation, is subject to attachment and execution. Support under a will is also subject to attachment and execution.

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The amount of legal support is relative. It may be increased or decreased, depending on the income of the giver and the needs of the recipient. The amount of contractual support is not relative. It may not be increased or decreased. The obligor must comply with his obligation under the contract, except if he can invoke the principle of rebus sic stantibus.

Emancipation

Emancipation occurs upon reaching the age of 18 years capacitated for all acts of life

Retroactivity of the Family CodeRetroactivity

the Family Code expressly provides for retroactive effect exception: if there are vested rights (rights concurrently enjoyed by the

persons), the Family Code will not retroact

Examples of non-retroactivity of provisions of the Family Codea. constitution of the Family homesb. actions for recognition of illegitimate childrenc. adoption commenced before the Family Code

Care and Education of Children

The Civil Code provisions on Care and Education of Children have been repealed by Section 3 of Presidential Decree No. 603, or the Child and Youth Welfare Code.

Funerals Corpses

the corpse is not considered as a property the corpse is sacred, and is not to be sold nor to be experimented

Who has the right to make funeral arrangements?The legal family is preferred.

Surname

The State has a legal interest in the name of a person for the following reasons:1. to prevent possibilities of confusion in identity2. to prevent possibilities that it will be used to conceal the commission of

crimes

The legal name of a person appears in the birth certificate. Whatever is the legal name of a person is carried until his death, unless there is a court order authorizing its change.

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Rule 103 of the Rules of Court on Change of Name provides the following grounds for the change thereof:

1. ridiculous name, causes laughter or embarrassment2. extremely difficult to pronounce or to spell3. legal causes for change (child is adopted, legitimated)

For legitimation, there is a need to get a court order for the change of surname. For adoption, the court decrees an order for a change of name. In both cases, only a change of surname is allowed. The parties must show cause if there is a need to change one’s name.

Use of surnames for children:1. legitimate children

use the surname of the father (obligation) use the surname of the mother as middle name (optional) some people are allowed to use the surname of their mother because

they have been using it since childhood, and to change it would create more confusion

2. illegitimate children use the surname of the mother, regardless of whether the child is

recognized, acknowledged, or has filed an action for compulsory recognition as such

3. adopted use the surname of the adopter in case of joint adoption, use the surname of the husband

Use of surname for married women – optional; not required to use the surname of the husband

1. maiden name and surname2. maiden name and surname plus surname of the husband3. maiden name plus surname of the husband4. full name of the husband plus attach the prefix “Mrs.”

Once the option has been exercised, one cannot change it thereafter since it will cause confusion.

Use of surname for women in case of termination of marriage by annulment or declaration of nullity:

the woman must revert to her maiden surname if she is the guilty spouse if she is the innocent spouse, she can still maintain the surname of her

husband, except:a. if there is a court order providing otherwise, orb. the wife or the husband remarries

Use of surname for women in case of termination of marriage by death:1. the woman can continue using the husband’s surname;2. the woman can revert to her maiden surname; or3. the woman can use “Vda. De”.

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Use of surnames for women in case of divorce authorized by the Philippines during the Japanese occupation:

1. use maiden surname; or2. use husband’s surname. (Tolentino v. CA)

In case of identity of names and surnames: use identifying names to prevent confusion “Jr.” used for sons only for grandsons and other direct male descendants:

a. add a middle name or mother’s surnameb. add Roman numerals

Screen names can be used without need of court approval, as long as it is not for illegal purposes. The law requires the registration of aliases, not screen names.

A person can file an action to prevent the use of a screen name if the use thereof is prejudicial to him.

Absence

Absence occurs where it is not known whether a person is still alive or dead.

Stages:1st stage

provisional absence no administrator appointed yet legal representatives may be appointed appointment of legal representatives ad hoc – for 1 specific transaction as

the need arises

2nd stage declaration of absence 2 years – if no administrator, agent, or power of attorney was left 5 years – if an administrator, agent, or power of attorney was left the appointment of the administrator is for the management of the assets

3rd stage declaration of “presumptive death” court proceeding is not necessary, except for remarriage

Ordinary absence ordinarily disappears and there is no danger to absentee’s life presumed dead from the time the period ends general rule – 7 years for all purposes except succession 10 years for purposes of succession 5 years if the absentee is over 75 years of age

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4 years for purposes of remarriage

Extraordinary absence 4 years in the following instances:

a. ship is lost or airplane is missing, and body is not foundb. person is in the armed forces, and he took part in the warc. in other circumstances where there is danger to life

2 years for purposes of remarriage presumed dead from the time of disappearance

Civil Registry

The Civil Registry is the repository of all information from the time of birth until the time of death.

Entries in the civil registry or the birth certificate are prima facie evidence of what has been recorded. Change of entries in birth certificates shall be made in a summary proceeding, if it involves non-substantial changes, and in an adversarial proceeding, if it involves substantial changes.

Property

Property there is no definition of Property under the Civil Code the Civil Code merely enumerates the kinds of immovable and movable

property covers all things which are or may be the object of appropriation

Classification:1. immovable2. movable

Reasons for the classification1. prescription

a. movable – 4 years if good faith; 8 years if bad faithb. immovable – 10 years if good faith; 30 years if bad faith

2. documentation requirements

Types of immovable property under Article 415 (exclusive enumeration)1. by nature

paragraphs 1, 82. by incorporation

paragraphs 2, 3, 4, 5, 6 the property is permanently adhered to the soil or another immovable,

such that it cannot be removed without destroying the immovable to which it is attached

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ownership of the land to which the structure is attached in immaterial in classifying the property as immovable

can treat land and building differently if both are owned by different persons

3. by destination paragraphs 4, 5, 6, 7, 9 essentially movable but are immovable because of the purpose to

which they are attached determine:a. the specific purpose for which the property is placedb. the ownership of the building or tenement and the property attached

thereto

Tom placed several machineries inside his garments factory. If the machinery is cemented to the floor, is it an immovable by incorporation or by destination?

It is an immovable by incorporation because it cannot be removed without destroying the immovable to which it is attached.What if Tom placed the machinery inside the factory and merely bolted it to the floor? Is it an immovable by incorporation or an immovable by destination?

It is an immovable by destination.

Sewing machines placed to meet the needs of the garment industry by the owner of the tenement are immovable property by destination.

4. by law/analogy – paragraph 10

Ships are normally considered as movable properties. If the ship does not move and the owner intends not to move it, it thereby becomes an immovable property.

Growing crops are immovable properties by incorporation, if it is attached to the land or forms an integral part of an immovable. If it is harvested or cut, it becomes chattel. For purposes of the chattel mortgage law, growing crops are considered chattel.

Types of movable property1. test of exclusion (not found under Article 415)2. real property which by any special provision of law is considered as

personalty3. forces of nature brought under the control of man, like electricity4. all things which can be transported from place to place without impairment of

real property to which they are attached5. by analogy – examples of which are obligations and actions which have for

their object movabels or demandable sums

Differentiate fungible from consumable.

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Fungible property depends upon the intention of the owner. If the property cannot be replaced, it is not fungible. Consumable property depends on the nature of the property. If the property cannot be used without consuming it, it is not consumable.

Classification of property according to ownership1. public dominion

owned by the Government types of public dominion:

a. public use – indiscriminately used by the people or constituents who inhabit the place

b. public service – used by the State or political subdivision to render public service; cannot be used without permission

c. patrimonial property – owned by the State in its private character

2. private ownership owned by private individuals or corporations

Reclaimed land is owned by the government under the Regalian doctrine. It is considered as properties for public service, as the government exerts effort to reclaim the lands. Reclaimed land cannot be used without permission. It cannot be sold under the law. It can only be leased through public bidding.

To sell properties for public service, a legislative act is required to sell it to private individuals. Properties for public service can be sold to political subdivisions. However, there must be a declaration that property for public service is no longer required for public service before it may be sold. The Executive makes such declaration.

Ownership

Ownership a juridical relation by virtue of which a thing pertaining to one person

is completely subjected to his will in everything not prohibited by public law or the concurrence with the rights of others

in relation to a specific property right to use or possess certain property which may be appropriated

Rights incidental to ownership1. right to enjoy

a. right to possessb. right to usec. right to abused. right to fruits

2. right to dispose3. right to recover property if unlawfully taken

Right of ownership is not absolute

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1. use property in a manner as not to injure the rights of others2. subject to police power or general welfare clause3. subject to eminent domain4. subject to easements5. may be abated if considered a nuisance

What is the doctrine of incomplete privilege?The doctrine states that the owner of a property cannot prevent a person from

entering into his property to prevent an imminent danger if the threatened damage is greater than the damage to the owner of the property. In such a case, the owner of the property is entitled to receive compensation from the person who benefited from the same.

What is the doctrine of self-help?The doctrine of self-help states that the owner of a property has the right to

exclude any person from the enjoyment and disposal thereof. He may use reasonable means necessary to prevent or repel an actual or threatened unlawful physical invasion or usurpation of his property. The doctrine requires the existence of a threat to one’s property and that the property has not yet been taken. In other words, the aggression is still taking place.

Once the aggression has been completed and the property has already been taken, the doctrine of self-help ceases to apply. In such a case, court relief must be sought.

With possession, ownership is presumed. To claim ownership, court proceeding is required to destroy the presumption of ownership arising from possession by presenting evidence.

If one is in possession, one is presumed to be the owner. He shall not be required to prove his ownership over the property.

Ownership of land includes (1) surface, (2) above the surface, and (3) beneath the surface. A person owns the airspace above his property, subject to the reasonable requirements of aerial navigation.

Elements of a hidden treasure:1. it must be hidden or unknown2. it must be treasure – money, jewelry, other precious objects, those

which are finished objects3. the lawful owners are unknown

Division of hidden treasure found in one’s propertyHalf will go to the owner of the lot and the other half will go to the finder.

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If the owner or finder is married, his or her share in the hidden treasure will go to the absolute or conjugal property, even if the property where it is found is separate property.

Requisites to be a finder:1. must not be a trespasser (intrusion without authority)2. must have found the treasure by chance (does not exclude cases where there is

a deliberate search for treasure)

If a person is hired to search treasure, he is not considered a finder. The person who hired him is the finder.

Accession

Accession not a mode of ownership incident of ownership must acquire ownership first before the right of accession follows

2 types of accession:1. as to the produce (fruits) – accession discreta

internal comes from the property itself

2. attached to or incorporated (attachments) – accession continua cannot be removed without causing damage to the property may be artificial or natural external

Types of fruits / accession discreta1. natural

spontaneous products of the soil the young of animals (need not be spontaneous) other products of animals

2. industrial produced by lands through cultivation or labor other products of the land do not apply here

3. civil synthetic fruits pertain to income, earnings arising from rentals, dividends, use of

property accrue on a daily basis can be pro rated

Who owns the fruits?As a general rule, the owner of the property owns the fruits.

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Instances where a third person is entitled to the fruits1. usufruct2. lease3. builder, planter or sower in good faith4. antichresis

He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation. (Article 443)

If another person legally entitled to the fruits, he must reimburse the person who spent for their production, gathering and preservation.

Che cultivated, harvested, and gathered fruits in Chui’s land in bad faith. Chui got hold of the fruits planted by Che. Is Che entitled to reimbursement?

Yes, if the fruits are already gathered. The basis would be Article 443. In Article 443, there is already a finished product.

No, if the fruits are still pending. The basis would be Article 449. In Article 449, there is no certainty that the fruits may be gathered.

Types of accession continua

For immovables1. building, planting or sowing

building – form of construction planting – plant once, and able to gather or harvest fruits on a

regular basis. Ex. Trees sowing – seasonal crops, planting done on a regular basis

2. natural – by natural forcesa. alluviumb. avulsionc. change in river coursed. formation of islands

For movables1. adjunction or conjunction

a. inclusion (engravement)b. soldadura (attachment)c. tejido (weaving)d. pintura (painting)e. escritura (writing)

2. mixturea. confusion – liquidsb. commixtion – solids

3. specification

Why distinguish planting and sowing?

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In planting, the planter may be required to buy the land. In sowing, the sower may be required to pay rents.

In building, planting or sowing, whatever is built, planted or sown over a land is presumed to be owned by the owner of the land, subject to contrary proof.

Rules governing relationship between Land Owner who is also the Builder, Planter or Sower and the Owner of the Materials

The rules shall govern if accession has occurred. If not, the rules do not apply, and the owners may take what each owns.

Land Owner and Builder, Planter or Sower

Owner of the Materials

Good Faith (preferred right) reimburse the owner of the materials for the value of the materials

Good Faith1. can remove the

materials, provided there is no damage to the immovable property

2. receive payment; if not paid, can institute action for collection, but does not have the right of retention

Bad Faith Good Faith (preferred right)1. can remove the materials, even if it

causes damage to the immovable, plus recover damages

2. demand reimbursement for the value of the materials used, plus recover damages

Good Faith need not pay for the materials used

Bad Faith Loses his materials

Bad Faith consider as good faith (in pari delicto)

Bad Faith consider as good faith (in pari delicto)

Rules governing relationship between Land Owner and Builder, Planter or Sower who is also the Owner of the Materials

Land Owner Builder, Planter, or Sower and Owner of the Materials

Good Faith (preferred right)1. acquire what has been built, planted

or sown; pay indemnity: necessary expenses (actual cost), useful expenses (actual cost or increase in value – plus value), luxurious expenses (if appropriated)

2. compel builder or planter to buy the

Good Faith1. if what is built, planted

or sown is acquired, right to receive payment; if not paid, can exercise right of retention and cannot be made to pay rentals

2. for builder or planter, pay the purchase price (fair market

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land, and sower to pay the rentals; if not paid, can force the removal of improvements

Except: value of the land considerably more than the value of what is built, planted or sown:

a. compel builder or planter to pay rent through a voluntary or forced lease; or

b. acquire what has been built

value of the land); for sower, pay rentals

Good Faith (preferred right)1. acquire what is

built, planted, sown, pay the necessary expenses if the building is still standing or the fruits are still pending, and luxurious expenses if appropriated, and recover damages

2. compel the builder or planter to buy the land or the sower to pay rentals, and recover damages

3. require removal and recover damages

Bad Faith receive payment for necessary expenses; cannot receive payment for useful expenses; can remove luxurious improvements if it can be done so without injury

Bad Faith cannot ask the builder or planter to buy the land or the sower to pay rentals

Good Faith1. can effect removal,

whether there is injury to the property or not, and recover damages

2. ask payment for what is built, planted or sown, and recover damages can ask

payment of necessary and useful expenses

can remove luxurious improvements, whether it will cause damage or injury to the property, if owner does not wish to acquire it

Bad Faith consider as good faith (in pari delicto)

Bad Faith consider as good faith (in pari delicto)

Types of expenses:Necessary – for preservationUseful – adds value to the landLuxurious – for ornamental purpose

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Sarmiento v. AganaEvangelista built a house on a lot, thinking his mother-in-law owned it. Its true

owners sold the lot to Sarmiento. Sarmiento asked Evangelista to remove the house and refused to exercise his option. The CFI ruled Sarmiento should exercise his option. Since Sarmiento did not exercise his option, Evangelista deposited the price of the lot with the court.

The Supreme Court found no grave abuse of discretion on the part of the CFI judge. Evangelista here was a builder in good faith, as he thought he would own the land over which the house was built upon. In such a case, Sarmiento has two options: (1) buy the improvement, or (2) sell the lot to Evangelista. Only when Evangelista cannot buy the lot can Sarmiento exercise the option to have the improvement removed.

Depra v. DumlaoIf the value of the land is considerably more than the value of the building, the

owner has two options:1. acquire the improvements2. ask for the payment of rentals

The Courts should not immediately force the lease of the property. The parties should be allowed to negotiate a voluntary lease. If the parties cannot voluntarily agree to the terms of the lease, the court may fix the term, subject to:

a. the value of the propertyb. fair rentalc. period of possession

rentals charged shall start from the time of occupation lower rate shall be charged when the builder, planter or

sower occupied the land without knowing that he did not own the property

market rate shall be charged when the builder, planter or sower already knew that he didn’t own the property occupied

the period of lease shall be commensurate to that which would allow one to recover his investments

Rules governing relationship between the Land Owner, the Builder, Planter or Sower and the Owner of the Materials

The right of action of the land owner extends only to the builder, planter or sower.The right of action of the owner of the materials extends only to the builder,

planter or sower.The relationship between the land owner and the builder, planter, or sower, and

the owner of the materials and the builder, planter, or sower are separate.

Land Owner Builder, Planter, or Sower Owner of the MaterialsGood Faith

1. acquire what is built, planted or sown

if the

Good Faith1. receive payment

from land owner; if not paid, exercise

Good Faith1. receive payment of

materials from the builder, planter or

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builder, planter, or sower does not pay the owner of the materials, becomes subsidiarily liable to the owner of the materials

2. require builder or planter to buy lot, or sower to pay rentals

right of retention2. builder or planter

buys lot and what is built or planted; pays the owner of the materials

sower; if not paid, can go after the land owner and hold him subsidiarily liable

2. receive payment; if builder or planter cannot pay, cannot go after the land owner to hold him subsidiarily liable

Good Faith no subsidiary liability

Good Faith Bad Faith loses all his materials, and becomes liable to the builder, planter, or sower for damages

Good Faith1. acquire what is built,

planted, or sown2. sell lot to builder or

planter, or ask rentals from sower

3. removalDamages in all three instances

Bad Faith Bad Faith1. receive payment

from the builder, planter, or sower; cannot go after the land owner and hold him subsidiarily liable

2. receive payment from the builder, planter, or sower

3. receiver payment from builder, planter, or sower

Subsidiary liability of the land owner occurs when:1. the owner of the materials is in good faith2. the land owner chooses option number 1 (acquires what is built, planted or

sown)3. builder, planter, or sower must be in good faith

Good faith or bad faith of the land owner is immaterial.

The builder, planter, or sower is principally liable to the owner of the materials (who must be in good faith), regardless if the land owner acquires what is built, planted, or sown.

The owner of the materials can remove what is built, planted, or sown if the builder, planter, or sower acquires the land. If the builder, planter, or sower does not acquire the land, the owner of the materials cannot remove the materials used therein.

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Accession natural1. alluvium

elements:a. gradual deposit of soil – does not happen overnight;

imperceptibleb. along the river banks (includes creeks, lakes, streams)c. due to natural current of the river – not man-made

ownership of the accretion automatically goes to the owner whose estate adjoins the river bank (riparian owner)

does not include deposits in beach (public property), in seas, in esteros (man-made)

must ask for a retitling and resurvey of the property, as the additional land is not covered by the Transfer Certificate of Title immediately

2. Avulsion a known portion of land is transferred to another estate elements:

a. not gradual; drasticb. must be a known portion of land transferred to another estate

The original owner owns the portion of land transferred, provided he removes it within 2 years

If the original owner does not remove it within 2 years, the process of accession sets in, and the owner of the lot where the portion of land attaches owns said portion

If the land has trees, the 2 year period still applies. If the trees are uprooted, the owner thereof has 6 months to claim it.

3. Change in the course of the river Abandoned bed ipso facto belongs to the owners whose lands are

occupied by the new course in proportion to the area lost. The phrase in proportion to the area lost applies if two or more owners are affected by the change in the course of the river. If only one lot owner is affected by the change in the course of the river, he acquires the entire area of the old bed.

The adjoining owners may acquire the old bed by paying the value of the old bed, the value of which shall not exceed the value of the area occupied by the new bed. The option to acquire is with the adjoining owners.

If the river branches itself, leaving a piece of land or a part thereof isolated, the owner of the land retains ownership. The same rule applies if the land is separated from the estate by the current.

4. Formation of islands If formed in the seas, interpret according to the law of the seas. If

formed in the high seas, international law applies If formed in rivers, distinguish:

a. if river is navigable (useful for commerce, vessels may navigate through it) – goes to the State

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b. if river is non-navigable – belongs to the owners of the margins or banks nearest to each of them, or to the owners of both if the island is in the middle, in which case it will be divided longitudinally in half

Accession in movable property

Adjunctions 2 or more movable properties united in such a way that they form a single

object cannot separate the 2 movables can identify the 2 movables the movables belong to 2 different owners ex. Varnish on a wooden table

Determining accessory from principal:1. attachment test (which attaches to what?)

the property which clings to another is the accessory the property to which the other hinges is the principal exception: if the property that attaches is considerably more than the

property to which it attaches to, the owner of the accessory is entitled to segregation, whether it causes injury to the principal or not. The person who pays the segregation is the person who caused the union in the first place.

2. value whatever is more valuable is the principal applied if attachment test fails to determine which is the principal and

which is the accessory3. volume

whichever has the greater volume is the principal applied if both are of equal value exclude intellectual creation, in which case the paintings and sculpture,

writings, printed matters, engravings and lithographs are considered the principals, and the board, metal, stone, canvass, paper, parchment are considered the accessories

Owner of the principal pays for the value of the accessory if the accessory follows the principal.

If one is in bad faith:a. owner of accessory is in bad faith – he loses his property to the principal

and becomes liable for damagesb. if the principal is in bad faith – the owner of the accessory has 2

options:i. ask for indemnification of the value of the accessory and payment

for damages

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ii. ask for removal of the accessory, whether there is injury or not, and payment for damages

Indemnification reimburse the value of the property, which may consist in the

appraised value, or the same property in kind and quality person entitled to indemnification chooses the type of

indemnification to be paid expert appraisers determine the value of the movable

property

Mixture types:

1. commixtion – involves solids2. confusion – involves liquids

elements:a. 2 or more movablesb. belong to 2 or more ownersc. cannot identify the 2 movables

ex. 2 types of rice joined together, toyo and patis mixed together

rules on ownership:1. mixture by will of the owners

o co-ownership occurso ownership in accordance with the agreement of

the owners2. mixture by chance

o pro-rata – in proportion to the value of the goodso in the absence of any valuation, consider the goods as equal

in value3. mixture done by 1 person

o in good faith – pro rata to the value of the properties that are part of the mixture

o in bad faith – the person who caused the mixture loses his property and becomes liable for damages

Specification raw material transformed into a finished object by labor ex. Piece of cloth made into a dress by a seamstress Labor is considered as principal while the raw material is considered as an

accessory. If the worker is in good faith – he acquires the product, and pays the value

of the materials. Exception: if the finished product is worth less than the value of the raw materials – the owner may ask for the value of the materials or may ask for the work product and pay for the labor.

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If the worker is in bad faith – owner may ask for the return of the material or payment of the value thereof plus recover damages. Exception: if the work product is valuable for scientific or artistic reasons – the worker pays the value of the material plus damages and gets to keep the work product.

Co-ownership

Co-ownership Ownership of an undivided thing or right belongs to different owners Subject – 2 or more persons Object – one indivisible object Right – aliquot share (not yet physically divided) in fractions or ratios

How does co-ownership exist?1. by law2. by contract3. by chance or fortuitous event4. by succession5. by occupation

Rights of a co-owner:1. to use and possess the thing owned in common (Article 486)

restrictions:i. use it according to the use intended thereof

ii. cannot prevent others from using it according to their rights2. to bring an action in ejectment (Article 487)3. to compel the other co-owners to contribute to the necessary expenses and

taxes (Article 488)4. to exercise full ownership over his aliquot share (Article 493)

need not acquire the consent of the other co-owners if he intends to sell, mortgage, pledge, encumber his aliquot share

other co-owners may exercise the right of redemption post sale in proportion to their share by paying the same amount paid by the stranger who acquires the aliquot share

the right of redemption is exercised against a third party who is not a co-owner prior to the sale

other co-owners not granted the right of first refusal the right to redeem cannot be contracted away, as public policy favors

ownership in 1 person rather than in many

Emma, Thel and Che co-owned a property. Emma sold her 1/3 aliquot share to Chui, the wealthy owner of a Honda plant in Laguna, for P40,000. Thel wants to redeem the 1/3 share sold to Chui. Can Chui demand more than P40,000 as purchase price?

No.Can Thel pay less than P40,000?

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Yes. Thel can pay less than P40,000 if the price for the 1/3 share is unreasonably high, in which case the co-owner pays a reasonable price. (Article 1620)

Time to exercise the right of redemption: 30 days from notice in writing by the prospective vendor, or by the vendor

Ranma, Ryoga and Mousse co-owned a parcel of land in Makati. Ryoga sold his 1/3 share to Shampoo. Ranma bought the entire 1/3 share from Shampoo. Does Ranma own the entire 1/3 share?

No. Ranma is only advancing Mousse’s contribution to the purchase price for the 1/3 share sold to Shampoo. Ranma holds the property in trust for Mousse. Mousse has 10 years to recover his share from Ranma, counted from the time of repudiation by Ranma of the constructive trust.

Sale of the entire property must be with the consent of the other co-owners. Absent such consent, the transaction is valid up to the aliquot share of the co-owner. The rest shall be considered as an unenforceable contract.

5. right to fruits and benefits share of a co-owner to the extent of his share in the co-owned

property stipulations to the contrary are void

Carlo, Gerik and Migo agreed to enter into a co-ownership. Carlo contributed P200,000, Gerik contributed P50,000, and Migo contributed P200,000. Can the three agree on equal interest and share in the co-ownership?

Yes. It is considered as a valid stipulation.Carlo, Gerik and Migo agreed on equal interest and share in the co-ownership.

Can the three later on contract for a different share in the co-ownership?No. Once the share is agreed upon, the parties cannot contract for a greater share

in the fruits, benefits and charges, nor change the share in the fruits, benefits and charges.

6. to demand at any time the partition of the thing owned in common (Article 494)

any act which puts an end to the co-ownership is considered as partition

no prescriptive period for the exercise of the right to partition Prohibition to partition may be allowed, subject to the following

limitations:a. by agreement of the co-owners – valid for 10

years only, extendible indefinitelyb. by the testator in a will – valid for 20 years only,

non-extendible if the prohibition to partition extends beyond

the limitation provided for the law (as where it is for 50 years), it shall

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be valid only up to the extent of the period of limitation provided for by law (10 years by agreement or 20 years in a will).

If a co-owner does not want to extend the agreement not to partition, he may ask for partition of the thing co-owned.

If the property is rendered unserviceable if partitioned, the co-owners may ask that it be sold, the proceeds to be divided among the co-owners.

7. right of management co-owners can manage and administer co-owned property (inherent

right) can transfer management or administration to a 3rd person (contract of

agency) voting:

i. majority – for acts of administration or managementii. unanimous – for acts of alteration

acts of ownership – considered acts of alterationchange in use of property – considered acts of alterationacts of disposition of property – considered acts of alterationlease over 1 year – considered acts of alterationlease less than 1 year – considered acts of administrationconstruction over property – considered acts of alteration

if built without the consent of the other co-owners, not entitled to reimbursement

co-owners may appropriate the construction or ask for its destruction without the benefit of reimbursement

Necessary improvements or expenses may be done by any co-owner consent of other co-owners not required notice must be given to the other co-owners, if this is practicable; if not,

notify after making the necessary improvements or expenses includes payment of taxes co-owners must reimburse according to their pro rata share payment shall be by cash or by renouncing a portion a portion of his co-

ownership to the person who incurred the expenses

A, B, and C each owns 1/3 of a property worth P30,000. A incurred necessary expenses in the amount of P6,000. Can A seek reimbursement from B and C?

Yes. B and C are obliged to reimburse P2,000 (1/3 of P6,000) each to A. If B and C do not pay, A can file an action against them and enforce the judgment debt on their property.

C has no money and decides to renounce a portion of his share of the co-owned property to A. How much will he renounce?

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C’s share in the co-owned property is P10,000 (1/3 of P30,000). C will give up 1/5 of his 1/3 share (1/5 of P10,000 equals to P2,000) to A who incurred the expenses.

6 modes of terminating co-ownership1. partition

main mode of terminating co-ownership extrajudicial – no creditors, or creditors are in agreement

2. merger3. loss of thing4. acquisitive prescription

termination of trust a co-owner repudiates the co-ownership

5. expropriation6. renunciation

Possession

Possession – the holding of a thing or the enjoyment of a right

2 kinds of possession:1. right to possession

inherent in ownership jus possidendi

2. possession independent of ownership rights right of possession jus possessionis

How to acquire possession1. modes of possession

a. material possessionb. subjecting to one’s will – ex. tradition longa manu or tradition

simbolicac. constructive delivery

2. intention to possess3. possession in one’s own right, and not in behalf of another

Different categories of possession1. possession without any legal right

possession de facto no legal right or title no legal possession – legal possession is recognized in somebody else does not ripen into ownership relate to Articles 536 and 537

i. Article 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

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deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

ii. Article 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

2. possession with juridical title possession not in the concept of an owner, such as

usufructuary or lease recognition of legal possession in another recognition of ownership by the possessor in another

person does not ripen into ownership

3. possession with just title there is possession with just title – mode of acquiring ownership there is a flaw in said title – the transferor did not have any legal title colorable title – available for acquisitive prescription and can ripen

into ownership4. possession with just title and without any flaw

possession of an owner need not ripen into ownership

If the owner abandons his property, it becomes res nullius (except in case of immovable property, in which case it becomes part of the property of the State under the Regalian doctrine). Ownership may be acquired not through acquisitive prescription, but through occupation.

Elements of possession which can ripen into ownership:1. there must be just title which is flawed2. hold it in the concept of an owner (open, public, continuous, adverse, to the

exclusion of others) – except in the case of co-ownership

Time needed for possession to ripen into ownershipGood faith

ordinary acquisitive prescription movables – 4 years immovables – 10 years

Bad Faith extraordinary acquisitive prescription movables – 8 years immovables – 30 years

Counting of possession in 1 person:

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Yuffie bought a lot and possessed it in good faith for 3 years. After 3 years, Yuffie found out that her title was flawed. Yuffie possessed the lot for another 3 years. How much longer must Yuffie possess the lot to acquire it?

good faith - 3 years x 3 = 9 yearsbad faith - 3 years = 3 years

12 years

Yuffie must possess it for another 18 years (30 years – 12 years)

Tacking adding the possession of one to the possession of another there must be privity of relations between the persons involved (no break

in the chain) add the possession of the predecessor-in-interest

A sold his lot to B, who sold it to C, who sold it to D, and who sold it to E. Can E tack A, B, C and D’s possession to his possession? Yes.

A sold his car to B. B lost the car to a carnapper. C acquired the stolen car and sold it to D. D sold the car to E. Can E tack A and B’s possession to his possession?

No, because there was a break in the chain (carnapping).

ImmovableA (good faith) - possession for 3 years x 3 = 9 yearsB (bad faith) – possession for 3 years = 3 years

12 yearsHow much longer must B possess the immovable property to acquire it?

18 years (30 years – 12 years = 18 years)

Can B divide his possession by 3 years, add A’ possession, and claim that he needs to possess it for another 6 years to acquire it under ordinary prescription?

No, because B is in bad faith.

ImmovableA (bad faith) – possession for 3 years / 3 = 1 yearB (good faith) – possession for 3 years = 3 years

4 yearsHow much longer must B possess the immovable property to acquire it?

1st view: 6 years (10 years – 4 years = 6 years)2nd view: 7 years. A’s possession should be disregarded in the number of years of

possession, since A’s possession is tainted with bad faith.

Possession acquired by succession: if the heir accepts the inheritance, the heir’s possession is counted from

the date of the predecessor’s death

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if the heir repudiates the inheritance, the heir is deemed never to have possessed the same

Interruption of possession1. physical or actual interruption

loss of possession of property for a period of more than 1 year failure to recover possession within 1 year, the previous possession

shall be deemed lost remedies to recover possession:a. movables – replevinb. immovables – ejectment, unlawful detainer, accion publiciana

Cloud possessed the lot for 3 years. He is dispossessed of the lot by Sephiroth. Cloud files a case which lasts for 10 months and wins. Is the 10 month period credited in Cloud’s favor? Yes.

2. legal a case is instituted by a person who claims title over the property interruption occurs from the time of receipt of summons if the plaintiff wins, possessor loses possession and the years credited

in his favor if the plaintiff loses, possessor enjoys the benefit of possession\

Co-possession 2 or more persons buy a property when there is a flaw in the title the buyers are not co-owners, but co-possessors

Interruption for co-possession:A, B and C co-possess a lot. X claims ½ of the property co-possessed by A, B and C. What is the effect of the interruption?

The interruption affects everybody.

Possession prior to partition is credited to one’s possession after partition. If there is co-possession among A, B and C for 10 years, and after partition, A possessed his part for 3 years, A is deemed to have possessed his part for 13 years.

If there is legal interruption after partition, such interruption will affect everybody because the other co-possessors have to do mutual accounting for his fellow co-possessors against eviction. If ownership has ripened, each co-possessor must look out for his share, in which case he cannot go after his co-possessors in case of eviction.

Can there be co-possession if 2 persons are claiming possession over the same property?No. There is no co-possession. The law does not recognize legal possession in 2

persons who do not have the same legal interest.

How to resolve in case 2 persons claim possession over the same property:

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person preferred – present possessor if no present possessor – person who possessed the longest if both possessed for the same period of time – person who presents just

title (mode of acquisition) if both have present title – deposit the subject matter in court

Rules governing ownership of fruits during possessionGood Faith Bad Faith

Civil Fruits Entitle to civil fruits which accrue to him during his period of possession

all fruits earned must be accounted for, plus interest, profits, and income

pay rentalsNatural or Industrial fruitsGathered (Article 443)

Keeps what is gathered must turn over what is gathered

entitled to reimbursement for gathering, planting, sowing

Pending (Article 545)

Option of the owner:1. allow possessor to

continue harvesting and gathering of fruits, after which the possessor leaves

2. sharing of proceeds of the harvest based on the period of possession

Loses everything

Mel possessed and planted rice over a parcel of land for 2 months. Trish, the owner of the parcel of land, dispossessed Mel and took possession of the land for 4 months, culminating into the harvest of the rice planted. How will Mel and Trish share in the harvest of the rice?

Mel and Trish will share in the net harvest in the ratio of 1:2Supposing the Gross Harvest is P7,500. Expenses amounted to P1,500. How much will Mel and Trish get?

Gross Harvest P7,500Expenses P1,500Net Harvest P6,000

Mel will get P2,000 (1/3 of P6000) while Trish will get P4,000 (2/3 of P6000).

Rules governing Expenses and Improvements same as builder in good faith and builder in bad faith when owner succeeds in possession, he is required to pay for

improvements existing at the time of his acquisition of possession

Loss of possession:

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1. abandonment – give up hope of recovery of the property, or relinquish any right over the property

for movables – becomes res nullius for immovables – goes to the State

2. sale or assignment3. interruption

Usufruct

Usufruct real right (attaches to the property until such time as the period of usufruct

ends) to enjoy the property belonging to another person obligation to preserve the property covers use, fruits and possession does not cover jus disponendi and jus abutendi possession and use are not essential elements right to the fruits is an essential element

Usufruct covers both movable and immovable property. Easement covers immovable property only.

For consumables, it is considered as a quasi-usufruct. If there is an appraisal, return the value of the property. If there is no appraisal, return the same thing of the same kind and quality.

For non-consumables, it is considered as usufruct. The obligation of the usufructuary is to return the same thing which is the subject of the usufruct without alteration to its character except its normal wear and tear.

The only person who can constitute a usufruct over a property is the owner of the property. This is different in the case of lease, where the person who can constitute a contract of lease need not be the owner himself, such as in the case of lessees and sub-lessees.

A usufruct can be constituted notwithstanding the fact that the property is already subject to a mortgage. A contract of usufruct is a principal contract. A mortgage contract is an accessory contract. Once the principal obligation becomes due and demandable, and there is default on the part of the debtor, the mortgagee may foreclose the mortgage notwithstanding the existence of a usufruct or the obligations of the usufructuary. The mortgagee must respect the usufruct even after the foreclosure. The usufructuary has nothing to do with the principal obligation.

Can a usufruct be granted to an object subjected to a pledge?No. In such a case, there would be conflict. Usufruct and pledge require

possession on the part of the usufructuary and pledgee respectively. Usufruct and pledge cover the fruits of the object.

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Can a usufruct be granted over a leased property?Yes. Possession is not essential in usufruct. Usufruct deals with fruits.

Can the usufructuary construct improvements over the property subject of a usufruct?Yes. This is not considered a breach of the usufructuary’s obligation, provided the

usufructuary can restore the property to its former condition without injury to the property.

How to constitute usufruct?1. legal usufruct

by law, not by the will of the parties almost non-existent in today’s laws

2. act inter vivos by contract by donation – follow the formalities for donations by will – follow the formalities for wills For usufructs constituted by contract involving immovable property,

the contract must be in writing. Otherwise, the usufruct is unenforceable as it falls under the Statute of Frauds.

3. by prescription

Can a usufruct be constituted over rights?Yes, except rights which are purely personal.

The grant of usufructuary rights may be total or partial, may be given to one or more persons, whether successive or simultaneous.

Simultaneous as long as one of the usufructuaries is still alive, the usufruct will still

continue to subsist the usufructuary rights of the others who died will accrue to the

usufructuaries who are still alive

Substitution – follow the rule on fideicommissary substitution, which requires that it be 1 degree of substitution

Usufruct created other than by law parties may agree to the terms of the usufruct, provided the essential

elements are present provisions of law regulating usufructs apply in the absence of a contrary

stipulation

Elements of a contract of usufruct:1. right to enjoy the fruits and income of the property 2. obligation to preserve the form and substance of the property

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Fruits:1. Civil

accrue daily those which accrue when the usufruct subsists goes to the usufructuary

2. natural or industriala. gathered – those gathered during the usufruct belongs to the

usufructuaryb. standing

i. those standing at the start of the usufruct goes to the usufructuary

ii. for those standing after the usufruct, there is a sharing of the fruits

Hidden treasure – the usufructuary is a stranger, and is entitled to ½ of the share in the hidden treasure if he finds it.

The usufructuary has the right to possession over the property to the exclusion of others, including the owner of the property, subject to a contrary stipulation.

The usufructuary right belongs to the usufructuary, who may alienate, sell, or transfer it even without the owner’s consent, unless there is a stipulation to the contrary

Can the usufructuary transfer the possession of the property to another by way of lease?If the usufructuary is given the right of possession, he may transfer possession by

way of a lease contract, subject to the condition that the lease is for the duration of the usufruct.

If the lease extends beyond the usufruct, what happens?If the owner consents, the lease is binding to the owner/If the owner did not consent, the lease is binding if the lease of the property

becomes a real right, as when the lease is registered or is for more than 1 year. In such a case, the owner will be entitled to the rentals

Obligations of the usufructuary

1. Article 583 (getting in the usufruct)a. to make an inventory after notice to the owner

appraisal of the movables description of the CONDITION of the immovables

Exceptions: can be waived when there will be no 3rd person who will be prejudiced (Article 585)

b. give security (such as bonds and the like)Exceptions:

can be waived

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legal usufruct donor reserves the usufruct of the property donated (Article 584) parents who are usufructuaries of their children’s property, except

when the parents contract a 2nd marriage (Article 584) when there will be no 3rd persons injured (Article 585)

E.g. rent given to the usufructuary (no need to give security and to make inventory)

In usufructs of land, the usufructuary shall make an inventory of the condition of the land so that at termination, the parties have a standard to go by to see if the usufructuary is returning the same thing. The usufructuary shall provide a security to answer for his obligations.

The Civil Code does not provide an express provision on the effects of failure to make an inventory by the usufructuary. The failure to make an inventory gives a prima facie presumption that the usufructuary received the thing in usufruct in good condition (comments of some annotators).

The usufruct is not affected on account of failure to give security. The usufructuary cannot be placed in possession of the property, but he is still entitled to the fruits and income.

Article 587Caucion juratoria is a promise under oath to deliver:a. furniture necessary for the usufructuary’s useb. house included in the usufructc. implements, tools, and other movables necessary for the vocation or industry

of the usufructuaryThe oath serves as security because the usufructuary does not have the means to give one.If the usufructuary fails to perform a particular obligation in this situation, the

usufructuary is liable for damages. The only difference with caucion juratoria and with one wherein a security is

given is that in the latter case, the payment of damages is set by the security, and so the owner runs after the security given.

2. to preserve the form and substance of the thing (during the usufruct)Expenses:

necessary – for the preservation of the thing useful – for the account of the owner; usufructuary can incur them and can

remove them after the usufruct luxurious – for the account of the owner; usufructuary can incur them and

can remove them after the usufruct

ordinary repairs

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preserve and keep the property preserved against ordinary wear and tear

obligation of the usufructuary to pay for them if the usufructuary does not pay for them, the owner may seek

reimbursement from the usufructuary elements:

a. the deterioration arose from the natural use of the thingb. the repairs are necessary for the preservation of the thing

extraordinary repairs the owner is the one who shoulders the extraordinary repairs 2 classes of extraordinary repairs:

a. caused by extraordinary causes or eventsb. caused by the natural use of the thing but are not needed for the

preservation of the thing usufructuary shall notify the owner, who will incur the expense If the owner makes the extraordinary repairs, the usufructuary pays

interest. If the usufructuary makes the extraordinary repairs, the owner pays the increase in value which the immovable acquired, which is equal to the current value minus the previous value of the immovable.

In case of emergency, the usufructuary may incur the expense and notify the owner later, if it is not practicable to notify the owner. The usufructuary shall have the right to reimbursement for the expenses and the increase in value of the property due to the improvement and the right to retention at the end of the usufruct.

3. usufructuary to pay annual taxes and charges and of those constituting a lien on the fruits (during the usufruct)

on the principal – obligation of the owner on the fruits – obligation of the usufructuary

4. take care of the thing with the diligence of a good father of a family (during the usufruct)

5. to return the thing in usufruct to the owner (end of the usufruct) return the property in its original form at the time the usufruct started right to the fruits and income terminates pay reimbursement, expenses and damages right of retention if the owner has yet to pay reimbursement, expenses

and damages

Insurance not an obligation of the usufructuary, but it is to his benefit to insure the

property subject of the usufruct

A usufruct is constituted over an immovable and the building constructed on it. The building is destroyed.

a. If the usufructuary shares in the insurance, he share in the benefits

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If the building is reconstructed, the usufructuary continues his right of usufruct over the building newly constructed

If the building is not reconstructed, he receives interest with respect to the civil fruits of the insurance proceeds (interest)

b. If the usufructuary does not share in the insurance, Building is rebuilt – the usufructuary does not enjoy usufructuary rights

over the building, but he continues to enjoy interest over the land Building is not reconstructed – usufructuary continues to enjoy interest

over the immovable and the materials that are of value and would remain

Termination of usufruct:1. end of the period of usufruct or expiration of the term of the usufruct

grant of 99 year usufruct may be considered in the same way as a grant of a 99 year lease – considered a transfer of ownership

2. death of the usufructuary, unless a contrary intention appears if there are several usufructuaries, the death of the last usufructuary

terminates the usufruct death of the owner does not terminate the usufruct

3. fusion or merger of the usufruct and ownership in the same person4. renunciation of the usufructuary of the usufruct5. total loss of the thing in usufruct, except if the usufruct is over a land and

building, in which case determine if the usufructuary shares in the payment of the insurance and if the building is rebuilt

Easements and Servitudes

Easement or servitude encumbrance imposed over immovable property only for the benefit of:

i. another immovable belonging to a different owner (real easement)ii. a person or group of person, or a community (personal easement)

cannot institute an easement over another easement

Classes of easement:1. real (praedial) v. personal

a. real – in favor of another immovable belonging to another b. personal – in favor of a community or of one or more person to whom the

encumbered estate does not belong; does not require that they have an interest over the immovable which is contiguous to the dominant estate

2. continuous v. discontinuousa. continuous - use of which IS or MAY BE incessant, without the

intervention of any act of manE.g. easement of light and view

b. discontinuous – used at intervals and depends upon the acts of manE.g. right of way

3. apparent v. non-apparent

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a. apparent – made known and are continually kept in view by external signs that reveal the use and enjoyment of the sameE.g. the road itself

b. non-apparent – shows no external indication of its existenceE.g. the road is grassy, no footpath exists, but a right of way exists

4. positive v. negativea. positive - owner of servient estate obliged to allow something to be done,

or to do it himselfb. negative – owner of servient estate prohibited from doing something

which he could lawfully do if the easement did not exist

5. legal v. voluntarya. legal – established by lawb. voluntary – established by the will of the parties; does not have to be a

contract

Why determine whether the easement is continuous, discontinuous, apparent or non-apparent?

Continuous and apparent easements can be acquired by title or by prescription. All other types of easement can only be acquired by title.

Can an easement of light and view be acquired by prescription?Yes. It is a continuous and apparent easement.

Title juridical act that creates the easement (voluntary act between the parties) more or less the same as just title, except that what is passed is an

encumbrance, not ownership

Juridical act – covers donation, testate succession, contracts

Prescription not the same as acquisitive prescription refers to the use of a certain portion of a property 10 years (for continuous and apparent easements only) for positive easement

o allow something to be done on one’s propertyo prescription counted from the time easement is

actually used for negative easements

o notification to the servient estate of a prohibition by way of a notarial act

o prohibit something to be done which would have been lawfully done by the owner were it not for the easement

o involves mostly non-apparent easements

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General characteristics of easements:1. involves immovable property2. element of permanence

if there is no period, will continue until a mode of extinguishment occurs

if there is a period, easement extinguishes upon expiration of the period

3. use or non-use is not an essential element of easement non-use for 10 years is a mode of extinguishing an easement if the easement is discontinuous in character, start counting from the

time there is discontinuation of use if the easement is continuous in character, start counting from the time

an act is done which is contrary to the use of the easement4. inseparability of easement from the immovable

easement cannot be sold or transferred without selling or transferring the immovable to which it is attached

registration of the servient estate without making an annotation therein of the easement extinguishes the easement

registration of the dominant estate without annotating the easement therein does not extinguish the easement

5. indivisibility – once easement is created, it is created on the entire property6. perpetual

Form of creation of easements:1. legal easements – no form, as it is imposed upon the parties by law2. voluntary easements

i. donation the donation must create the easement, not pass on the

easement form for donation

ii. succession succession must create the easement, not pass on the

easement form for wills

iii. contract must be in writing, as it creates a real right, thereby falling

under the coverage of the Statute of Frauds acknowledgement by the owner of the servient estate

creates the easement

Rights of the dominant owner1. Article 625 – exercise all the rights necessary for the use of the subject

easementE.g. right to draw water for animals includes right of way for passage of animals

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2. Article 627 (2nd paragraph) – right to make any works necessary for the use and preservation of the servitude

Must not make it more burdensome If there are several owners of the dominant estate, they must contribute

to the expenses pro rata If the owner does not wish to contribute to the expenses, he must give

up or renounce his right in favor of the other owners of the dominant estate

The owner of the servient estate also contributes to the expenses if he uses the easement, unless there is a contrary stipulation

3. use in accordance with the purpose for which the easement was created

Obligations of the dominant owner1. Article 627 (2nd paragraph) – to notify the servient owner of the construction

of works for use and preservation2. Articles 627 (1st paragraph) & 628 (1st paragraph) – to pay for the expenses of

such works and to renounce the easement in favor of others if he doesn’t wish to contribute to the expenses

3. cannot impose added burden on the easement4. cannot change the use of the easement

Rights of the servient owner1. Article 630 – right to retain ownership of the portion on which the easement is

established, and may use it in such a manner as not to affect the exercise of the easement Payment of indemnity does not transfer ownership from the servient estate

to the dominant estate2. Article 629 (2nd paragraph) – right to change the easement if it becomes very

inconvenient Must not impose an added burden to the dominant estate

3. Right to use the property subject of the easement in a manner as not to affect the exercise of the easement

Obligations of the servient owner1. Article 628 (2nd paragraph) – contribute to the payment of the expenses when

he uses the easement2. Article 629 (2nd paragraph) – expenses for the change in easement 3. Article 629 (last sentence) and Article 630 (last clause) – not to do anything in

his tenement which will impugn the easement or cause injury to the dominant estate

Modes of terminating easements:1. merger in the same person of the ownership of the dominant and servient

estate

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The dominant estate need not acquire the entire servient estate. But, he must acquire that part where the easement falls for the easement to extinguish.

2. prescription by nonuser for ten years If somebody (not a co-owner) uses the discontinuous easement, such use

will not benefit the dominant estate and will not toll the running of the prescriptive period. However, if the easement was constituted for the community, then it doesn’t matter who uses it as long as somebody uses it, and the running of the prescriptive period is tolled. (Article 633)

3. either or both estates fall into such condition that the easement cannot be used4. expiration of the term 5. performance of a resolutory condition6. renunciation of the owner of the dominant estate

Modes of Acquiring Ownership

Modes of acquiring ownership – the manner or cause by which ownership is transferred

Modes of acquiring ownership1. occupation2. intellectual creation – product of intellect and skill (newly created)3. succession – transfer from predecessor to successor4. law5. donation6. tradition – delivery7. prescription – requires a certain number of years

All types of mode grant ownership upon its occurrence.

Execution of a public instrument is considered as constructive delivery.

Tradition as a mode of acquiring ownership is a result of delivery coupled with title (contracts). It is tradition which transfers ownership, not the contract.

Title not sufficient to convey ownership gives cause for the occasion of delivery only grants personal right to compel delivery

Mode grants real rights over the property once there is mode, one can exercise dominion over the property

Is donation title or mode?For donation of real property, it is mode as the donation is executed in a public

instrument.

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For donation of movable property, if the property is P5,000 or less, it is mode as simultaneous delivery is required. If the property is more than P5,000, it becomes a problem because what is required is the donation to be in writing. Simultaneous delivery is not required for the validity of the donation.

Original Mode of acquiring ownership does not necessarily mean the object was without a previous owner ownership not derived from a previous owner

Derivative Mode of acquiring ownership ownership derived from another person

Occupation

Occupation – acquisition of things appropriable by nature which are without an owner

3 requisites for occupation:1. actual physical possession2. must involve corporeal properties

lands cannot be acquired by occupation animals can be acquired by occupation if the animals are in cages or animal houses, they cannot be acquired

by occupation since (1) they are considered as real property and (2) they have owners

3. subject must have the intention to acquire ownership4. object must be appropriable by nature and without an owner (res nullius)5. compliance with other special requirements of law

Wild animals do not have owners born in the wilderness acquired by occupation Regalian doctrine does not apply as these are not natural resources

Domesticated animals caught in the wilderness and brought into the control of man important element: acquired the habit of going home to their owners once domesticated, the person domesticating them becomes the owner if lost, owner has 20 days to recover them

Domestic animals without an owner only if abandoned by the owner no time frame for recovery

Fish, pigeons and birds – once they pass to the property of others, it is owned by the property owner, so long as they are not enticed by some artifice or fraud

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Swarm of bees – owner has 2 consecutive days to run after them

Lost movables obligation to return it to the owner (if known) if unknown, bring it to the mayor and deposit it with him 2 week publication if deteriorates, sold at public auction 8 days after publication wait for 6 months after publication for owner to claim it if no one claims it, finder can appropriate it for himself

Donation

Elements of Donation1. an act of liberality2. disposition of a right or an object

may be real or personal must be within the commerce of man must be transmissible

3. acceptance by the donee no one is compelled to accept the liberality of another

Different kinds of donation:1. simple or pure

without any strings attached requires nothing from the donee

2. remunatory reward for past services which does not constitute a demandable debt

3. onerous governed by the law on contracts consideration is paid for the thing donated

4. modal imposes a burden, charge or application on the property (modes) governed by the law on donations ex. I will donate this land, which shall be used for educational

purposes only5. conditional

condition is imposed for the donation to take effect condition may be suspensive or resolutory ex. I will give you P1 million if you pass the bar

Article 764 talks of revocation of the donation if the conditions are not fulfilled. Does Article 764 speak of modal or a conditional donation? Modal.

Inter Vivos Mortis Causa Effectivity During the lifetime of the After the death of the donor

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donorFormality Real property – public

instrumentPersonal property:

a. more than P5,000 – in writing

b. P5,000 or less – oral or writing plus delivery

For wills

Intent Transfer ownership during donor’s lifetime

Transfer ownership upon donor’s death

Element of death is very important in donations mortis causa. There must be a showing that the donor intended to transfer ownership upon his death

Actual physical delivery of the thing donated is not an indicator that the donation is inter vivos or mortis causa.

Imposition of a suspensive condition which will not happen during the donor’s lifetime does not mean it is a donation mortis causa. Imposition of a resolutory condition dependent on the donor’ survival does not mean it is a donation mortis causa.

All doubts should be resolved in favor of a donation inter vivos.

If the donor reserved the right to revoke the donation at any time, it is a donation mortis causa, since a donation inter vivos is essentially irrevocable.

Object of donations property or right cannot donate future property (must have the property at the time of the

making of the donation), except in donations mortis causa

When is the donation perfected?There must be acceptance of the donation by the donee and the donor has notice

of the acceptance by the donee.If the donation and acceptance are contained in 1 and the same document, the

donation is perfected upon the execution of the instrument.If the donation and acceptance are contained in 2 different instruments, the

donation is perfected once the donor knows of the acceptance in writing.

Qualifications:1. donor

18 years of age not insane not under civil interdiction capacity must be present:

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i. for donation inter vivos – upon making of the donation, which is the perfection of the donation, and perfection occurs when the donation is accepted and the acceptance is made known to the donor

ii. for donation mortis causa – upon the making of the donation, which occurs upon the execution of the will

2. donee alive or conceived at the time of the making of the

donationi. for donations inter vivos – upon perfection of the

donationii. for donations mortis causa – at the time the succession

opens\ Court approval is not necessary if the guardian accepts

the donation on behalf of his ward, unless the donation imposes a burden, charge or obligation.

Disqualifications – no absolute disqualifications, only relative disqualifications1. between spouses, during the marriage – to protect creditors2. between persons who are guilty of adultery or concubinage at the time of the

making of the donation – need not be in consideration of the relationship3. those found guilty of the same criminal offense, in consideration thereof –

may be made before or after the commission of the crime, but conviction is required

4. those made to a public officer or his wife, descendants or ascendants by reason of his office

5. disqualified from inheriting by will – witnesses of a will who are disqualified to receive legacies or devices in a will are not disqualified to receive donations, since donations do not require witnesses

RevocationDonations inter vivos – irrevocable in characterDonations mortis causa – revocable at will

Grounds for revocation1. Birth, Adoption, Reappearance of a child

At the time the donation was made, the donor did not have any child or did not know that he had a child

After the donation, the donor has a child, whether legitimate, illegitimate or legitimated

Period of 4 years from the time of birth, adoption or reappearance to revoke the donation

Transmissible to the heirs of the donor if the donor died within the 4 year period, in which case the remaining period shall apply to the donor’s heirs

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Reduction shall be based on the inofficiousness of the donation2. non-fulfillment of the conditions3. ingratitude

purely personal to the donor and the donee for failure of the donee to show loyalty to the donor

cannot be passed to the donor’s heir period of 1 year from knowledge of the act of ingratitude, and it was

possible for him to bring the action grounds:

i. commission of an offense against the person, honor, or property of the donor, the spouse or children under the donor’s parental authority

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

- occurs when the donee acts as plaintiff or witness against the donor

- truth is not a defenseiii. donee unduly refuses to render support to the donor when

the donee is legally or morally bound to give support to the donor

- refusal must be justified

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