property reviewer for finals

7/27/2019 Property Reviewer for Finals

1/23

Notes of Sir Torregosas discussion and Usufruct When is there a usufruct?

The Civil Code, Article 562 states:

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

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

Does the extent of a usufructuarys rights include the right to alter or modify the thing?

No. There is an obligation to preserve the thing held in usufruct EXCEPT when the title provides

otherwise.

Sir Torreg: the word title in usufruct refers to any act which gives rise to the constitution

of usufruct (i.e. contract, will, donation, etc.).

Such title should comply with the formalities required by the law.

It may provide or authorize the usufruct to alter the form/substance of the

thing given in usufruct.

What are the instances when a usufructuary alter or alienate the thing held in usufruct? (1) Agreement of the parties [prevails over the prohibition. This is found in the title]

(2) When the property given in usufruct is a consumable

Here, what is constituted is not the thing itself but the value of the thing (converted into a

simple loan or mutuum and therefore ownership is transferred in favor of the usufructuary

and at the termination of the usufruct, there is the obligation to return the price or value of

the property or a thing same in type and quality.

(3) When the nature of the thing is such that it is for sale (merchandise for sale)

What are the characteristics of a usufruct:

(1) It can only be created by an owner or his agent

Lessee cannot constitute a usufruct (2) It cannot be constituted in favor of the naked owner

(3) It is always a real right (and thus, transmissible)

It is attached to the property itself

The usufructuary can transmit his right even without naked owners consent

For the purpose of binding 3rd persons, it has to be registered.

Exceptions to alienability of usufruct:

Parental/legal usufruct, which is:

Given in consideration of relationship and a parental usufruct is limited

to the 1support of the child, and 2collective needs of the family.

Thus, only voluntary usufruct may be alienated. Usufruct granted in consideration of ones person; and

Usufruct acquired thru a caucion juratoria (promise under oath)

Here, the need of the usufructuary himself is the reason for the

enjoyment.

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

(4) It is temporary in nature

Reviewer in Property by Enaski1


2/23

Notes of Sir Torregosas discussion and Usufruct Natural person usufruct is terminated at the death of the

usufructuary EXCEPT if there was a contrary agreement.

Juridical person maximum of 50 years UNLESS juridical entity is

sold beforehand



3/23

Notes of Sir Torregosas discussion and Usufruct Classification as to origin:

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

(1) Voluntary Usufruct

Created by will of the parties

(2) Legal Usufruct

Created by law (i.e. parental usufruct)

Classification as to the number of persons enjoying the right:

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

(1) Simple Usufruct

(2) Multiple Usufruct

Sir Torreg: Remember the following rules

If the usufruct is by donation to many all the donees must be alive or at least already

conceived, at the time of the perfection of the donation (refer to Art. 756)

If the usufruct is by will or testamentary succession there must only be 2 successive

usufructuaries and most be alive at the time of the testators death.

Classification as to Object(s) Involved:

(1) Over rights

Provided it must bit be purely personal or intransmissible in character

(2) Over things

a.) Normal

involves non-consumable things where form and substance are preserved b.) Abnormal can be either

b.1 Consumable goods

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

b.2 Non-consumable, but gradually deteriorate

Art. 573. Whenever the usufruct includes things which, without being consumed, graduallydeteriorate through wear and tear, the usufructuary shall have the right to make use thereof inaccordance with the purpose for which they are intended, and shall not be obliged to returnthem at the termination of the usufruct except in their condition at that time; but he shall be

obliged to indemnify the owner for any deterioration they may have suffered by reason of hisfraud or negligence.

b.3 Sterile animals

treat these as a usufruct over consumable/fungible things



4/23

Notes of Sir Torregosas discussion and Usufruct

Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall beobliged to replace with the young thereof the animals that die each year from natural causes, orare lost due to the rapacity of beasts of prey.

xxxxxxxx

PARAGRAPH 4:

Should the usufruct be on sterile animals, it shall be considered, with respect to itseffects, as though constituted on fungible things.



5/23

Notes of Sir Torregosas discussion and Usufruct What are the rights of a usufructuary?

Over hidden treasure

Usufructuary is considered as a stranger unless he is the finder himself

(gets share)

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

considered a stranger

Over fruits

Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary.

Those growing at the time the usufruct terminates, belong to the owner.

In the preceding cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund tothe owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of theusufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and othersimilar expenses incurred by the usufructuary.

The provisions of this article shall not prejudice the rights of third persons, acquired either at the beginningor at the termination of the usufruct.

Pending at the beginning of the usufruct

Belong to usufructuary;

with no necessity of refunding owner for expenses incurred; but

if a possessor other than the owner has spent for the cultivation, planting, etc

they should be reimbursed (according to Sir Torreg, even those in bad faith)

Pending at the termination of usufruct

Belong to the owner

Thus, usufructuary cannot sell the fruits which are due to be harvested

after the termination of the usufruct (sale of future crops is not binding

upon the owner. Remedy of buyer would be to go after the

usufructuary)

Usufruct can be reimbursed, limited only to the value of the proceeds of the

fruits

If the usufructuary is prevented from gathering the fruits due to a

fortuitous event/through the fault of the owner, he should be allowed

to gather even after the termination of the usufruct.

Right to lease the thing itself

General rule: ordinarily extinguished upon termination of the usufruct

Exception: 1if owner allows lease to continue, or 2property are rural lands

Sir Torreg: Lease of the thing constituted by the owner to a third party before the

constitution of a usufruct is not extinguished, but the usufructuary is entitled to the rent

collected for the duration of the usufruct.

Art. 709. The titles of ownership, or of other rights over immovable property, which are not dulyinscribed or annotated in the Registry of Property shall not prejudice third persons.

Fabie v David(75 Phil 536)

The usufructuarys right to select the tenants to the property prevails

Any dispossession should be made known to the usufruct, otherwise

the naked owner may be held liable for damages.



6/23

Notes of Sir Torregosas discussion and Usufruct Right to introduce improvements

Art. 579. The usufructuary may make on the property held in usufruct such usefulimprovements or expenses for mere pleasure as he may deem proper, provided he doesnot alter its form or substance; but he shall have no right to be indemnified therefor. He

may, however, remove such improvements, should it be possible to do so without damageto the property.

Sir Torreg RE: useful improvements/improvements for mere luxury:

No reimbursement;

Usufructuary may remove if there will be no injury caused to the principal thing

(This is not an obligation so the owner cannot compel the usufruct to remove

the improvement)

Removal may not be enforced against a third party unless registered

as an adjunct to the capital thing.

Here, a usufructuary has similar status as a tenant Right to set-off value of improvements with damages caused to the property by the usufruct

Art. 580. The usufructuary may set off the improvements he may have made on theproperty against any damage to the same.

NOTES:

Ifdamage exceeds the value of the improvements, usufructuary is still liable

for the difference;

If the value of the improvements exceeds the damage, the difference does

not go to the usufructuary, but accrues to naked owner except if there was a

prior stipulation to entitle the usufructuary to a partial refund in cash.

Requisites (according to Paras) (1) Damage must have been caused by the usufructuary; and

(2) The improvements must have augmented the value of the property

What are the rights of the naked owner of the property?

At the beginning of the usufruct

Demand inventory and the posting of security

These are not sine qua non requirements but the failure to post security wil

entitle the owner to prevent the usufructs possession (owner here will be the

administrator and the usufruct merely entitled to the fruits)

If usufructuary fails to make inventory

He may be prevented from taking possession over the property, Gives rise to the prima facie presumption that the properties were

received in good condition

NOTE: the eventual compliance of a usufructuary retroacts to the date

when the usufruct was to take effect

Instances when posting of security is not needed:

(1) When no one will be injured/prejudiced;

(2) When there is stipulation by the naked owner;



7/23

Notes of Sir Torregosas discussion and Usufruct (3) When the usufructuary is the donor of the

property himself;

(4) Parental usufruct (except when the parents

contract a subsequent marriage)



8/23

Notes of Sir Torregosas discussion and Usufruct During the usufruct

Alienate the property; provided that he will not alter its

form/substance and will not prejudice the usufruct

If the usufruct was registered transferee should respect the usufruct;

If the usufruct was not registered transferee should respect the usufruct

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

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

Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given inusufruct.

By ordinary repairs are understood such as are required by the wear and tear due to thenatural use of the thing and are indispensable for its preservation. Should the usufructuaryfail to make them after demand by the owner, the latter may make them at the expense of theusufructuary.

Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged tonotify the owner when the need for such repairs is urgent.

Art. 594. If the owner should make the extraordinary repairs, he shall have a right to demand of the

usufructuary the legal interest on the amount expended for the time that the usufruct lasts.

Should he not make them when they are indispensable for the preservation of the thing, theusufructuary may make them; but he shall have a right to demand of the owner, at the termination ofthe usufruct, the increase in value which the immovable may have acquired by reason of the repairs.

Ordinary repairs

Conditions:

1) required by normal/natural use;

2) needed for preservation;

3) must have occurred DURING the usufruct; and

4) must have happened with or without the fault of the usufructuary.

If with fault usufructuary must pay indemnity for damages

Extraordinary repairs

CAUSE & TYPE OF REPAIRS WHO SHOULD PAY REMARKS BY PARAS

1) Caused by natural use but not

needed for preservation

Naked Owner

W/N he was notified

Law does not require naked owner to make the

repairs and cannot be compelled to do so.

2) Caused by abnormal/ exceptional

circumstances andneeded for

preservation (i.e. earthquake

makes stairs unsafe)

Naked Owner

W/N he was notified

Naked owner cannot be compelled to make the

repairs but the usufructuary is allowed to make

them, with the right to get the increase in value and

the right of retention, provided that there was

notification by usufructuary and failure to repair by

naked owner.3) Caused by abnormal/ exceptional

circumstances but are not needed

for preservation.

Naked Owner

W/N he was notified

Usufruct cannot compel naked owner to make

repairs, nor is usufruct allowed to make them even

if the naked owner failed to make them.

Conditions before usufructuary is allowed to make extraordinary repairs:

1) There must be due notification to naked owner of urgency;

2) The naked owner failed to make the repairs;

3) The repair is needed for the preservation.



9/23

Notes of Sir Torregosas discussion and Usufruct Rights of usufruct who has made extraordinary repairs:

a) Get increase in value or reimbursement of expenses (Arts.

594 & 612);

b) Right of RETENTION until paid (Art. 612)

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

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

Rules on bad use (note that this is not a ground for extinguishing a usufruct)

Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuseshould cause considerable injury to the owner, the latter may demand that the thing bedelivered to him, binding himself to pay annually to the usufructuary the net proceeds ofthe same, after deducting the expenses and the compensation which may be allowed himfor its administration.

CAUSE & TYPE OF BAD USE RULES

1) Bad use which does not cause

considerable injury to the naked owner

Usufruct continues; naked owner cannot demand

administration by himself

2) Bad use which causes considerable injury

to the naked owner (not necessarily to

the thing)

Usufruct continues; but the naked owner can DEMAND

delivery to and administration by him, but he will be obliged to

pay NET PROCEEDS to usufructuary.

- note: naked owner cannot sell/alienate the right to usufruct

It is the Court who will determine W/N there is considerable injury to the naked owner.

Also take note of Art. 590, Civil Code

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

Meaning, the usufructuary is liable for the acts of the substitute (faul

negligence, or even willful deceit). It is the usufructuary who answers to the

naked owner.

Extinguishment of a usufruct:

Art. 603. Usufruct is extinguished:(1) By the death of the usufructuary, unless a contrary intention clearly appears;

(2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutorycondition provided in the title creating the usufruct;

(3) By merger of the usufruct and ownership in the same person;

(4) By renunciation of the usufructuary;

(5) By the total loss of the thing in usufruct;

(6) By the termination of the right of the person constituting the usufruct;

(7) By prescription.



10/23

Notes of Sir Torregosas discussion and Usufruct Rule on Taxes

Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits,

shall be at the expense of the usufructuary for all the time that the usufruct lasts.

Art. 597. The taxes which, during the usufruct, may be imposed directly on the capital, shall be at theexpense of the owner.

If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which mayhave been paid in that character; and, if the said sums have been advanced by the usufructuary, heshall recover the amount thereof at the termination of the usufruct.

Taxes w/c pertain to the fruits obligation of the usufructuary (Art. 596)

Taxes w/c pertain to the capital obligation of the naked owner (Art. 597)

Only2 instances when usufruct has right of reimbursement & retention:

(1) taxes on capital advanced by the usufructuary; and

(2) extraordinary repairs

Rizal Mercado v.Hidalgo (67 Phil 608)

Reimbursements should be made, not immediately after advancing

but at the TERMINATION of the usufruct, provided the advance had

been made voluntarily.

Special Usufructs:

(1) Usufruct over heads of cattle

Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall beobliged to replace with the young thereof the animals that die each year from natural causes, or arelost due to the rapacity of beasts of prey.

If the animals on which the usufruct is constituted should all perish, without the fault of theusufructuary, on account of some contagious disease or any other uncommon event, the usufructuaryshall fulfill his obligation by delivering to the owner the remains which may have been saved from themisfortune.

Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, theusufruct shall continue on the part saved.

Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as thoughconstituted on fungible things.

Rules (read Paras book pp. 609-610):

There is an obligation to replace when

1.) some animals die from natural causes; or

2.) some animals are lost due to the rapacity of beasts of prey

PARAS: the remains of the dead animals belong to the usufructuary

and the lost should be replaced with the young produced thereof.

There is no obligation to replace when

1.) there is a total loss of the animals because of some unexpected or

unnatural loss (i.e. pestilence) or any other uncommon event

Provided that the usufructuary has no fault; or

2.) there is a partial loss (here, the usufruct continues on with the

remainder with the same conditions as with previous number)



11/23

Notes of Sir Torregosas discussion and

Check:Paraspages631 634 &LakasAtenista page

75regardin

Usufruct (2) Usufruct over fruit-bearing trees and shrubs

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

The usufructuary can use dead trunks and those cut off/uprooted by accident by must

replace them with new plants.

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

A) If it is too burdensome or impossible to replace the trees and shrubs

Usufruct may use the trunks but should replace them (art. 575);

Or he may leave the dead, fallen, or uprooted trunks at the owners disposal,

and demand that the latter remove them or clear the land.

B) If it is slightly burdensome to replace them, the usufructuary MUST replace them and

cannot demand clearance of the land by the owner.

Loss/Destruction of Property

Rule on partial loss:

Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on theremaining part.

Rules on total loss [refer to Paras pp 629 631]:

Total loss ends the usufruct (Art. 603); but note the following articles:



12/23

Notes of Sir Torregosas discussion and Usufruct

Art. 607. If the usufruct is constituted on immovable property of which a building forms part, and thelatter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make useof the land and the materials.

The same rule shall be applied if the usufruct is constituted on a building only and the same should bedestroyed. But in such a case, if the owner should wish to construct another building, he shall have aright to occupy the land and to make use of the materials, being obliged to pay to the usufructuary,during the continuance of the usufruct, the interest upon the sum equivalent to the value of the landand of the materials.

Art. 608. If the usufructuary shares with the owner the insurance of the tenement given in usufruct,the former shall, in case of loss, continue in the enjoyment of the new building, should one beconstructed, or shall receive the interest on the insurance indemnity if the owner does not wish torebuild.

Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenementalone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving alwaysthe right granted to the usufructuary in the preceding article.

(A) Usufruct on BOTH building and land (but the building is destroyed in any manner

whatsoever before the expiration of the period of the usufruct):

1) The usufruct on the building is ended, but the usufruct on the land

continues;

2) The usufructuary is still entitled to the use of the land and the use of

whatever materials of the house remain.

3) If the naked owner wants to rebuild but the usufruct refuses, it is the

usufructuary who prevails for the remainder of the period.

(B) Usufruct on the building alone (but the building is destroyed before the termination

of the period):

1) The usufruct on the building ends, but the usufructuary can still make use o

whatever materials of the house remain;

2) The usufructuary is entitled to the use of the land;

3) But since there was not usufruct on the land before the loss, the naked

owner has preferential right to its use [If the naked owner wants to rebuild, he

has the right to occupy the land and make use of the materials, with the

obligation to pay --during the remainder of the period of the usufruct interest

on 1the materials and 2the land.]



13/23


14/23

Notes of Sir Torregosas discussion andEasement/servitude TOLENTINOs view: While an easement of right of way is essentially

apparent and discontinuous, such easement can be acquired by

prescription when:

1) there is permanent existence of sign which is considered a continuing

assertion of a dominant owner over the servient estate;

2) if the immovable can be acquired by prescription, the easement can be

acquired as an accessory.

Classification of Easements:

As to the recipient of the benefits

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

(1) Real easement constituted in favor of a dominant estate and may be use for all

purposes that will meet the needs of the dominant estate.

(2) Personal estate constituted in favor of a specific person, community/group of

persons even if there is no dominant estate.

RULE:

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

The rights and obligations of the dominant owner is defined by the title which

constitutes the easement.

If general whoever becomes the owner has the right to use

If specific only those persons specified, and not successors;

in other words, the easement, if specific, should only be used in the purpose for

which it was constituted unless use in a different purpose will not increase the

burden of the servient estate.

Case ofValderrama v. North Negros Central(48 Phil 482)

Another case states that you cannot discriminate against those specific

individuals when easement was made in favor of the community.

As to its exercise

Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent.

Continuous easements are those, the use of which is or may be incessant, without the intervention of any act ofman.

Discontinuous easements are those which are used at intervals and depend upon the acts of man.

Apparent easements are those which are made known and are continually kept in view by external signs thatreveal the use and enjoyment of the same.

Nonapparent easements are those which show no external indication of their existence.

(1) Continuous without human intervention (i.e. light & view)

(2) Discontinuous depend on the acts of man (i.e. road right of way)

Sir Torreg: All easements, for the purposes of establishment require human

intervention, but not all easements require human intervention for the purposes o

existence)



15/23

Notes of Sir Torregosas discussion andEasement/servitude As to object

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing

something to be done or of doing it himself, and a negative easement, that which prohibits the owner of theservient estate from doing something which he could lawfully do if the easement did not exist.



16/23

Notes of Sir Torregosas discussion andEasement/servitude As to indication

(1) Apparent

(2) Nonapparent

As to Nature

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

(1) Legal

(2) Voluntary

Modes of Acquiring Easements

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of tenyears.

Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time ofpossession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate,or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and innegative easements, from the day on which the owner of the dominant estate forbade, by an instrumentacknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawfulwithout the easement.

Art. 622. Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired

only by virtue of a title.

Art. 623. The absence of a document or proof showing the origin of an easement which cannot be acquired byprescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment.

Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by theowner of both, shall be considered, should either of them be alienated, as a title in order that the easement maycontinue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary shouldbe provided in the title of conveyance of either of them, or the sign aforesaid should be removed before theexecution of the deed. This provision shall also apply in case of the division of a thing owned in common by two ormore persons.

Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted.

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

(1) By Title

title means any juridical act or law sufficient to create the encumbrance/easement

(2) By Prescription

Applies only to continuous and apparent easements (except that falling under Tolentinos

view)

In this case, you do not need to consider good faith-bad faith rules

Only requirement: 10 continuous years and adverse possession

For positive easement, the 10 years counted from the time easement was

actually exercised (i.e. opening a window);

For negative easement, the 10 years is counted from the time of notaria

prohibition

NOTARIAL PROHIBITION a written communication sent by the

owner of the dominant estate to the owner of the servient estate

subscribed and sworn under oath and duly notarized.

Reviewer in Property by Enaski

The right to claimeasement doesnot prescribe aslong as there is a

need for theeasement

16


17/23

Notes of Sir Torregosas discussion andEasement/servitude(3) apparent sign

This is not a real easement because originally there was only one

person involved;

If conveyance is silent as to whether apparent sign/easement may be enjoyed by the

buyer, it continues to exist until removed.

May ripen into a real easement when (check next page)

Situation Will ripen into real easement when

a) 2 or more properties previously belonged to 1 person

and that person sold/transferred the property to 2 or

more persons

1) When apparent sign is not removed before

alienation; or

2) Such sign was registered before sale (???)

EXCEPT:

1) There is a stipulation to the contrary;

2) Apparent sign is removed before execution

before conveyance

b) There is 1 estate which was previously owned by 1

person and portions of which were sold to 2 or more

persons

c) Property owned in common is partitioned by the co-

owners

NOTE: These rules will not apply if (a)the property is sold to only 1 buyer; or (b)there were

2 owners at the start. In latter (b) where 2 owners at start apply rule on prescription

Remedies on how to prove evidence of easement:

1) Deed of Acknowledgment by the owner of the servient estate

2) Court Decision

The court only confirms the existence of easement, but is not a source of easement.

Modes of extinguishment of easements:

Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant and servient estates;

(2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the dayon which they ceased to be used; and, with respect to continuous easements, from the day on which an act contraryto the same took place;

(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive ifthe subsequent condition of the estates or either of them should again permit its use, unless when the use becomespossible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;

(4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;

(5) By the renunciation of the owner of the dominant estate;

(6) By the redemption agreed upon between the owners of the dominant and servient estates.

Non-user must be voluntary on part of the owner of the dominant estate for 10 years and

intermittent

Impossibility of use there must be cause other than the fault of the dominant estate

Renunciation has to be public and peaceful (Sir thinks this is the better view)

Right of Way (Arts. 649 657)

By nature, it is a legal easement, but it can also be a voluntary one

If legal easement the following conditions must be complied:

(a) Property is surrounded by estates of others;

(b) No adequate outlet to the a public highway [danger-convenience-cost];

(c) Must be payment of proper indemnity (Art. 655);



18/23

Notes of Sir Torregosas discussion andEasement/servitude (d) Established at the point least prejudicial to servient estate

(Art. 650);

(e) Isolation must not be due to the proprietors own acts

(Art. 649); and

(f) Demandable only by the owner or one with a real right (i.e. usufructuary).

If voluntary easement the conditions do not need to be present

Conditions (re-stated):

1. Dominant estate must be isolation (no adequate outlet to public highway)

TEST: Necessity of dominant owner, not convenience

The width may be adjusted according to need

The outlet does not have to be land-based

The moment the necessity ceases, the compulsory easement is

terminated.

Does not apply if the easement is also a voluntary easement.

2. Continuous and apparent

Susceptible to prescription

VIEW 1: notarial prohibition makes what is not apparent, apparent.

VIEW 2 (Tolentino): when a negative easement results from an

apparent easement.

Light and View (Arts. 667 673)

Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon ortowards an adjoining land or tenement can be made, without leaving a distance oftwo meters between thewall in which they are made and such contiguous property.

Neither can side or oblique views upon or towards such conterminous property be had, unless there be adistance ofsixty centimeters.

The nonobservance of these distances does not give rise to prescription.

What if the distances prescribed for these openings are not observed?

Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoininga tenement or piece of land belonging to another, can make in it openings to admit light at the height of theceiling joints or immediately under the ceiling, and of the size ofthirty centimeters square, and, in everycase, with an iron grating imbedded in the wall and with a wire screen.

Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can closethem should he acquire part-ownership thereof, if there be no stipulation to the contrary.

He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to thathaving such openings, unless an easement of light has been acquired.

Non-compliance owner of other estate can ask for closure of the opening within

10years from the time the opening was made.

??? does the lapse of 10 years to ask for closure amount to prescription?

TOLENTINO: may not amount to prescription (NOTE THIS)

Trees (Arts. 679 681)

Make sure branches do not overextend (but the other party should ask the owner of the tree to

have the branches cut or else he may be liable for malicious mischief)

If the trees are fruit-bearing, you cannot remove the fruits for yourself; but if they fall you own

them.



19/23

Notes of Sir Torregosas discussion and Donation What is a donation?

Art. 725. Donation is an act of liberality whereby a person disposes gratuitously of a thing or right infavor of another, who accepts it.

2 Types of Donations:

(1) Donations inter vivos

Transfer of ownership is immediate

Once the donees acceptance is made known to the donor (perfected), the donee

becomes the absolute owner even if the donation is subject to a suspensive condition

(2) Donations mortis causa

Transfer of ownership shall take effect only upon the death of the donor

Donation in praesentito be delivered in futuro

Art. 729. When the donor intends that the donation shall take effect during the lifet ime of the donor,though the property shall not be delivered t ill after the donor's death, this shall be a donation inter

vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to thedonee, unless the donor provides otherwise.

The donation of property is postponed upon donors death

Ownership is transferred when donees acceptance is communicated to the donor

It is also considered donation inter vivos

When simultaneous delivery is needed: only when there is an oral donation of a property

less than PhP 5k

Art. 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document representing theright donated.

If the value of the personal property donated exceeds five thousand pesos, the donation and theacceptance shall be made in writing, otherwise, the donation shall be void.

Kinds of donation inter vivos:

(A)

1. without strings attached (purely gratuitous) Simple

2. Made on account of the donees merits Remuneratory

3. Made on account of past services rendered Remuneratory

(B) with burden

1. less than the value of the property mixed donation

2. equal to the value of the property onerous

Sir Torreg: If donation is onerous, it is not a donation and so apply the law on

contracts i.e. gratuitous donation simply ignore illegal stipulation; but i

onerous donation with an illegal stipulation void

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

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


20/23

Notes of Sir Torregosas discussion and Donation

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

The imposition of resolutory conditions may give a ground to terminate the donation inter vivos

Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee.


21/23

Notes of Sir Torregosas discussion and Donation Requisites:

Art. 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document representing the rightdonated.

If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptanceshall be made in writing, otherwise, the donation shall be void.

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document,specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall nottake effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and

this step shall be noted in both instruments.

Formality

Immovable

must be notarized and in writing (public instrument)

Personal property

Less than 5k oral acceptance + simultaneous delivery OR in writing only

5k or more must be in writing

Acceptance

In the same form and manner by which it was effected

If acceptance in separate instrument, it must also have notification to the donor

Cause

If legitimate no problem

If for an illegitimate cause, there are 2 views:

VIEW 1: donation is void

VIEW 2: donation is void, but there can be no return of the thing because of

the principle ofin pari delicto

Capacity

Must be present at the time the donation is perfected.

Of the donor

Should have the right to dispose of property

Has the right to contract

Of the donee

Should not be specifically disqualified by law

VOID DONATIONS (Art. 739)

(1) Affair Those made between persons who were guilty of adultery o

concubinage at the time of the donation;

If during the affair donation is void;


22/23

Notes of Sir Torregosas discussion and Donation If it terminates the affair donation is valid.

(2) Illicit Relationship Those made between persons

found guilty of the same criminal offense, in consideration

thereof;

(3) Bribery Those made to a public officer or his wife, descedants and

ascendants, by reason of his office.


23/23

Notes of Sir Torregosas discussion and Donation

Object

If donor donates all of his present property, he may do so as long as

the legitime of his compulsory heirs are not disturbed.

Art. 750. The donations may comprehend all the present property of the donor, or part thereof, providedhe reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who,at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without suchreservation, the donation shall be reduced in petit ion of any person affected.

Art. 751. Donations cannot comprehend future property.

By future property is understood anything which the donor cannot dispose of at the time of the donation.

Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation,more than he may give or receive by will.

The donation shall be inofficious in all that it may exceed this limitation.

Art. 760. Every donation inter vivos, made by a person having no children or descendants, legitimate orlegitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article,by the happening of any of these events:

(1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even thoughthey be posthumous; (BIRTH)

(2) If the child of the donor, whom the latter believed to be dead when he made the donation,should turn out to be living; (REAPPEARANCE)

(3) If the donor subsequently adopt a minor child. (ADOPTIION)

Art. 761. In the cases referred to in the preceding article, the donation shall be revoked or reduced insofar as itexceeds the portion that may be freely disposed of by will, taking into account the whole estate of the donor atthe time of the birth, appearance or adoption of a child.

Grounds for revocation/reduction of the donation:

1.) Ingratitude (Art. 765)

Prescribes in: 1 year from donors knowledge

Gen. Rule: action is intransmissible to donors heirs

Exception: if the act resulted in the immediate death of the donor, when donor is

incapacitated or when during the pendency of the action the donor dies.

2.) Birth-Adoption-Reappearance [BAR] (Art. 760-763)

action prescribes 4 years from the BAR

3.) Violation of condition (Art. 764)

Prescribes in: 4 years from non-compliance of the burden imposed on donee

NOTE: rules on prescription and duty of donee to return fruits

If BAR or Ingratitude return fruits accruing from the time the action is filed

If Non-compliance of conditions imposed return the fruits received after failure to

fulfill the condition(s)

In case of money donation fruits shall mean the legal rate of interest

Other terms mentioned by Sir:

Collation

If the donee happens to be a compulsory heir, he must bring back (collate) the value of

the property donated (Art. 1061)

Preference given to earlier donations (Art. 773)

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