02 - Syllabus Property Discussion Guide

Discussion Guide Property
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I. INTRODUCTION
A. What is Property?
1. In General Term
2. Property is a system of managing resources
a) Capitalism
b) Socialism
c) Tragedy of the Commons
3. Property is an entitlement to resources protected by legal institutions.
4. Purpose of Properties
a) Management of Resources
b) Set of Incentives to People
c) Facilitates Contracts
d) Individual Autonomy
e) Preserves liberty
5. Issues and Concerns
a) Divides the world into parcels
b) Monopoly
c) Commodification of values
d) Promotes inequality
B. Theories on Property
1. Protect First Possession
2. Promote Labor
3. Utilitarian / Economic Theory
4. Promote Democracy
5. Personhood
C. Legal Theories
1. Natural Law
2. Property as Law of Things
3. Legal Positivism
4. Right to Exclude
5. Bundle of Rights
D. Property under the Civil Code
1. Rights Over Things
a) Things and Property Distinguish
b) Rights as Property
2. Kinds of Property
a) As to Ownership
(1) Common/Res Nullious
(2) Public Dominion
(3)Private Property
b) As to Physical Characteristics
(1)Immovable Property (Real Property)
(a)Enumeration of Immovable Property (Art. 415, NCC)
(b) Classes of Immovable Property
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(c)Extent of Ownership (Art. 437, NCC)

(2)Movable Property (Personal Property)
(a)Enumeration under Art. 416 and 417, NCC
(b)Consumables or Non-Consumables under Art. 418, NCC
(c)Fungible or Non-Fungible
(3)Distinction
(a)Ownership Rights
i) Statute of Limitations
ii) Registration of ownership and interest
(b)Taxation
i) Real property Taxation
ii) Taxation of Certain Movable Property
II. OWNERSHIP
A. What is Ownership
1. Definition
2. Constitute elements:
a) Exclusivity; and
b) Autonomy.
B. Acquisition and Loss of Ownership
1. How is Ownership Acquired
a) Mode of Acquiring Ownership
b) Kinds of Mode
(1)Original Mode
(2)Derivative Mode
(a)Transfer; and
(b)Constitution of Rights
(3)Acquisitive Prescription by Adverse Possession
2. Loss of Ownership
a) Modes of Loosing Ownership
(1)Voluntary
(2)Involuntary
C. Rights of Ownership
1. Object of Ownership
2. Right to Exclude
a) In General under Art. 429 of the NCC
b) Right of Enclosure and Fences
c) Self-Help
d) Resort to Judicial Process if Possession is Loss
3. Right to Use
a) In General under Art. 428 of the NCC
(1) Right to Enjoy Things; and
(2) Right to its Product and Increase (Principle of Accession)
b) Exception
(1) Use of Property has a Social Function
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(2) Distributive Justice

4. Right to Transfer
a) Full Ownership
b) Use and other rights
5. Presumption
6. Limitations
D. Co-Ownership
1. Definition:
2. General Rule
3. On Right to Use
4. On Right to Exclude
5. On Right to Transfer
6. On Right to Vindicate
7. Right of Partition
8. Obligations of Co-Owners
9. Renunciation of Shares
10.Special rules on co-ownership of buildings with different Stories
11.Other forms of Co-Ownerships
III.POSSESSION
A. In General
1. Definitions
a) Possession in General
b) Actual Possession
c) Adverse Possession
d) Acquisitive Prescription
e) Bonafide Possession
f) Constructive Possession
g) Exclusive Possession
h) Hostile Possession
i) Notorious Possession
j) Peaceable Possession
2. Definition under the Civil Code
3. How is Possession Exercise
B. Acquisition of Possession
1. How possession is acquired
2. Who can acquire possession
C. Effects of Possession
D. Loss of Possession
1. General Rule
2. Presumption
E. Adverse Possession
1. Possession in Bad Faith
a) Definition
b) Effects of Possession in Bad Faith
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2. Adverse Possession and Prescription

a) Concept
b) Elements
c) Effects
IV.ORIGINAL MODES OF ACQUIRING OWNERSHIP
A. Occupation
1. Definition
2. Conditions for Acquisition
3. Special Rules
4. Republic Act No. 9147 (Wildlife Resources Conservation Act and
Protections Act)
a) State Policy
b) Illegal Acts
c) Wildlife Permits
5. Important Roman Law Concepts
B. Accession
1. General Rule
a) Accession Discreta
b) Accession Continua
c) Presumptions
2. Accession in Immovable Property
a) General Rule - All that is built, planted or sown on land is presumed to
belong to the owner.
b) Rule on Builder, Planter and Sower on Lands of Another
(1)In Good Faith
(2)In Bad Faith
(3)If both are in bad faith
c) Rules on Accession in Movable Property
(1)General Rule - Owner of Principal Acquires Accessory
(2)Definition of Principal
(3)Rule on Separation
(4)Rule on Acquisition
d) Rule on Owners of Materials
e) Rule on Third Persons
C. Intellectual Creation
1. General Principles:
a) Properties that are created by the human mind;
b) Creation are transformed into physical objects:
c) Three (3) types of Intellectual Creation
d) System of allocation of rights:
2. Copyright
a) Objective
b) As Incentive to creators
c) What is being protected
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d) Copyright Infringement
3. Patent
a) Objective
b) Utilitarian Mandate
c) What can be patented
d) Elements
e) Patents Infringement
4. Trademarks
a) Objective
b) Trademark Infringement
V. DERIVATIVE MODES OF ACQUIRING OWNERSHIP
A. Right to Transfer
B. Kinds of Transfers
1. Transfer of Ownership
a) Sale/Barter/Exchange
b) Donation
c) Succession
2. Constitution of Rights
a) Lease
b) Usufruct
C. Donation
1. Concept
2. Kinds
a) Simple
b) Remuneratory
c) Conditional
d) Onerous
e) Intervivos and Mortis Causa
3. Essential Elements of Donation
4. Capacity
5. Void Donations
6. Formalities
7. Effects of Donations and Limitations
8. Revocation and Reduction of Donations
D. Lease
1. Concept
2. Distinguished from Sale and Usufruct
3. Obligation of Lessor
4. Obligation of Lessee
5. Assignment of Lease
6. Sale of Lease property
7. Termination
8. RA No. 7652
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9. Rent Control Acts (Batas Pambansa Blg. 877 and Republic Act Nos. 6643,
6828, 7644, 8437, 9161, 9341 and 9653)
E. Usufruct
1. Concept
2. Rights and Obligation of the Owner
3. Rights of the Usufructuary
4. Obligation of the Usufructuary
5. Extinguishment of Usufruct
VI.INTERFERENCE TO PROPERTY (Trespass and Nuisance)
A. Distinguish Trespass from Nuisance
B. Trespass
C. Concept:
1. Causes of Action
2. Remedies in Trespass in Real Properties
a) Self Help (Art. 429, NCC)
b) Criminal Prosecution
c) Civil Action for recovery of Possession
(1)Forceable Entry and Unlawful Detainer
(2)Accin Publiciana
(3)Civil Action Recovery of Ownership and Possession
(4)Writ of Possession
3. In Personal Property
c) Replevin
D. Nuisance
1. Concept
2. Nuisance according to the object or objects that it affects (Art. 695, NCC)
a) Public Nuisance
b) Private Nuisance
3. Nature
a) Nuisance per se
b) Nuisance per incidens
4. Easement against nuisance
5. Remedies
a) Prosecution under the Penal Code
b) Civil Action
c) Abatement of Public Nuisance without judicial proceeding
(1)District Health Office determines whether or not abatement without
judicial proceedings is the best remedy against a public nuisance
(Art. 702, NCC).
(2)By Private Persons (Art. 704, NCC)
(3)Private Nuisance by Private Persons (Art. 706)
d) Torts
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(1)Concept of Tort
(2)Private Nuisance as Tort
VII. LIMITATIONS OF OWNERSHIP
A. Injurious Use
B. Easements and Servitudes
1. In General
a) Definitions:
(1)Dominant Estate
(2)Servient Estate
b) Kinds of Easements
(1)Continuous or Discontinuous
(2)Apparent or Non-apparent
(3)Positive or Negative
(4)Legal and Voluntary
(5)Legal and Private Easements
c) Modes of Acquiring Easements
(1)By Prescription
(2)By Title
d) Rights and Obligations (Article 627-630, NCC)
(1)Dominant Estate
(2)Servient Estate
e) Extinguishment of Easements
f) Special Law: Presidential Decree No. 1096 (National Building Code of
the Philippines)
2. Easement of Right of Way
a) Articles 649 to 657 of the Civil Code
b) Definition - The right to pass through property owned by another. ROW
can be established by contract, by longstanding use or by law.
c) Compulsory Right of Way
d) Executive Order No. 621, s. 1980 (Amended EO 113, s. 1955)
3. Easement of Party Wall (Art. 658-666, NCC)
a) The easement of party wall shall be governed by the provisions of this
Title, by the local ordinances and customs insofar as they do not
conflict with the same, and by the rules of coownership (Art. 658,
NCC).
b) Presumption
c) Renunciation
d) Repairs
e) Use
4. Easement of Light and View
a) Right to Light:
b) Covered by Articles 667-673 of the NCC
(1)General Rule (Art. 667, NCC)
(2)Two Meter Rule
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(3)Exception to the Two Meter Rule

(4)How distance is measured:
(5)Covered by Chapter VII (Light and Ventilation) of the National
Building Code of the Philippines (Presidential Decree No. 1096)
c) Easement of Drainage of Buildings (Arts. 674-676, NCC)
(1)General Rule
(2)Easement of Drainage
(3)Section 904. Storm Drainage System (P.D. No.1096)
(4)Revised National Plumbing Code of the Philippines.
d) Easement on Distances (Articles 677-681, NCC)
(1)Meaning
(2)Construction near fortresses
(3)Building of improvements and structures that may do damage to
neighbouring estates
(4)Branches of trees extending and fruits falling over neighbouring
estates
e) Easement on Nuisance (Arts. 682-683, NCC)
f) Meaning
g) Least possible annoyance to the neighbourhood
h) Dangerous and ruinous buildings are also nuisances under P.D. 1096
5. Easement of Lateral and Subjacent support (Arts. 684-687)
a) Meaning in law
b) Subsidence
c) Excavations under the New Civil Code
d) Excavation under PD No. 1096
6. Easement relating to waters
a) Characterization of Water
(1)Diffuse surface water
(a)Common enemy rule
(b)Civil law rule
(c)Reasonable use
(2)Naturally flowing water
(a)Prior appropriation theory
(b)Natural flow theory
(c)Reasonable use
(3)Percolating water
(a)Definition
(b)Absolute theory
(c)Co-relative rights theory
(d)Reasonable use theory
(4)Articles 637-648 of the NCC
(a)General Rule
(b)Easement of Aqueduct
(5)Three (3) meter Easement for Navigation
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(6)Building of Dam for Diversion of Water

(7)Building of Dam for Diversion of Water
C. Private Property vs. The State
1. Police Power
a) Land Use Regulations/Zoning
(1)In General
(2)Land Use Regulation
(3)Zoning
(4)Laws on Land Use in the Philippines
b) Environmental Regulations
(1)Background
(2)Property and Ecology
(3)Theories
(4)Environmental Laws in the Philippines
2. Eminent Domain
3. Taxation
D. Covenants, Conditions and Restrictions
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I. INTRODUCTION
A. What is Property?
1. In General - Property is a general term for the rules that govern people's access
to and control of things like land, natural resources, the means of production,
manufactured goods, including texts, ideas, inventions, and other intellectual
products.
2. Property is also a system of managing resources:
a) Capitalism
(1) Pre-eminence of private ownership;
(2) Citizens have private property;
(3) Market forces decides what is best to do with resources;
(4) Market economy.
b) Communism/Socialism (1) Preeminence of state ownership;
(2) Citizens have limited property, the state owned most of the resources
(Super Regalian Doctrine)
(3) The state decides what is best to do with resources;
(4) Planned economy
c) Tragedy of the Commons1 - a situation where there is no property rights;
what there is there is a shared resource system (common ownership) where
individual users acting independently according to their own self-interest
behave contrary to the common good of all users by depleting that resource
through their collective action.
3. Property is an entitlement to resources protected by legal institutions.
a) Property delineates the rights that people have to control and derive value
from resources in the world.
b) Any society with an interest in avoiding conflict between its member
regarding access and control to resources needs a system of rules.
c) Without rules, cooperation, production, and exchange are virtually
impossible, or possible only in the fearful and truncated forms we see in
black markets.
d) It includes legally enforceable claims to non-tangible or non-object
resources.
4. Purpose of Properties
a) Institution of property provides for an effective way of managing societys
resources. - Decentralisation in the management of resources and permits
owners-managers to specialise in developing the knowledge and skill
pertinent to their particular resources.
1Garret
Hardin, Tragedy of the Commons, 162 Science 1243 (1968)
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b) Provides a powerful set of incentives for person to make investments in and
engage in effective management of resources they control. Reaping what
you sow.
c) Facilitates the making of contracts regarding the use and control of
resources. - Exchange of property rights, we know who use and control the
resources.
d) It is a source of individual autonomy - private individuals controls the
direction of their lives because they have the means; critical to personal
identify or to the development of individual personality
e) It is important to the preservation of liberty and a source of countervailing
power to the power of the State. With private property, individuals can
organized oppositions, if the government controls all the resources,
autocracy.
5. Issues and Concerns
a) Division of the world into separate parcels of lands and discrete object of
personal property, each with its individual owners. i.e. effects of externalities
to other property owners
b) Monopoly - confers monopoly of control on someone with respect to a
particular resources that was awarded to him/her.
c) Commodification of values and social relations. The more we extend the
sphere of of property, the more we think about the world in terms of ownerobject relation.
d) It promotes inequality. Allows property owners to exclude others from using
and enjoying resources that he/she owns.
B. Theories on Property
1. Protect First Possession
a) Rules of first possession are the regulation of a competitive process of
acquiring unowned resources.
b) It is the allocation of property rights to the first possessor.
(1) Intended to reduced conflict and unnecessary competition;
(2) Much less wasteful of resources if a clear winner emerges early on in the
process of appropriation;
(3) Notice to others that a claim is being asserted is important for #2; the lack
of notice might lead others to compete with the original hunter;
(4) The end result of first possession is private property
c) Rule on Discovery - the thing is awarded to those who first made a claim on
the resources
2. Promote Labor
a) John Locke resigned the each person is entitled to the property produced
through his own labor. Locked argued that when a person mixed his own
labor with natural resources which are unowned, he acquired property rights
in the mixture. Before labor was added, the thing had no value, once labor is
mixed, the thing becomes private property.
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b) More applicable in areas where there is no established ownership, i.e. U.S.
3. Maximise Societal Happiness - Utilitarian / Economic Theory
a) We recognized property in order to maximise the overall happiness of
society; to best promote the welfare of all citizens. (Jeremy Bentham)
b) Law and Economics Approach - An efficient method of allocating valuable
resources in order to maximise one particular face of social happiness,
wealth, and measured in currency. Property exists to ensure that owners use
resources in an efficient manner - that is, in a manner which maximises
economic valued defined as a persons willingness to pay.
c) In order for an economy to reach its full potential, there are three (3) basic
features which its system of property rights must have: 2
(1) Universality - all valuable, scarce resources must be owned by someone.
An economy where certain resources cannot be use by someone would
be smaller than the same economy where this resources could be used.
(2) Exclusivity - If an owner is unable to exclude others from the use and
enjoyment of the property, then the owner has no incentive to improve
the property.
(3) Transferability - The more efficient person should be allowed to acquire
the property of the less efficient one for mutual benefit. The right to
transfer is vital for efficiency in our market economy because it helps
ensure that property is devoted to its most valuable use. What is the
extent of the restrictions
d) Harold Demsetz Theory of Property Rights
(1) Property is an institution for internalizing externalities associated with
the use of scarce resources. An externality is some benefit or cost
generated by one persons activity that is involuntarily bored by some
other person.
(2) The Demsetz theory posits that another way of internalizing externalities
associated with the use of resources is by establishing property rights in
the resources. Property rights, as Demsetz understood them, are rights
to exclude others from specific things or resources. By creating such
exclusion rights and converting them on an identified owner, man of the
benefits and costs associated with the use of the resource - which
otherwise would be experienced as externalities by the others - will
instead be borne by the owner. By giving the owner exclusive control
over the resource, decisions that affect the value of the resource in a
positive or negative direction will be captured by the owner.
(3) The owner thus has a powerful incentive to take these benefits and costs
into account in deciding how to use the resource.
(4) Setting Up of Institutions to Protect Property Rights
Howard Gensler, Property Law as an Optimal Economic Foundation, 35 Washburn L.J. 50, 51-52
(1995)
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(a) It is necessary to define resources subject to ownership, specify how
owners are identified, set up institutions to resolve disputes over
ownership, and devise mechanisms for enforcing ownership rights.
(b) If the costs of establishing and enforcing property rights exceed the
benefits of internalisation from establishing and enforcing property
rights, resources will remain in the unowned (open-access) state.
Thus, for a thing to be governed by property regime, the following
should be present:
(c) There must be enough demand for the resource relative to its supply
that internalization of externalities associated with use of the resource
will produce significant benefit.
(d) If something is regarded as having no value, or negative value, it is
also unlikely tat the thing will be treated as property.
(e) Property in a given class of resource is unlikely to exist if there are
high costs of establishing and enforcing such right. Some assists are
easier to delineate and enforce as property than other assets.
4. Promote Democracy
a) In a state in which private property does not exist, citizens are dependent on
the good will of the government. They come to the state as beggars rather
than right holders.
b) Any challenge to the state may be stifled or driven underground by virtue of
the fact that serous haleness could result i the withdrawal of the goods that
give people basic security.
c) A right to private property, free from government interference, is in this sense
a necessary basis for a democracy.3
5. Personhood
a) Georg Hegel - argues that property is necessary for an individuals personal
development. Each person has a close emotional connection to certain
tangible things, which virtually become part of ones self.
b) Margaret Jane Radin - the gauge of the strength or significance of
someones relationship with an object by the kind of pain that should be
occasioned by its loss; pain that cannot be relieved by a simple objects
replacement; because of this connection to the property, the owner should
be accorded a broad liberty with respect to control of that thing.
c) All things equal, a right to personhood priority should be given priority over a
conflicting claim by the owner of non-personhood property. 4
C. Legal Theories
a) Natural Law
(1) A philosophical system of legal and moral principles purportedly deriving
from a universalised conception of human nature or divine justice rather
Cass R. Sunstein, On Property and Constitutionalism, 14 Cardozo L. Rev. 907 (1993)
Margaret Jane Radin, Property and and Personhood, 34 Stan. L. Rev. 957 (1982)
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than from legislative or judicial action; moral law, embodied in the
principles of right and wrong.
(2) Thomas Aquinas concludes that, given certain detailed provision
(a) it is natural for man to possess external things
(b) it is lawful for a man to possess a thing as his own
(c) the essence of theft consists in taking another's thing secretly
(d) theft and robbery are sins of different species, and robbery is a more
grievous sin than theft
(e) theft is a sin; it is also a mortal sin
(f) it is, however, lawful to steal through stress of need: "in cases of need
all things are common property."
b) Property as Law of Things
(1) The Latin expression for this is that property rights are in rem, which
comes from the word res or things, and indicated that property rights
pertains directly to things rather than to people. It is universally binding
on all who encounter the object.
(2) Property needs to be general, stable, and give proper notice on the
widest possible audience. Achieving generality, stability, and notice
requires managing information: facilitating coordination on this scale
requires simplicity and a degree of formalism precisely because the
audience is in rem.5
(a) Property Rights - bind the world, not just a particular pair of parties.
Property in the broadest sense is a set of claims that people have in
resources that correspond to duties of respect in others. It is in rem
because the right attaches to the object, rather than to particular
people, it is universally binding on all who encounter the object.
(b) The Duty to Keep Off - The other side of the owners right to exclude,
use and transfer properties, it is the duty of the other members of
society to keep off, to respect such rights, unless the owner has given
permission to enter or use the thing. Property in the broadest sense is
a set of claims that people have in resources that correspond to
duties of respect in others generally.
(c) Distinguished from in personam" - In Contracts for instance, rights
are created by particular agreements between particular persons
which creates obligations binding on these persons with respect to
each other and no one else. These are personal rights and are
binding only on the parties to the contracts. Personal rights do not exit
automatically as a matter of law. They are only created when persons
engage in certain acts that creates obligations specified by the
contract and binding only on parties to the contract.
(3) In rem proceeding - the jurisdiction of the court over a thing. In rem
proceeding allows a person to place some things under the authority of
5
4 Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV.
1105, 114857 (2003).
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the court, which will, after providing to all interested claimants the
required notice and opportunity to be heard, make a definitive
adjudication of who owns the thing.
(4) Property as Notice - Property law comes in a standard set of forms and
serves as notice to everyone, depending on the physical nature and
character, and location of the property on how to behave. The in rem
aspect of property gives information to large and indefinite audience on
how to interact with each other with regard to the thing.
c) Legal Positivism
(1) Property laws delineate the rights people have to control and derive value
from resources in the world. For legal scholars, we use property to refer
to entitlements to resources protected by formal legal institutions. The
theory that legal rules are valid only because they are enacted by existing
political authority or accepted as binding in a given society not because
they are grounded in morality or in natural law.
(a) Property laws tell us what is mine and what is not mine. It is reserved
for a legally protected entitlement.
(b) A thing is not property in the legal sense unless its holder could
vindicate his/her rights in the court of laws.
(c) Property rights are defined by the State
(2) Property rights are not absolute - Much of property law is devoted to
reconciling disputes between different owners or between an owner and
the community.
(3) Property rights evolve as law changes - A core value of our property
system is stability of title - the concept that property rights should be
certain and predictable. But the nature and scope of property do evolve
slowly over time, as chasing economic, technological and social
conditions gradually reshape the law. i.e. traditional notion that a land
owner held title to all the airspace above her land - the invention of
airplane ended the traditional notion.
(4) Property is closely related to rule of law. 6
d) Right to Exclude
(1) William Blackstone7 - the sole and despotic dominion which one man
claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe.
(2) Arguably one of the most significant and essential elements in defining
our understanding of what constitutes property. Historically, the right to
exclude concerns the relationship between people with respect to things,
such that the so-called owner can exclude others from certain activities
or permit others to engage in those activities and in either case secure
6
Henry E. Smith, Property, Equity, and the Rule of Law, June 14, 2013; accessed: http://
www.law.harvard.edu/programs/about/privatelaw/related-content/2013-working-paper-series/
smith_property-equity-and-the-rule-of-law_6-14-13.pdf
7
William Blackstone, Commentary on the Laws of England,
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assistance of the law in carrying out this decision. But, from a presentday perspective, the right has evolved beyond the legal constructs of
traditional property law to also encompass legal entitlements and benefits
possessed by one person over another irrespective of the legal
relationship between such person and the thing in which the right is
claimed.
(3) Primacy of the Right to Exclude 8 (a) Give someone the right to exclude others from a valued resource and
you give them property. Deny someone the exclusion right and they
do not have property.
(b) If one starts with the right to exclude, it is possible to derive most of
the other attributes commonly associated with property through the
addition of relatively minor clarifications about the domain of the
exclusion right. On the other hand, if one starts with any other
attribute of property, one cannot derive the right to exclude by
extending the domain of that other attribute; rather, one must add the
right to exclude as an additional premise.
(c) The right to use is an important attribute of property closely
associated with the right to exclude. At its core, the gatekeeper right is
the right to determine the use of resources, by exercising the power of
exclusion and inclusion. But the right to exclude cannot be derived
from the right to use.
(d) To determine whether or not someone who has the right to transfer
resources also has a general right to exclude others from the
resources, we need to know additional information about the scope of
their powers, specifically, whether they are owners. The right to
transfer, by itself, cannot lead us to this further information about
which incidents of property the transferor enjoys.
(4) Exception to the Right to Exclude
(a) Necessity
(b) Custom
(c) Public Accommodation Laws
(d) Anti-discriminatory Laws
e) Bundle of Rights
(1) Property as Bundle of Rights
(a) This school of thought denies the existence of any essential core tot
he concept of property. Rather, property is jest a word denoting a
bundle of rights or more metaphorically, a bundle of stick - in which
each individual stick (whether it be a right or privilege) can be added
or removed without necessarily changing the characterization of the
bundle as property.
Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. (1998)
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(b) The Legal Realist movement that started in the 1920 advance this
alternative view in order to debunk the notion of property as a natural
high protected by the Constitution against fundamental reform.
(c) Trinity of Rights - to exclude, to use and to transfer defines the core
property.
(d) The law shifted from giving the owner dictatorial control over who and
what to exclude or include, and instead seeks to prescribe rules about
permissible and impermissible uses that constrain all relevantly
situated owners. Exclusion shoes off into governance.
(2) Perspective and Analysis9 - At least since Blackstone, property rights
discourses has been plagued by absolutism, the notion that the right of
property should be defined as the sole and despotic dominion over the
res, to the total exclusion of the right of any other individual in the
universe. Property professors and courts generally refer to the collection
of rights that private property owners enjoy vis-a-vis other landowners
and the public as a bundle of sticks in an attempt to render rather
abstract concepts more concrete. The prevailing metaphor, however,
lends itself to a formalistic, absolutist conception of these interests,
implying that the stick, such as the right to devise or the right to convey,
are things therefore the composition of the bundle must be an
immutable and essential state of affairs. In contrast, many scholars insist
that property rights are neither static nor absolute. The recognition of
private property interest involves tradeoffs with community values and
egalitarian goals; therefore the exact composition of the bundle of sticks
must be recognized as a mediation between these interests. Moreover,
the palace struck is always tentative, subject to constant re-evaluation in
the light of current needs and norms.
(3) Countryside and Rights of Way Act (England and Wales) - Many
landowners in the United Kingdom have, in the past, strongly defended
their property rights. Even uncultivated and unenclosed land was formerly
heavily protected in some areas, mostly to preserve the land owner's
hunting or fishing rights. This in turn left the general public with little
access to natural areas. The Act implements the so-called "right to
roam" (also known as jus spatiandi) long sought by the Ramblers'
Association and its predecessors, on certain upland and uncultivated
areas of England and Wales. The act refers to areas of mountain, moor,
heath and down in addition to registered common land; not all
uncultivated land is covered. The Ramblers' Association works to
increase the rights of walkers in the United Kingdom and has been a
driving force behind the recent legislation increasing the public's access
to the wilderness.
D. Property under the Civil Code
1. Property as part of Civil Law
a) Family Relations
b) Obligations and Contracts
9
Sparkling and Coletta, Property - A Contemporary Approach, 2nd Edition, West (2012), p. 65-66
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c) Succession
d) Agency
e) Law of Torts
f) Property law
2.
Rights Over Things

a)
Things and Property Distinguish
b)
Rights as Property
(1) Real Rights
(2) Personal Rights
(3) Distinctions
3. Kinds of Property
a) As to Ownership
(1) Common/Res Nullious
(2) Public Dominion
(a) Property intended for public use (Art. 420, par. 1, NCC)
(b) Property for public service (Art. 420, par. 2, NCC)
(c) Property for the development of national wealth (Art. 420, par. 2,
NCC)
(d) Patrimonial property (Art. 421, NCC)
(3) Private Property
(a) All properties belonging to private persons either individually or
collectively (Art. 425, NCC)
i)
Sole ownership
ii) Co-ownership (Simple, Partnerships, Corporations, and other

forms of multiple ownership)
b) As to Physical Characteristics
(1) Immovable Property (Real Property)
(a) Enumeration of Immovable Property (Art. 415, NCC)
(b) Classes of Immovable Property
i)
Immovable by nature - paragraphs 1 and 8
ii) Immovable by incorporation - paragraphs 2,3,4, and 6

iii) Immovable by destination - paragraphs 4,5,6,7 and 9
iv) Immovable by analogy or by law - paragraph 10
(c) Extent of Ownership (Art. 437, NCC)
i)
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Includes the surface and everything under it and he can construct

thereon any works or make any plantations and exceptions which
he may deem proper, without detriment to servitudes and subject
to special laws and ordinances. He cannot complain of the
reasonable requirement of aerial navigation.

atty.erwin.tiamson
ii) Minerals are not included; Article XII of the Constitution
(1) Republic Act No. 7942 (Philippine Mining Act of 1991)
(a) Section 76. Entry into Private Lands and Concession Areas.
- Subject to prior notification, holders of mining rights shall
not be prevented from entry into private lands and
concession areas by surface owners, occupants, or
concessionaires when conduction mining operations
therein: provided, that any damage done to the property of
the surface owner, occupant, or concessionaire as a
consequence of such operations shall be properly
compensated as may be provided for in the implementing
rules and regulations: provided further, that to guarantee
such compensation, the person authorized to conduct
mining operation shall, prior thereto, post a bond with the
regional director used on the the of properties, the
prevailing rices in and around the area where the mining
operations are to be conducted, with surety or sureties
satisfactory to the regional director.
(2) Commonwealth Act No. 141 (Public Land Act)
(a) Section 110. Patents or certificates issued under the
provision of this Act shall not include nor convey the title to
any gold, silver, copper, iron, or other metals or minerals or
other substances containing minerals, guano, gum,
precious stones, coal, or coal oil contained in lands granted
thereunder. These shall remain to be property of the State.
(b) The prohibition applies also to lease of public lands under
Section 41. The lease of agricultural lands may be
cancelled after notice if the said lands is more valuable for
mineral extraction.
iii) Hidden Treasures (Art. 438/439)
(1) Hidden and unknown deposit of money, jewellery or other
precious objects (Personal Property) the lawful ownership of
which does not appear (Art. 439);
(2) Belongs to the owner of the land/building (Principle of
Accession);
(3) If by chance 1/2 belongs to the finder but not when he is a
trespasser; and
(4) The State ay acquire hidden treasure at their just price;
Ground: Science/Art
(2) Movable Property (Personal Property)
(a) Definition: Personal property is generally considered property that is
movable, as opposed to real property or real estate. In common law
systems, personal property may also be called chattels or personalty.
In civil law systems, personal property is often called movable
property or movables any property that can be moved from one
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location to another. This term is in distinction with immovable property
or immovables, such as land and buildings
(b) Enumeration under Art. 416 and 417, NCC
(c) Consumables or Non-Consumables under Art. 418, NCC
(d) Fungible or Non-Fungible
(e) Tangible and Intangible
i)
Tangible personal property refers to any type of property that can

generally be moved (i.e., it is not attached to real property or land),
touched or felt. These generally include items such as furniture,
clothing, jewelry, art, writings, or household goods. In some cases,
there can be formal title documents that show the ownership and
transfer rights of that property after a person's death (for example,
motor vehicles, boats, etc.) In many cases, however, tangible
personal property will not be "titled" in an owner's name and is
presumed to be whatever property he or she was in possession of
at the time of his or her death.
ii) Intangible personal property or "intangibles" refers to personal

property that cannot actually be moved, touched or felt, but
instead represents something of value such as negotiable
instruments, securities, service (economics), and intangible assets
including chose in action.
(3) Distinction
(a) The distinction between immovable and movable of property is
significant for a variety of reasons. Usually one's rights on movables
are lesser compare to one's rights on immovables.
i)
Statutes of limitations or prescriptive periods are usually shorter

when dealing with personal or movable property.
ii) Real property rights are usually enforceable for a much longer
period of time and in most jurisdictions real estate.
iii) Land Registration - ownership over immovables are registered in
government-sanctioned land registers such as title registries, i.e.
Torrens system of land registration, Spanish Mortgage Law, etc.
iv) Liens and interest registration - separate registries for immovable
and movable properties, i.e. registry of deeds and chattel
mortgage registry
(b) Taxation - An annual tax on the privilege of owning or possessing
immovable and certain personal property.
i)
Real Property Taxation - Land, Improvement and Machineries are

tax by the local government under Republic Act No. 7160 or the
Local Government Code of 1991.
ii) Motor Vehicles User Charge - motor vehicles are tax bt the
government under Republic Act No. 8795 (An Act Imposing a
Motor Vehicle Users Charge on Owners of All Types of Motor
Vehicles and for other Purposes) Page 20 of 67

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iii) The distinction between tangible and intangible personal property
is also significant in some of the jurisdictions which impose sales
and other transfer taxes.
II.
OWNERSHIP
A. What is Ownership
1. The delineation of ownership is as old as human written records. Ownership is a
Biblical Concept: The Mosaic laws as described in the Ten Commandments or
the laws on takings in Exodus 22:1-15, as well as the host of other Levitical laws
throughout the first five books of the Old Testament, are all attempts to legally
define ownership.
2. In the words of Blackstone (English Jurist): The third absolute right; inherent in
every Englishman, is that of property: which consists in the free use, enjoyment
and disposal of all his acquisitions, without any control or diminution, save only
by the laws of the land.
3. Property signifies that dominion or indefinite right of user, control and disposition
which one may lawfully exercise over particular things or objects (63 Am Jur 2d).
4. Property is composed of certain constituent elements, namely:
a) Exclusivity - the right of the owner to exclude others from enjoying a
particular thing or resource; and
b) Autonomy - the right of use, enjoyment and disposal of the particular subject
of property subject only to certain limitations provided by law.
B. Acquisition and Loss of Ownership
1. How acquired:
a) Ownership is acquired by occupation and intellectual creation or transmitted
by law, by donation, by estate and intestate succession, in consequence of
certain contracts - by tradition and by prescription (Art. 712, NCC.).
b) Ownership can also be acquired under the principle of accession (Art. 440
and 441, NCC).
c) Ownership can also be acquired by acquisitive prescription through adverse
possession (Title V, NCC).
d) Mode of Acquiring Ownership
(1) Is the specific cause which gives rise which gives rise to ownership;
(2) Ownership is a result of the presence of a special condition of things, of
the aptitude of persons, and of compliance with the conditions
established by law.
(3) Title and Ownership
(a) Is the juridical act which give the name to the acquisition of
ownership.
(b) By title, a juridical act has been performed but actual ownership is not
transferred until the property is delivered and the purchaser has taken
possession of the thing as in Sale.
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(c) Influence by Roman Law, the distinction has been abandoned by
other civil law countries.
e) Kinds of Mode
(1) Original Mode - are those independent of any pre-exist right of another
person; hence it is necessarily free from burdens or encumbrances.
Example:
(a) Occupation; and
(b) Intellectual Creation.
(2) Derivative Mode - are those based on a right previously held by another
person, and therefor subject to the same characterization as when held
by the pretending owners.
(a) Transfer - the person transmits the right in its entirety to another and
as a result, lost ownership of the thing, such as:
i)
Succession; and
ii) Tradition.
(b) Constitution of Rights - the person merely transmit a part of the
right such as as:
i)
Usufruct;
ii) Mortgage; and

iii) Lease.
2. Loss of Ownership
a) No provisions that specifically discuss the rules on loss of ownership
b) Modes of Loosing Ownership
(1) Voluntary
(a) Abandonment; and
(b) Alienation (transfer)
i)
Inter vivos; or
ii) Mortis causa.

(2) Involuntary
(a) Loss of the thing;
i)
Physical loss; or
ii) Juridical loss (when the thing ceases to be the objet of private
ownership)
(b) Accession continua;
(c) Rescissory actions;
(d) Judicial decree; and
(e) Operation of law.
C. RIGHTS OF OWNERSHIP
1. Object of Ownership - Article 427 of the Civil Code
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a) Over Things
b) Over Rights
2. Right to Exclude (Exclusionary Right)
a) Under the Civil Code
(1) Right to Exclude under the Civil Code (Art. 429, NCC)
(a) The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal of the thing.
(2) Right of Enclosure and Fences (Art. 430)
(a) Subject to servitudes and easements
(3) Self-Help
(a) Exception
i)
Lawful Interference in cases of acts of necessities Art. 432, NCC
ii) Compensate affected owner for damages

(4) Resort to judicial process if possession is loss
(a) Art. 428, par. 2, NCC - The owner has a right of action against the
holder and possessor of the thing in order to recover it.
(b) Art. 433, NCC - Actual possession under a claim of ownership raises
a disputable presumption of ownership. Th true owner must resort to
judicial process in order to recover it.
b) Right to Use
(1) General Statement under Art. 428 of the Civil Code
(a) Par. (1) The owner has the right to enjoy things thing without other
limitations.
(b) Right to its Product or Increase
i)
It carries with it the right to its product
ii) It carries with it the right to its increase

(c) Exceptions:
i)
Limitation set by law
ii) Injurious Use - The owner of the thing cannot make use it in such
a manner as to injure the rights of a third person (Article 431, NCC
c) Right to Transfer
(1) Sometimes called alienability; as a general rule, any owner may freely
alienable his property to anyone but the scope of this right is sometimes
limited for reasons of public policy.
(2) The right of an owner to alienate or dispose his property in any lawful
manner
(3) Must comply with the mode appropriate appropriate to the kind of
property in order to be effectual.
(4) Art. 428 of the New Civil Code
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(a) The owner has the right to dispose property subject to limitations
established by law
(5) Kinds of Transfers
(a) Assignment of ownership
(b) Assignment of use only
d) Right to Vindicate
(a) Includes the right to protect and defend such possession against the
intrusion or trespass of others which may include self-help; and
(b) Right to judicial relief
e) Presumptions
(1) The law favours actual possessors (Article 433 of the Civil Code)
(2) Rule on accession favours the dominant property
f)
Limitations
(1) An owner may put his property to any use not unlawful, however absolute
and unqualified may be his title, an owner holds the property under the
implied liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of their
property of others nor injurious to the rights of the community. a claim of
restrictions and limitation in the use of such property must be clearly and
indubitable established
(2) Governmental control and regulate properties to secure the general
safety, the public welfare and the peace, good order and morals of the
community. This does not confer power to control rights which are purely
and exclusively private, but it does authorise the establishment of laws
requiring each citizen so to conduct himself and use his own property as
not unnecessarily to injure another. The state may provide regulations as
to the acquisition, enjoyment and disposition of property and may even
take private property for a public purpose, subject to the right of the
individual to just compensation.
(3) Constitutional Limitations
(a) 1987 Constitution, Article XII, National Economy and Patrimony
(b) Use of Property Has a Social Function - The use of property bears a
social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations,
cooperatives and similar collected organisations, shall have the right
to own, establish and operate economic enterprises, however, this is
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demand.
(c) Distributive Justice (Article XIII, Social Justice and Human Rights)
i)
The use of property is subject to the duty of the state to promote

distributive justice.
ii) Enhance the right of people to human dignity, reduce social,

economic, and political inequalities and remove cultural inequities
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by equitably diffusing wealth and political power for the common
good.
iii) The State undertakes to regulate acquisition, ownership, use and
disposition of property and its increment.
D. Co-Ownership
1. Definition: The ownership of an undivided thing or rights belongs to different
person (Art. 484, NCC)
2. General Rule
a) Presumption is equal shares (Art. 485, NCC)
b) Full ownership of his share (Art. 493, NCC)
c) On Share - the share of the co-owners in the benefits as well as in the
charges are proportional to their interest and any stipulation altering this
proportion is void . (Art. 485, NCC)
3. On Right to Use
a) Any co-owner ay use the thing in accordance with its purpose (Art. 486,
NCC)
b) Co-owners cannot use the thing in such a way as to injure the interest of the
co-owners or prevents them from using it according to their rights
c) Co-owner may not alter the thing in common even though it will benefit all
co-owners; judicial relief if the withholding of consent is prejudicial (Art. 491,
NCC) or if the resolution of the majority is prejudicial (Art. 492, NCC)
4. On Right to Exclude
a) May not exclude co-owners (Art. 486, NCC)
b) Prescription does not run against co-owner as long as he recognises the coownership (Art. 494, par. 5, NCC)
5. On Right to Transfer
a) Any co-owner may alienate, assign or mortgage his right (Art. 493, NCC)
b) Any co-owner may substitute another person in the enjoyment of the use
except if personal rights are involved (Art. 493, NCC)
c) Creditors and Assignees may take part in the division but cannot impugn any
partition that has been executed (Art. 497, NCC)
6. On Right to Vindicate
a) Any co-owner may bring an action for Ejectment (Art. 487, NCC)
7. On Right to Partition
a) Any co-owner may demand partition any time in so far as his share is
concern (Art. 492 and 496, NCC);
b) Mutual accounting for benefits receive and reimbursement (Art. 500, NCC);
c) Creditors or assignees of a co-owner may take part in the division and object
to its being effected without their concurrence (Art. 497, NCC).
d) Kinds of Partition
(1) Private Partition (Art. 496, NCC)
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(2) Judicial Partition (Art. 496, NCC)
e) Exception to Right of Partition
(1) By agreement for a period not more than ten years. Extension is allowed
by a new agreement. (Art. 494, par. 2, NCC)
(2) Donor and Testator may prohibit partition but it shall not exceed 20 years
(Art. 494, par. 3, NCC)
(3) If the partition will render the thing unserviceable for the use for which it
was intended (Art. 495, NCC).
(4) Indemnification of other co-owners by the acquiring co-owner but if there
is no agreement, the thing shall be sold and the proceeds distributed (Art.
497, NCC)
f) Effect of Partition to Third Persons (Art. 499, NCC)
(1) Does not prejudice third person who has a right of mortgage, servitude or
any other real right before the division.
(2) Does not prejudice personal rights
(3) Warranty - every co-owner shall be liable for defects of title and quality of
the portion assigned to each of he other co-owners. (Art. 501, NCC)
8. Obligations of Co-Owners
a) Contribute to the expenses for preservation and to taxes. (Art. 488, NCC)
b) Contribute to the expenses for improvement upon majority decision (Art.
489, NCC). Majority decision must include co-owners representing
controlling interest (Art. 492, NCC)
c) As far a practicable, other co-owners must be notified before a co-owner
incur expenses for preservation.
9. Renunciation of Shares
10. A co-owner may renounce his share share as may be equivalent to this share of
the expenses and taxes but not when it is detrimental to the interest of the coownership (Art. 488, NCC)
11. Special rules on co-ownership of buildings with different Stories (Art. 490, NCC)
12. Other Forms of Co-ownership
III. Possession
A. In General
1. Concept
a) The control or occupancy of a property by a person. Depending on how and
when it is used, the term possession has a variety of possible meanings. As
a result, possession, or lack of possession, is often the subject of
controversy in civil cases involving real and personal property. The idea of
possession is as old as the related concepts of private property and
ownership. Our modern possession laws originated in the ancient Roman
doctrines of possessio.
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b) Possession versus Ownership - Possession is not the same as ownership.
No legal rule states that "possession is nine-tenths of the law," but this
phrase is often used to suggest that someone who possesses an object is
most likely its owner. Likewise, people often speak of the things they own,
such as clothes and dishes, as their possessions. However, the owner of an
object may not always possess the object. The myriad distinctions between
possession and ownership, and the many nuances of possession, are
complicated even for attorneys and judges. To avoid confusion over exactly
what is meant by possession, the word is frequently modified by adding a
term describing the type of possession.
c) Common Types of Possession
(1) Actual Possession - Physical occupancy or control over property
(2) Adverse Possession - The enjoyment of property with a claim of right
when the enjoyment is opposed to another persons claim.
(3) Acquisitive Prescription - The acquisition of a title to a thing by open,
continues, exclusive, notorious and hostile possession over a statutory
period. The real owner looses the property by his/her failure to exercise
his right, to reclaim or to recover it over a long period of time. (See also
laches)
(4) Bonafide Possession - Possession of property by a person who in good
faith does not know that the propertys ownership is disputed.
(5) Constructive Possession - Control or dominion over a property without
actual possession or custody of it. Thus, when a possessor holds title to
a property and physically possesses part of it, the law will deem the
possessor hold constructive possession of the rest of the property
described in the title.
(6) Exclusive Possession - The exercise of exclusive dominion over
property including the use and benefit of the property.
(7) Hostile Possession - Possession asserted against the claims of all
others especially the true or record owner
(8) Notorious Possession - Possession or control that is evident to others;
and possession of property that, because it is generally known by people
in the area where the property is located, gives rise to a presumption that
the actual owner has notice of it.
(9) Peaceable Possession - Possession not disturbed by anothers hostile
or legal attempts to recover possession especially wrongful possession
that the rightful possessor has appeared to tolerate.
2. Definition under the Civil Code
a) Possession in General
(1) Possession is the holding of a thing or the enjoyment of a right (Art. 523).
Only things and rights which are susceptible of being appropriated may
be the object of possession (Art. 430)
(2) Possession is the fact of having or holding property in ones power; the
exercise of dominion over property; the right under which on may
exercise control over something to the exclusion of all others;
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(3) Any of the usual outward marks of ownership may suffice as possession
in the absence of manifest power in someone else.
3. How is Possession Exercise
a) Possession can be exercise in ones own name or in that of another (Art.
524)
b) Possession of a thing as an owner
c) Possession of a thing by reason of a right to hold, keep or enjoy without
being an owner; See Art. 559
B. Acquisition of Possession
1. How possession is acquired (Art. 531, NCC)
a) Material Occupation
b) Exercise of a Right
c) Control over thing/right that are subject to the action of our will (Art. 560,
NCC)
d) Constructive Delivery
(1) Tradicion brevi-manu
(2) Constitutum Possessorium
(3) Tradicion simbolica
(4) Tradition longa manu
e) Juridical Acts or by operation of law
2. Who can acquire possession
a) By the same person who is to enjoy it (Art. 532, NCC)
b) By his legal representatives, agent or any other person if ratified; in case of
minors/incapacitated persons, they need the assistance of their legal
representatives
c) By operations of law (Art. 534, NCC) as in the case of hereditary title transmission from the moment of death
d) Possession cannot be acquire through force or intimidation as long as there
is a possessor who objects to it (Art. 536, NCC; but see the doctrine of SelfHelp)
e) Acts merely tolerated and those executed clandestinely and without
knowledge or by violence do not affect possession (Art. 537, NCC)
f) Possession of movables in good faith is equivalent to a title, however, the
person who was unlawfully deprive may recover it (Art. 559, NCC); there
must be reimbursement in case of acquisition in public sale.
g) Possession as a fact cannot be recognized at the same time in two different
personalities except in co-possession (Art. 538, NCC)
(1) Present possessor is preferred
(2) The one longer in possession is preferred in case there are two
possessors
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(3) The one who presents a title is preferred in case of the date of possess
are the same.
C. Effects of Possession
1. Possession is respected and will be restored if disturbed, writ of ejectment may
be issued (Art. 539, NCC)
2. Presumptions of Ownership in favor of Actual Possessors
a) Just title - if possession is in the concept of an owner; possessor cannot be
obliged to show or prove it. (Art. 541, NCC)
b) A possessor who shows possession at some previous time is presumed to
have held possession also during the intermediate period in the absence of
proof to the contrary. (Art. 459, NCC)
c) Possession of real properties presumes possession of movables (Art. 542,
NCC)
3. Rules in common possession (Art. 534, NCC)
a) Allocation after division is presumed to have been possessed during the
entire duration of co-possession
b) Interruption of possession prejudices all the possessors
c) In case of Civil Interruption, the Rules of Court applies
D. Loss of Possession
1. General Rule (Art. 544, NCC)
a) By abandonment of the thing
b) By assignment made to another either by onerous or gratuitous title
c) By destruction or total loss of the thing or because it goes out of commerce
d) By the possession of another
(1) One year
(2) Ten years - real right of possession is lost
(3) Prescription on immovables is subject to land registration laws
2. Presumption
a) Movables are not deemed lost as long as they remain under the control of
the possessor even thought the time being he ay not know its whereabout.
E. Adverse Possession
1. Definition - The enjoyment of property with a claim of right when the enjoyment
is opposed to another persons claim. Simply put, adverse possession is
possession without authority and adverse to the interest of the lawful possessor.
Adverse possession can ripen into ownership when it is continuous, exclusive,
hostile, open, notorious and within the statutory period for acquisitive
prescription.
Adverse possession can either be in good faith or in bad faith.
2. Possession in Good Faith
a) Definition
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(1) A Possessor in good faith is a possessor who is not aware that there
exists in his title or mode of acquisition any flaw which invalidates it;
(2) Mistakes as to question of law may be a basis of good faith (Art. 526,
NCC);
(3) Good faith is presumed and bad faith has to be proved (Art. 527, NCC);
and
(4) Good faith is lost upon knowledge of the facts (Art. 528, NCC)
b) Effects of Possession in Good Faith
(1) On the Fruits
(a) Entitled to the fruits before possession is legally interrupted
(b) Right to his proportional share in case of natural and industrial fruits in
case of interruption
(2) Refund
(a) For necessary expenses with right of retention until reimbursement
(Art. 546, par. 1, NCC)
(b) For useful expenses with right of retention - owner has the option to
refund or to pay increase in value (Art. 546 par. 2, NCC)
(c) For expenses for pure luxury or mere pleasure (Art. 548, NCC)
(3) Removal
(a) Of useful improvements if it can be done without damage or refund
(Art. 547, NCC); and
(b) Of ornaments for embellishment if it suffers no injury and if owner
does not prefer to refund (Art. 548, NCC)
(4) Liability
(a) Not liable for the deterioration or loss except if there is fraudulent
intent or negligence after judicial summons
3. Possession in Bad Faith
a) Definition
(1) A possessor in bad faith is a possessor who is is aware, has knowledge
or has actual notice of any flaw in his title
b) Effects of Possession in Bad Faith
(1) On the Fruits
(a) Obligation to reimburse the owner/legitimate possessor the fruits
received
(2) Refund
(a) For necessary expenses only without right of retention (Art. 546 and
549, NCC)
c) Removal
(1) Of improvement for pure luxury or please if no injury is cause and the
lawful possessor does not prefer to retina the by paying its value (Art.
549, NCC)
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d) Liability
(1) Liable for losses including fortuitous events
4. Rule upon Recovery of Possession by the Lawful Possessor
a) Improvements caused by nature or time always insure to the benefit of the
person who succeeded in recovering possession (Art. 551, NCC); and
b) Nor is he obliged to pay for improvements which have cease to exist at the
time he takes possession of the thing (Art. 553, NCC)
c) Recovery of possession unjustly lost - possessor deemed to have
uninterrupted possession.
5. Acquisitive Prescription by Adverse Possession
a) Concept
The most controversial doctrine in property law. Title by adverse possession
is like title by theft or robbery, a primitive way of acquiring land without
paying for it.
The acquisition of land under the doctrine of acquisitive prescription by
adverse possession is recognized in all the civil and common law
jurisdictions. Proof of good faith on the part of the possessor of the land will
significantly reduce the limitation period in some jurisdictions (France, Spain
and the Philippines); in other jurisdictions evidence of good faith is not a
relevant consideration (Hungary, Germany and Massachusetts/US).
A significant difference in the application of adverse possession arises where
states have adopted a system of land registration. Where land is registered,
some states have abolished the capacity to acquire land by prescription (In
Philippines, lands registered under the Torrens System10 is not subject to
prescription) while retaining the right in respect of unregistered land. This
difference reflects the policy that the uncertainty of ascertaining ownership is
eliminated by a system of registration so that the rationale for the doctrine of
adverse possession is thereby weakened. Most states do, however, maintain
the doctrine of adverse possession in respect of registered land (United
Kingdom, Australia, United States and New Zealand) and courts continue to
recognize the public policy value of extinguishing title to registered property
after a certain period. 11
b) Justification in recognizing adverse possession
(1) Preventing frivolous claims - in effect, it is a special statue of limitations
for recovering possession of land by preventing stale and frivolous claims
by providing occupant with security of tenure.
(2) Correcting title defects - lengthy possession is treated as proof of title;
solves problems of longtime errors
(3) Encouraging development - transfers ownership from idle owners to
industrious squatters
10
Act No. 496 and PD No. 1529
11
Report by the British Institute of International and Comparative Law for Her Majestys Court
Service on Adverse Possession, September 2006, pp. 2-3
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(4) Protecting personhood - A thing which you have enjoyed and used as
your own for a long time, .. takes root in your being and cannot be torn
away without your resenting the act. 12
c) Elements
(1) Actual Possession - the claimant must physically use the land in the
same manner that a reasonable owner would, given its character,
location, and nature.
(2) Exclusive Possession - the claimants possession cannot be shared
with the owner or with the public in general.
(3) Open and Notorious Possession - the claimants possession must be
visible and obvious, so that if the owner made a reasonable inspection of
the land, he would become aware of the adverse claim.
(4) Adverse and Hostile Possession - the claimants possession must be
in against that of the owner. (See acts merely tolerated)
(5) Continuous Possession - the claimants possession must be as
continuous as a reasonable owners would be, given the character,
location, and nature of the land.
(6) Under a claim of title - Intention to acquire or to appropriate
(7) Within the Statutory Period - within the period given by the law for the
perfection of the title.
(a) Real Property
i)
In Good Faith
ii) In Bad Faith

(b) Personal Property
i)
In Good Faith
ii) In Bad Faith

d) Proving Adverse Possession
(1) Tacking of Possession - there is tacking of possession if the successive
occupants are in privity with each other. It is the joining of consecutive
period of possession by different persons to treat period as one
continuous period to establish continuous adverse possession for the
purpose of completing the statutory period provided by law to acquire
ownership of the thing possessed.
(2) Tolling of Possession - there is tolling of possession when the law
interrupts the running of the statue of limitations in certain situations as
when the lawful owner of the thing files an action in court to recover
possession the thing lost.
e) Acquisitive Prescription
(1) Acquisition of ownership by the adverse possessor of the thing
possessed.
12
Oliver Wendell Holmes, Jr. The Path of the Law, 10 Harv. L. Rev. 457 (1897)
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(a) Possession acquired and enjoyed in the concept of owner can serve
as a title for acquiring dominion (Art. 540, NCC)
(b) Adverse possessor acquires title to the land after a period of time set
by the law. Judicial action is not necessary for an adverse possessor
to obtain title; title is acquired by operations of law.
(c) Adverse possession claims normally arise in two (2) procedural
situations: the adverse possessor brings an action or raises the
doctrine as a defence to an owners lawsuit to recover possession.
(2) Prescription does not apply on registered lands - The possession of
immovables and other real rights is not deemed lost, or transferred for
purposes of prescription to the prejudice of third persons, except in
accordance with the provisions of the Mortgage Law and the Land
Registration laws. (Art. 557, NCC)
(a) Presidential Decree No. 1529 (Property Registration Decree).
i)
Section 47. Registered land not subject to prescriptions. No title to

registered land in derogation o nth tile of the registered owner
shall be acquired by prescription or adverse possession.
(b) The Spanish Mortgage Law or Ley Hipoticaria was discontinued

under PD No. 1529, Section 3 and all Spanish titles were considered
as unregistered lands.
(c) Torrens Title System in the Philippines was introduced under Act No.
496 or the Land Registration Act in 1902.
IV.
Original Modes of Acquiring Ownership (Original Creation of Property)

A. Occupation
1. Definition
a) Things appropriable by nature which are without an owner are acquired by
occupation (Article 713, NCC)
b) But land cannot be acquired by occupation (Article 714, NCC).
2. Conditions for Acquisition:
a) Physical object;
b) Actual possession or control;
c) Intention to and capacity to acquire
d) Specific Resources: wild animals, hidden treasure and abandoned
movables.
e) Res nulius
(1) Includes domesticated animals that returned to the wild (20 days to
reclaim, otherwise it shall be considered as res nullius);
3. Special Rules:
a) Bees (right to pursue, 2 days);
b) Pigeons and fish (enticement rule);
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c) Hidden treasure (Art. 438, NCC); Finder must return (1/10 reward) or he is
liable for theft under RPC Article 308, Par. (1); and
d) Abandoned property becomes res nullius.
4. Republic Act No. 9147 (Wildlife Resources Conservation Act and
Protections Act)
a) State Policy
(1) Implements the policy of the State to Conserve the countrys wildlife
resources and their habitats for sustainability
(2) Objectives: Conserve, protect, regulate the collection and trade, pursue
commitment to international conventions, and to initiate scientific studies
on the conservation and protection of wildlife.
b) Illegal Acts:
(1) Section 27 enumerates the illegal acts;
(2) Killing, destroying, and injuring wildlife species;
(3) Damaging critical habitats;
(4) Introduction, reintroduction or restocking of wildlife resources;
(5) Collecting, hunting, possessing, trading, and transporting of wildlife and
their by products/derivative including active nests, nest trees, host plants
and the like; and
(6) Other similar acts
c) Subject to exceptions:
(1) Section 7 and Section 27 (paragraph a, subparagraph i to v)
(2) Use by indigenous people
(3) In accordance with customs and practices traditionally observed,
accepted and recognized including killing and destroying if part of
religious rituals of established indigenous peoples community; exception:
does not cover threatened species
d) Wildlife Permits issued by the DENR:
(1) Wildlife farm or culture;
(2) Wildlife collectors permit;
(3) Gratuitous permit;
(4) Local Transport Permit; and
(5) Export/Import/Re-export permit.
5. Roman Law Concepts:
a) res nullius (nobodys property / property without an owner) - a thing that
belong to no one. Res nullius is a Latin term derived from Roman law
whereby res (an object in the legal sense, anything that can be owned, even
a slave, but not a subject in law such as a citizen) is not yet the object of
rights of any specific subject. Such items are considered ownerless property
and are usually free to be owned. Examples of res nullius in the Civil Code
are wild animals and abandoned property. Thing completely lost or
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abandoned is res nullius, and therefore belonged to the first taker or the first
person to occupy/take control of the thing.
b) spes recuperandi (hope of recovery) - The hope of recovery or recapture; the
chance of retaking property which prevents the captors from acquiring
complete ownership of the property until they have definitely precluded it by
effectual measures.
c) animus revertendi (intent to return) - the intention to return; livestock remains
the property of the owner although they are not within the immediate control
of the owner. The concept was originally created to protect the rights of
livestock holders that had free ranging animals. Without the recognition of
animus revertendi, any animal that strayed away from the owner's property
onto public land could be killed and taken without any compensation to the
original caretaker. It takes a lot of time and effort to raise and feed a beast.
By recognizing that the caretaker has rights, it promotes the care and
feeding of animals, especially for human consumption, creates incentive to
produce by eliminating the free rider problem.
d) animus recuperandi (intent to recover) - the owner who lost possession has
not given up hope in recovering the property.
B. Accession
1. General rule:
a) The law assigned ownership of things produced to the owner of the principal
(Art. 440 and 441, NCC)
(1) Natural
(2) Industrial
(3) Civil
b) The law presumed that the accessory thing belongs to owner of the principal
(1) The possession of real property presumes that of the movables therein,
soloing as it is not shown that they should be excluded (Art. 542, NCC)
(2) The possession of movable is not deemed lost so long as hey remain
under he control of the possessor even though for the time being he may
not know their whereabouts (Art. 556, NCC)
c) Types of Accession
(1) Accession discreta- right of the owner pertaining to the fruits
(2) Accession continua - right of the owner pertaining to things attached or
incorporated
2. Rule on Accession in Immovable Property
a) General rule
(1) All that is built, planted or sown on the land is pressed to belongs to the
land owner (Art. 445, NCC) unless the contrary is proved (Art. 446, NCC)
(2) Drift woods belongs to the owner of the land unless claimed with
payment for expenses in the gathering and preservation
(3) Accretion on river banks under Art. 457, NCC belongs to the owner but
does not include accretion on lakes
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(4) Rule on avulsion under Art. 459, NCC
(5) Rule on changes is the course of rivers Art. 46, Art. 462 and Art. 465,
NCC
(6) Rule on Islands
b) Rule on Builder, Planter and Sower on Lands of Another
(1) Builder, Planter, and Sower in good faith (Art. 448, NCC)
(a) Owner appropriate the property with payment of indemnity
(b) BPS may be compelled to pay for the land or to pay rent
(2) Builder, Planter and Sower in bad faith (Art. 449/450, NCC)
(a) Owners acquires the BPS without payment of indemnity
(b) or/Owner demands demolition with restoration
(c) or/Owner pays the land/rent
(d) BPS is entitled to reimbursement for the preservation of the land (Art.
452, NCC)
(e) BPS in bad faith is entitled to reimbursement for the necessary
expenses for preservation
(f) BPS is bad faith is always liable for and with damages (Art. 451,
NCC)
(3) Both owner and BPS is in bad faith (Art. 453, NCC)
(a) Treated as if both acted in good faith
(b) Cancels out the bad faith of each
(c) There is bad faith on the part of the owner if he has knowledge and
did not oppose the BPS on his landIf the owner acted on bad faith
while the TP acted on good faith, the BPS has the right of a material
man under Art. 447
c) Rule on Persons providing Materials to Owners
(a) Rights of material men
(b) Payment, removal if it will cause no injury and removal with injury if
the owner acted on bad faith (Art. 447, NCC)
3. Rules on Accession in Movable Properties
a) General Rule
(1) Owner of the principal acquires the accessory with indemnity (Art. 466,
NCC)
b) Definition of Principal
(1) Not the ornament (Art. 467, NCC)
(2) The one with greater value (Art. 468, NCC)
(3) The one with greater volume (Art. 468, NCC)
c) Rule on Separation
(1) The Principal does not acquire the Accessory if the two objects can be
separated without injury. (Art. 469, 2nd par., NCC)
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(2) When the accessory is more valuable than the principal, the owner may
demand separation even if there would be injury.
(3) If the things are mixed (no principal/accessory), proportional division
bearing in mind the value of the things mixed. (Art. 472, NCC)
d) Rule on Acquisition if there is Bad Faith (Art. 470, NCC)
(1) Owner of Accessory in Bad Faith - owner of the accessory loose the thing
without indemnity
(2) Owner of Principal in Bad Faith - owner of accessory may choose
reimbursement with damages or separation with damages.
(3) If both are in Bad Faith, rule is Art. 466, NCC
e) In case of Bad Faith in mixture/confusion
(1) Owner in BF loosed his property with indemnity (Art. 473, NCC)
f) Rule on owners of materials
(1) The maker in Bad Faith, owner of the material shall have the right to
appropriate the work without payment or demand value of the material
with damages
(2) Ownership of Materials Used
(a) In consensual contracts, payment of the materials
(b) If the material was use without consent, indemnity and delivery of a
thing equal in kind or value or price according to expert appraisal.
(Art. 471, NCC)
(c) Labor/Craft in good faith - craftsman acquires the materials with with
indemnity for the value of the materials, if the material is more
valuable than the finish goods, owner pays for the value of the work or
demand indemnity for the material (Art. 476, NCC)
g) Rules on Third Persons
(1) Reimbursement under Art. 443 - if the owner receives a fruit, he should
pay third persons who incur expenses in its production, gathering and
preservation.
C. Intellectual Creation
1. General Principles:
a) Properties that are created by the human mind;
b) Creation are transformed into physical objects:
(1) Physical copy of the book or in the case of songs and music the copy of
the recording is owned by the buying public;
(2) Many can use it without interfering with each others use. It is a public
good or a good that can be consumed without reducing any other
persons consumption of it. However, the intellectual content of the
created object is owned by the author or the creator; and
(3) Authors and inventors are given an incentive by giving a limited
monopoly on writings and inventions.
c) Three (3) types of Intellectual Creation:
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(1) Copyrights - protects original works of the authorship, i.e. books,
computer programs, plays, sculptures, songs;
(2) Patents - protects new inventions; and
(3) Trademarks - protect words, names and other symbols which are used
by merchants to distinguish their goods and services form others.
d) System of allocation of rights:
(1) First in Time;
(2) Principal right is the right to exclude others from using the intellectual
property;
(3) Governed by national laws but are increasingly affected by international
law; and
(4) Intellectual Properties are protected by Special Legislation.
2. Copyright
a) Objective
(1) To promote science and useful arts, the constitution authorizes congress
to give authors and inventors the exclusive right to their respective writing
and discoveries
b) As Incentive to creators
(1) Holds the right to exclude, prevent others from reproducing the work,
creating derivative works,, distributing copies of the work to the public,
publicly performing the wok or displaying during the term of the copy
right. The owner may transfer her copyright to others or destroy the
copyright by abandoning it.
c) What is being protected
(1) Copyright law protects the manner in which an idea is expressed not the
idea itself. Thus, concepts, principles, discoveries, facts and other ideas
are not covered by copyright.
d) Copyright Infringement - to prevail in a copyright infringement action, the
plaintiff must prove that:
(1) Plaintiff owns the copyright;
(2) The defendant actually copied the plaintiffs work; and
(3) The ordinary observer would conclude that the defendants work was
substantially similar to the plaintiffs work
3. Patent
a) Objective
(1) To promote science
b) Patent Office
(1) Authorized to issue patent to anyone who invents or discovers any new
and useful process, machine, manufacture or composition of matter or
any new and useful improvement thereof.
c) Utilitarian Mandate
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(1) Inventors are obliged to reveal how he made the invention so that others
may improve it
d) What can be patented
(1) There are four (4) categories of inventions to qualify for a patent; any
process, machine, manufacture, or composition of matter. Abstract
concept, mathematical algorithms, scientific principles and physical
phenomena cannot be patented.
e) Elements
(1) Utility - useful invention, benefit to human
(2) Novelty - new invention; prior arts examination
(3) Non-obviousness - obvious to persons with ordinary skills
(4) Enablement - description in details to enable a person skilled in the art to
which it pertains to make use of the same.
f) Patents Infringement - to prevail in a patent infringement action, the plaintiff
must show either:
(1) Literal infringement; or
(2) Infringement under the doctrine of equivalents.
4. Trademarks
a) Objective
(1) While copyrights and patent law seek to encourage creative efforts, the
goals of trademark are different. Its goal is to protect consumer form
being deceived inter purchasing shoddy goods and services
b) Trademark Infringement - to prevail in a trademark infringement action, the
plaintiff must prove:
(1) Plaintiff is holding a valid trademark with priority over the defendants
mark;
(2) the defendants mark is likely to cause confusion or deceive consumers;
or
(3) Defendant may be liable for trademark dilution if his conduct blurs or
tarnished the plaintiff.s famous mark.
V. Derivative Mode of Acquiring Ownership (Transfers of Rights)

A. Concept
1. The Right to Transfer - The more efficient person should be allowed to acquire
the property of the less efficient one for mutual benefit. The right to transfer is
vital for efficiency in our market economy because it helps ensure that property
is devoted to its most valuable use.
B. Kinds of Transfers
1. Transfer of Ownership
a) Sale (Separate Subject in Civil Law)
b) Donation
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c) Succession (Separate Subject in Civil Law)
2. Constitution of Rights
a) Lease
b) Usufruct
C. Donation
1. Concept
a) A voluntary contract by which the donor expressly agrees to give, without
consideration, something to the donee, and the latter in an equally express
manner accepts the gift.
b) In Roman law and in some modern codes this contract carries with it only the
obligation of transferring the ownership of the thing in question; actual
ownership is obtained only by the real traditio or handing over of the thing
itself, or by the observation of certain juridically prescribed formalities.
2. Kinds
a) Simple Donation
(1) Donation is an act of liberality whereby a person disposes gratuitously of
a thing or right in favour of another who accepts it (Art. 725, NCC); and
(2) Ilegal or impossible conditions that are imposed in simple donation are
considered as not imposed (Art. 727, NCC).
b) Remuneratory
(1) A donation is called remunerative when inspired by a sentiment of
gratitude for services rendered by the donee. (Art. 726, NCC)
(2) Remunerates past services which do not constitute a demandable debts;
and
(3) The donation is not payment for a demandable debts.
c) Conditional
(1) When a condition, charge or burden (also called modes) is is imposed
by the donor to the donee in consideration of the donation. .
(2) It does not affect the rights of the donee. It is an accessory disposition
where the benefit conferred on the donee is restricted by the statement of
the purpose to which the thing shall be applied or the imposition of a
presentation to be performed by the donee.
(3) The portion exceeding the value of the burden imposed constitutes a real
donation while the portion equivalent to the burden is governed by the
rules on obligations and contracts.
d) Onerous Donation
(1) Donations for a valuable consideration that is demandable agains the
donor or when it imposes a burden equivalent to the value of he
donation.
(2) Essentially, this is a contract is is governed by the rules of contracts (Art.
722, NCC)
e) As to when it will take effect:
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(1) Inter Vivos
(a) Art. 729, NCC;
(b) The effectivity of the disposition is not made to depend upon the
death of the donor even if the delivery of the property donated may be
postponed until after the donors death
(2) Mortis Cause
(a) Art. 728, NCC
(b) The donation is made to depend on the death of the donor
(c) The intention is to transfer ownership after his death.
(3) In case of doubt, donations are deemed as inter visor rather than mortis
causa.
(4) The taking effect of the donation during the lifetime or after the death of
the donor down not depend upon whether the property is delivered
during such lifetime or after such death. From the moment the donor
disposes gratuitously of his property, and the disposition is accepted by
the donee, a perfect and irrevocable donation exists. Such donation may
be conditional or with a term, and the term may be the death of the donor.
Until the day comes or the condition is fulfilled, the donation is not carried
out, but it produces effect. (Art. 729 and Art. 730, NCC)
(5) Thus, he who donates with a term, although such term may be that of his
death, has disposed already the thing donated, and can no longer revoke
the donation, nor, for that reason, can he disposed of the thing in favor of
another.
3. Essential Elements of Donation
a) Reduction of the patrimony of the donor;
b) Increase in the patrimony of the donee; and
c) The intent to do an act of liberality of the donee (animus donandi)
4. Capacity
a) Who may give donations or receive donations
(1) All persons who may contract and dispose of their property may make a
donation (Art. 735, NCC);
(2) Donors capacity shall be determined as of the time of the making of the
donation (Art. 737, NCC)
(a) Making of the Donation refers to the perfection of the donation;
(b) After acceptance of the donee of the donation.
(3) Guardians and trustees cannot donate the property entrusted to them
(Art. 736, NCC)
b) Who may accept donations
(1) All those who are not disqualified by law may accept donations. (Art. 738,
NCC)
(2) Those who are incapacitated to succeed by will are disqualified to accept
donation inter vivos. (Art. 740, NCC) Examples:
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(a) Priest who heard the confession of the donor during his last illness
(b) Relatives of such prints within the 4th degree, the church, order, etc.
of such priests.
(c) Guardians before the final account of guardianship have been
approved except if the guardian is an ascendant, descendant, siblings
or spouse;
(d) Physicians, medical attendants, etc.
(e) Unworthiness is not included since knowledge of this fact constitutes
a pardon. If the cause of unworthiness occurs after the donation, the
same cannot be revoke because donation inter vivos is revoked only
for causes under Art. 760, 764 and 765 of the NCC.
5. Void Donations
a) Between persons who are guilty of adultery or concubinage at the time of the
donation;
b) Made to a public officer or his wife, descendants and ascendants, in
consideration of his office.
c) Applicable to insurance as well
6. Formalities
a) Public Instrument
b) Acceptance, Notification and Ratification
7. Effects of Donations and Limitations
a) Present Properties
b) Future Properties
c) Inofficious Donations
d) On Debts and Usufruct
8. Revocation and Reduction of Donations
a) Coverage
b) Extent
c) Prescription of Action
D. Lease
1. Concept
2. Distinguished from Sale
3. Distinguished from Usufruct
4. Assignment of Lease
5. Obligation of Lessor
6. Obligation of Lessee
a) Payment
b) Increase and Decrease
c) Failure to Pay
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d) Diligence in use
e) Breach of Duty
f) Remedies
(1) Ejectment
(2) Recession of Contract
(3) Recovery of Damages
g) Tacit Renewal
7. Sale of Lease Property
8. Termination
9. Republic Act No. 7652 An Act Allowing Long-Term Lease of Private Lands by
Foreign Investors
a) Know as Investors Lease Act
b) Meaning of Investing in the Philippines - Making an equity investment in the
Philippines through actual remittance of foreign exchange or transfer of
assets, whether in the form of capital goods, patents, formulae, or other
technological rights or processes, upon registration with the SEC
c) Coverage - any foreign investor investing in the Philippines shall be allowed
to lease private lands solely for the purpose of the investment comprising of
such an area reasonably required by the business for a period not exceeding
fifty (50) years, renewable once for a period of not more than twenty-five (25)
years and subject to the provision of the CARL and LGC.
d) Termination
(1) Withdrawal of the approved investment;
(2) Termination by the Secretary of Trade and Industry if the investment
project is not initiated within three (3) years;
(3) Abandonment of the investment project within the lease period;
(4) Failure to pay for three (3) consecutive months coupled with nonoperation for the same period is considered as abandonment; and
(5) End of the lease period:
(a) Renewable upon mutual agreement of the party and upon showing
that the investment has made social and economic contribution to the
country
10. Batas Pambansa Blg. 877 and Republic Act Nos. 6643, 6828, 7644, 8437,
9161, 9341 and 9653 (Rent Control Acts)
a) Intention is to protect housing tenants in the lower income brackets from
unreasonable rent increases.
b) Limit of Increase of rent
c) Covers residential unit which refers to an appartment, house and/or land on
which anothers dwell is located and used for residential purpose and shall
include not only buildings parts or units used sold as dwelling places,
boarding house, dormitories, rooms and bedspaces offered for rent by their
owners, except motels, motel rooms, hotels, hotels rooms, but also those
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used for home industries, retail stores or other business purposes if the
owner and his family actually live therein and use it principally for dwelling
purposes
d) Lapsed
E. Usufruct
1. Definition:
a) Usufruct gives a right to enjoy the property of another with the obligation of
preserving its form and substance, unless the title constituting it or the law
otherwise provides (Art. 562, NCC). It is constituted by law, by the will of
private persons in acts inter-vivos or mortis cause and by prescription (Art.
563, NCC). The rights and obligation of the usufuctuary are provided in the
title or in case of deficiency by the code (Art. 565, NCC).
2. Rights and Obligation of the Owner
a) To make any works, improvements and plantings as long as it will not
diminish the usufruct or prejudice the right of the usufructuary
b) To received the thing at the end of the Usufruct
c) Things that deteriorates - obligation to return as is
d) Consumables - pay the appraised value at the time of the usufruct or to
return the same quantity and quality or pay the current price at the time the
usufructuary ceases.
e) To transfer or alienate the thing but he cannot alter its form or substance or
do anything thereon which may be prejudicial to the usufructuary
f) To be notified of the inventory and receive security for the thing
g) To remove trees that may be left in cases of calamities
h) To administer the thing if the usufructuary fails to give security
i)
To make ordinary repairs if the usufructuary refused after demand, at the

expense of the usufructuary
j)
To pay for extra-ordinary repairs upon notice, right to demand legal interest
for the time the usufructuary last
k) Pay taxes on that relates directly on the capital

3. Rights of Usufructuary
a) Entitled to the fruits growing at the time the usufruct begins (See Article 588,
NCC on Security).
b) Entitled to Civil fruits - can lease the land - proportionate to the time
c) Entitled to the benefits from industrial and commercial enterprise proportionate
d) In Wood land - natural fruits, including ordinary cutting without prejudicing
the preservation of the land. Cannot cut down trees unless it be to restore or
improve the land and must inform the owner.
e) Entitled to transfer or alienate his right of usufructuary
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f) Entitled to Vindicate - may obliged the owner to give him authority to file
action but his right to the fruit is limited to what is adjudged to belong to the
owner
g) Entitled to Set-Off the improvements introduce against the damage
h) Collect matured credits which forms part of the usufruct if he has given
security (or upon authority of the owner or the court)
4. Obligation of the Usufructuary
a) To make an inventory, description and appraisal with notice to the owner;
b) To give security
c) Not applicable to donor and parents who are usufructuaries of the things
donated
d) If usufructuary fails to five security, the owner may demand that immovables
be put under administration,
e) Movables be sold - artistic, sentimental worth - delivery to the owner with
payment of legal interest
f) Convert public bonds, instrument of credit payable to order or bearer to
registered certificates or deposited in a bank or public institution Cash be
invested to safe securities
g) The interest of the proceeds of the sale, public securities and bonds under
administration shall belong to the usufructuary
h) The owner may act as administrator if he so prefers until the usufructuary
gives security - entitled to fees of administration, by agreement or by court
order
i)
Take care of the thing as a good father to a family
j)
Woodland - special rule (Article 557)
k) Flock of animals - replacement of the young of the animals that die each
year from natural causes or due to rapacity of beast, uncommon events deliver the remains which may have been saved from the misfortune, if it
perish in part, the usufruct shall continue on the part save
l)
Ordinary repairs - usufructuarys obligation, owner may demand and may

perform repairs at the expense of the usufructuary
m) Extra-Ordinary Repairs - obliged to notify the owner when the need for such
repairs is urgent
n) Demand payment for the improvement cause by extra-ordinary repairs made
by him on the thing
o) Pay debts of the owner in case the usufruct was made in violation of the
rights of creditors though he is not obligated to pay the obligation from a
mortgage
5. Extinguishment of Usufruct
a) Death of Usufructuary
b) Expiration of the term, fulfilment of the condition
c) Merger of the usufruct and ownership
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d) Renunciation of the usufructuary
e) Total loss - insurance (with or without contribution; building or no rebuilding)
f) Termination of the right of right of the person constituting the usufruct
g) Prescription
VI. INTERFERENCE TO PROPERTY (TRESPASS AND NUISANCE)
A. Distinguish Trespass from Nuisance
1. In Trespass there is an unlawful physical invasion in property; In Nuisance there
is injury to property or interference with its use or enjoyment without entry or
physical invasion of the property.
2. Injury - immediate in trespass but consequential only in nuisance/infringement.
3. In nuissance, the "interference" was not the result of a neighbor stealing land or
trespassing on the land. Instead, it arose from activities taking place on another
person's land that affected the enjoyment of that land.
B. Trespass
1. Concept:
a) Trespass to land is the most commonly associated with the term trespass; it
takes the form of an unlawful physical invasion or usurpation of rights in real
property. In acts of trespass, the trespasser should have no legal right on
the property
(1) Generally, it is not necessary to prove harm to a possessor's legally
protected interest; and
(2) Liability for unintentional intrusions; see good faith and bad faith.
b) Trespass to chattels, also known as trespass to goods or trespass to
personal property, is defined as "an intentional interference with the
possession of personal property by another.
c) The lessor is not obliged to answer for a mere act of trespass which a
person may cause on the use of the thing leased; but the lessee shall have a
direct action against the intruder (Art. 1664, NCC)
d) Mere acts of trespass does not suspend payment in sale (Art. 1590)
2. Causes of Action
a) The owner has the right of action against the holder and possessor of the
thing in order to recover it. (Art. 428, Par. 2, NCC)
b) Presumption of ownership is given to actual possessor (Art. 433, NCC)
c) In an action to recover, plaintiff must rely on the strength of his title and not
on the weakness of the defendants claim (Art. 434, NCC)
3. Remedies in Trespass in Real Properties
(1) The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he
may use force as may be reasonable necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property.
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(1) Usurpation of Real Rights under Article 312 of the RPC
(a) By means of violence against or intimidation of persons takes
possession of any real property
(b) Usurp any real rights in property belonging to another
(2) Other Form of Swindling under Article 316 of the RPC
(a) Any person who pretending to be the owner of any real property shall
convey, sell, encumber of mortgage the same
(b) Any Person who knowing that the property is encumbered shall
dispose the same although such encumbrance is not recorded
(c) Any person who sell, mortgage or encumber real property use as
surety in a bond
c) Civil Action for recovery of Possession
(1) Forceable Entry and Unlawful Detainer
(a) An action instituted by a person deprived of the possession of any
land or building by force, intimidation, threat, strategy, or stealth
(Forceable Entry) or a landlord, vendor, vendee or other person
against whom the possession of any land or building is unlawfully
withheld after the expiration of any contract, express or implied
(Unlawful Detainer).
(b) Action is instituted with the Municipal/City Trial Court
(c) Action must be instituted within one year
i)
From time of unlawful deprivation
ii) Demand to vacate

(d) Relief is restitution of possession with damages and costs
(e) Procedure is covered by Rule 70 of the Rules of Court on Forceable
Entry and Unlawful Detainer
i)
Summary Procedure
ii) Immediate Execution on Judgement

iii) A possessor deprived of his possession may within ten days from
filing of the complaint present a motion to secure from the court a
writ of preliminary injection to restore him in his possession. Court
must decide the motion whiting thirty (30) days. (Art. 539)
d) Accin Publiciana
(1) If cause of dispossession is not FEUD or upon expiration of one year to
commence an action for FEUD
e) Recovery of Ownership and Possession
(1) Accion Reivindicatoria
(2) The action is for recovery of ownership and not just possession
(3) The defendant claims ownership over the land such as when there is
adverse possession
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f) Writ of Possession - A separate action for recovery of possession is not
necessary, the court may issue a writ of possession to eject the occupant of
the land in the following instances:
(1) Land Registration Proceedings
(2) Extra-judicial Foreclosure of Mortgage as against the mortgagor
(3) Judicial Foreclosure as against the mortgagor
(4) Execution Sale
g) Eviction and Demolition under Republic Act No. 7279 (Urban
Development and Housing Act of 1992)
(1) Section 28. Eviction and Demolition - Eviction and demolition shall be
discourage. Eviction and demolition, however, may be allowed under the
following situations:
(a) When persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways,
and other public places such as sidewalks, roads, parks and
playgrounds;
(b) When government infrastructure projects with available ending are
about to be implemented; or
(c) When there is a tour order for eviction and demolition.
In the execution of eviction and demolition orders involving underprivileged and
homeless citizens, the following shall be mandatory:
(a) Notice upon the affected person at least thirty (30) days prior to the
date of eviction or demolition;
(b) Adequate consultations on the matter of settlement with the duly
designated representatives of the families to be resettled and the
affected communities int he areas where they are to be relocated;
(c) Presence of local government officials or their representatives during
eviction or demotion;
(d) Proper identification of all persons taking part in the demolition;
(e) Execution of eviction or demolition only during regular office hour from
Mondays to Fridays and during good weather unless the affected
families consent otherwise;
(f) No use of heavy equipment for demotion except for structures that are
permanent and of concrete materials;
(g) Proper Uniform for members of the PNP who shall occupy the first
line of law enforcement and observe proper disturbance control
procedure; and
(h) Adequate relocation, whether temporary or permanent, provided,
however that incases of eviction and demolition pursuant to a court
order involving underprivileged and homeless citizens, relocation shall
be undertaken by the local government unit concerned and the
National Housing Authority with the assistance of other government
agencies within forth-five (45) days form service of notice of final
judgement by the court, after which period the said order shall be
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executed: provided, further, that should relocation no be impossible
with the said period, financial assistance in the amount equivalent to
the prevailing minimum wage multiplied by sixty (60) days shall be
extended to the affected families by the local government unit
concerned.
4. In Personal Property
(1) The owner or lawful possessor of a thin has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he
may use force as may be reasonable necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property.
(1) Revised Penal Code Book II, Title 10 "Crime against Property"
(a) Robbery
(b) Brigandage
(c) Theft
(d) Arson
(e) Malicious Mischief
c) Replevin
(1) Is a lawsuit that enables a person to get back personal property taken
wrongfully or unlawfully and get compensation for resulting losses
(2) From medieval times, there has also come down to us a summary
process, known as replevin, by which a man out of whose possession
goods have been taken may obtain their return until the right to the goods
can be determined by a court of law. Replevin arose out of the need of a
turbulent society to discourage resort to self help and although for a long
time primarily used in disputes about distress between landlord and
tenant, it was gradually expanded to cover all cases of allegedly wrongful
dispossession. If the plaintiff wanted return of his chattel in specie,
replevin was a more appropriate remedy than either trespass or trover in
which only damages could be recovered. Restoration of the property is,
of course, only provisional, pending determination of title.
(3) Rule 60 of the Rules of Court (Recovery of possess of personal property)
(a) A party praying for the recovery of possession of personal property ay,
at the commencement of the action or at any time before answer,
apply for an order for the delivery of such property to him.
(b) The applicant must give bond, executed to the adverse party in
boodle the value of the property, for the return of the property to the
adverse party if such return be adjudged and for the payment to the
adverse party of such sum as he may recover from the applicant in
the action.
(c) The adverse party may file a counter bond double the value of the
property
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C. Nuisance
1. Concept
a) Definition: A condition, activity, or situation that interferes with the use or
enjoyment of property especially a non-transitory condition or persistent
activity that either injures the physical condition of adjacent land or interferes
with the use or with the enjoyment of another of his property.
b) Persons in possession of real property (land owners, lessors, etc.) are
entitled to the quiet enjoyment of their lands. If a neighbour interferes with
that quiet enjoyment, either by creating smells, sounds, pollution or any other
hazard that extends past the boundaries of the property, the affected party
may make a claim in nuisance.
c) Competing property uses often posed a nuisance to each other and as a
result, the cost of litigation to settle the conflict became prohibitive. As a
response, local governments started to adopt zoning ordinances or a system
of land use planning that allows only certain activities in a given location.
Zoning generally overrules nuisance.
d) Modern legislations on the environment is an adaptation of the doctrine of
nuisance to the more modern complex societies. In this new context, a
person's use of his properties may be regulated although the harmfully affect
of his actions on his neighbour is far from the traditional nuisance activities.
e) Tort arising from such acts, conditions, or failures to act when they occur
unreasonably, the main feature of which is the interest invaded is the use or
enjoyment of property rights. The tort emphasizes the harm to the plaintiff
rather than the conduct of the defendant.
f) Legally, the term nuisance is traditionally used in three ways:
(1) Describes an activity or condition that is harmful or annoying to others
(2) Describe the harm caused by the before-mentioned activity or condition
(3) Describe a legal liability that arises from the combination of the two.
2. Under the Civil Code:
a) An act, omission, establishment, business, condition of property or anything
which injures, annoys, offends, shocks, defies decency, morality, obstructs or
interferes with free passage or hinders or impairs the use of property (Art.
694, NCC)
3. Nuisance according to the object or objects that it affects (Art. 695, NCC)
a) Public Nuisance or Common Nuisance affects a community or
neighbourhood or any considerable number of persons although the extent
of annoyance or range or damage is unequal
b) Private nuisance affects only specific individuals and not the whole
community; violates only private rights
4. Nature
a) Nuisance Per Se - nuisance at all times and under any circumstances,
regardless of location or surroundings
b) Nuisance Per Incidens - nuisance by reason of the circumstance and
surroundings.
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c) A nuisance per se when it affects the immediate safety of persons and
property may be summarily abated under the law of necessity.
d) A nuisance per incidens, which depend upon certain conditions and
circumstance, and its existence being a question of fact, cannot be abated
without due hearing or judicial intervention.
5. Easement against nuisance
a) Every building or piece of land is subject to easement which prohibits the
proprietor or possessor from committing nuisance through noise, jarring,
offensive odor, smoke, heat, dust, water glare and other causes (Art. 682,
NCC)
b) Subject to zoning, health, police and other laws and emulations, factories
and shops may be maintained provided the least possible annoyance is
cause to the neighbourhood (Art. 683, NCC)
c) Condemnation of Property by reason of health, safety or security (Art. 436,
NCC)
6. Remedies
a) Prosecution under the Penal Code
(1) Limited to public nuisance
b) Civil Action
(1) If public nuisance - action shall be commence by the city or municipal
mayor (Art. 701, NCC)
(2) Exception - it may be filed by a private person if it is specially injurious to
him
c) Abatement of Public Nuisance without judicial proceeding
(1) District Health Office determines whether or not abatement without
judicial proceedings is the best remedy against a public nuisance (Art.
702, NCC).
(a) An exercise of police power by the State - the State may authorise its
officers to abate public nuisance without resort to legal proceedings
and without notice or hearing; Owner of the property not entitled to
compensation
(b) Limitation - it must be reasonable and effectively exercise; not unduly
oppressive to individuals; the injury must be done to the property is
necessary to accomplish the abatement.
(c) Persons performing extra-judicial abatement may be liable for
damages if he causes unnecessary injury or the the alleged nuisance
is declared by the court as not a real nuisance (Art. 707, NCC)
(2) By Private Persons (Art. 704, NCC)
(a) Private persons may abate a public nuisance that are injurious to him
by removing or if necessary destroying the thing; in extreme
necessity; timeliness
(b) Must not breech the peace
(c) Demand must be made to abate and owner refused
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(d) Must be made with the approval of the district health officer and with
assistance of the local police
(e) The value of the property must not exceed three thousand pesos
d) Private Nuisance by Private Persons (Art. 706)
(1) Procedure is similar to abatement of public nuisance by private person
D. Torts
1. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or
unlawful use of one's property in a manner that substantially interferes with the
enjoyment or use of another individual's property, without an actual Trespass or
physical invasion to the land.
2. A public nuisance is a criminal wrong; it is an act or omission that obstructs,
damages, or inconveniences the rights of the community. A public nuisance
interferes with the public as a class, not merely one person or a group of
citizens. However, if the individual suffers harm that is different from that
suffered by the general public, the individual may maintain a tort action for
damages. For example, if dynamiting has thrown a large boulder onto a public
highway, those who use the highway cannot maintain a nuisance action for the
inconvenience. However, a motorist who is injured from colliding with the
boulder may bring a tort action for personal injuries.
3. Private Nuisance as Tort
a) To determine accountability for an alleged private nuisance, a court will
examine three factors:
(1) The defendant's fault - the intention or the negligence of the defendant
that interfered with the plaintiff's use and enjoyment;
(2) The degree of interference with the plaintiff's interest - The law is not
intended to remedy trifles or redress petty annoyances. The interference
with the plaintiff's interest must be substantial.
(3) The reasonableness of the defendant's conduct - The law recognizes that
the activities of others must be accommodated to a certain extent,
particularly in matters of industry, commerce, or trade. The nature and
gravity of the harm is balanced against the burden of preventing the harm
and the usefulness of the conduct.
(4) The following are factors to be considered:
(a) Extent and duration of the disturbance;
(b) Nature of the harm;
(c) Social value of the plaintiff's use of his or her property or other
interest;
(d) Burden to the plaintiff in preventing the harm;
(e) Value of the defendant's conduct, in general and to the particular
community;
(f) Motivation of the defendant;
(g) Feasibility of the defendant's mitigating or preventing the harm;
(h) Locality and suitability of the uses of the land by both parties.
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E. Quieting of Title
1. An action brought to remove a cloud on title to real property by reason of any
instrument, record, claim, encumbrance or proceedings which is apparently
valid or effective but is in truth and in fact invalid, ineffective or unenforceable,
and may be prejudicial to said title. (Art. 476, NCC)
2. Legal or equitable title to or interest to real property
3. Return of all the benefits acquired by the plaintiff to the defendant (Art. 479,
NCC)
VII. LIMITATIONS OF OWNERSHIP
A. Injurious Use
1. General Rule
a) An owner cannot make use of the property in such manner as to injure the
rights of a third person.
2. On Ruinous Buildings and Trees in Danger of Falling
a) Chapter 4, Sections 482-483, NCC
b) Owner has the obligation to demolish or to execute necessary work
c) Administrative authority may order its demolition or to take measures to
insure public safety
B. Easements and Servitudes in General
1.
Definitions:
a) Easement and Servitude in General
(1) An interest in land owned by another person, consisting in the right to use
or control the land, or an area above or below it, for specific limited
purpose such as to cross it for access to a public road. Unlike lease, an
easement may last forever, but it does not give the holder the right to
possess, take from, improve or sell the land.
(2) An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different
owner. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate
does not belong (Articles 613, 614, 617 and 618, NCC).
(3) Easements are inseparable from the estate to which they actively or
passively belong.
(4) If the servient estate is divided between two or more persons, the
easement is not modified, and each of them must bear it on the part
which corresponds to him.
b) Dominant Estate
(1) The land benefitting from the estate is called the dominant estate
c) Servient Estate
(1) The land burdens by an easement is called servient estate
2. Kinds of Easements
a) Continuous or Discontinuous
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b) Apparent or Non-apparent
c) Positive or Negative
d) Legal and Voluntary
e) Legal and Private Easements
(1) Legal Easements: imposed by law for public use - governed by special
laws
(2) Private Easements: governed by the provisions of the Civil Code; without
prejudice to the provisions of general or local laws and ordinances for the
general welfare. These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or no injury is
suffered by a third person
3. Modes of Acquiring Easements
a) By Prescription
(1) Continuous and apparent easements - by title or prescription of 10 years
b) By Title
(1) Continuous non-apparent and discontinuous easements - by title
4. Rights and Obligations (Article 627-630, NCC)
a) Dominant Estate
(1) The owner of the dominant estate may, upon notice to the owner of the
servant estate, make at his own expense any works necessary for the
use and preservation of the servitude, but without altering it or rendering
it more burdensome.
(2) Rules
(a) Most convenient time;
(b) Most convenient manner; and
(c) Least inconvenience
b) Servient Estate
(1) The owner of the servient estate cannot impair, in any manner
whatsoever, the use of the servitude. The owner of the servient estate
retains the ownership of the portion on which the easement is
established, and may use the same in such a manner as not to affect the
exercise of the easement.
(2) Exception - should the easement become very inconvenient to the owner
of the servient estate, it may be changed at his expense, provided he
offers another place or manner equally convenient without injuring the
dominant estates.
5. Extinguishment of Easements
a) By merger;
b) By prescription or non-user (form and manner) for ten years, however, If the
dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the
others;
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c) By its condition making the easement unusable unless revived prior to
prescription;
d) By the contract (term, condition, redemption) as agreed by the owners of the
dominant and servient estate; and
e) By the renunciation of the owner of the dominant estate
6. Special Law: Presidential Decree No. 1096 (National Building Code of the
Philippines)
a) Repealed Republic Act No. 6541 (An Act to Ordain and Institute a National
Building Code of the Philippines
b) Section 301. Building Permits. - No person, firm or corporation, including any
agency or instrumentality of the government shall erect, construct, alter,
repair, move, convert or demolish any building or structure or cause the
same to be done without first obtaining a building permit therefor from the
Building Official assigned in the place where the subject building is located
or the building work is to be done.
c) Chapter 2: Administration and Enforcement (related to nuisance)
d) Chapter 6: Fire Resistive Requirements in Construction (related to party
walls)
e) Chapter 8: Light and Ventilation (related to party walls, light and view)
f) Chapter 9: Sanitation (related to waters, drainage of buildings)
g) Chapter 10: Building Projection Over Public Streets (related to right of way,
light and view, distances)
h) Chapter 12: General Design and Construction Requirements (related to
lateral and subjacent supports)
i)
Chapter 20: Signs (related to light and view)
7. Easement of Right of Way

a) Articles 649 to 657 of the Civil Code
b) Definition - The right to pass through property owned by another. ROW can
be established by contract, by longstanding use or by law.
c) Compulsory Right of Way - A person may demand ROW if his property is
enclosed by other properties under the following conditions.
(1) That the dominant estate is surrounded by other immovables and has no
adequate outlet to a public highway (Art. 649, par. 1, NCC);
(2) After payment of proper indemnity (Art. 649, par. 1, end, NCC);
(3) That the isolation was not due to acts of the proprietor of the dominant
estate (Art. 649, par. 4, NCC); and
(4) That the right of way claimed is at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest. (Art. 650, NCC)
d) Executive Order No. 621, s. 1980 (Amended EO 113, s. 1955)
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(1) National roads shall have a right of way of not less than twenty (20)
meters, provided that such minimum width may be reduced at the
discretion of the Minister of Public Highways to fifteen (15) meters in
highly urbanized areas, and that a right of way of at least sixty (60)
meters shall be reserved for roads constructed through unpatented public
land and at least one hundred twenty (120) meters reserved through
naturally forested areas of aesthetic or scientific value.
(2) What is a setback
(a) Setback an offset applied and enforced over a real property, in the
form of negative easement, from property line to building line,
measured perpendicularly.
(b) Front setback provides breathing air for streets, and provisions for
future government constructions
8. Easement of Party Wall (Art. 658-666, NCC)
a) The easement of party wall shall be governed by the provisions of this Title,
by the local ordinances and customs insofar as they do not conflict with the
same, and by the rules of coownership (Art. 658, NCC).
b) Presumption
(1) The existence of an easement of party wall is presumed, unless there is
a title, or exterior sign, or proof to the contrary in dividing walls of
adjoining buildings up to the point of common elevation; In dividing walls
of gardens or yards situated in cities, towns, or in rural communities; and
in fences, walls and live hedges dividing rural lands.
c) Renunciation
(1) If the owner of a building, supported by a party wall desires to demolish
the building, he may also renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent any damage which the
demolition may cause to the party wall, on this occasion only, shall be
borne by him (Art. 663, NCC). See also repairs on party walls.
d) Repairs
(1) The cost of repairs and construction of party walls and the maintenance
of fences, live hedges, ditches, and drains owned in common, shall be
borne by all the owners of the lands or tenements having the party wall in
their favor, in proportion to the right of each. Nevertheless, any owner
may exempt himself from contributing to this charge by renouncing his
part-ownership, except when the party wall supports a building belonging
to him (Art. 662, NCC)
e) Use
(1) Every part-owner of a party wall may use it in proportion to the right he
may have in the coownership, without interfering with the common and
respective uses by the other co-owners (Art. 666, NCC).
9. Easement of Light and View
a) Right to Light:
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(1) Right to light is a form of easement that gives an owner of a building with
windows a right to maintain the level of illumination necessary for use in
the building.
(2) Generally a right to light refers to the right to receive sufficient light
through an opening (such as a window), allowing ordinary comfortable
use and enjoyment of a dwelling, or ordinary beneficial use and
occupation of other buildings.
(3) The levels of acceptable light have not been objectively quantified and
are instead assessed on a case by case basis by the courts. However,
sufficient light according to the ordinary notions of mankind and
tangible deprivation to a building are arguable expressions that have
earned substantial fees to the legal and surveying professions and given
rise to specialists and expert witnesses in this field.
(4) Rights to light can be the result of 'easements', or can be nuisance
issues. It is a nuisance issue if there is interference with a persons right
to enjoy his property, such interference must be unreasonable to
constitute nuisance.
b) Covered by Articles 667-673 of the NCC
(1) General Rule (Art. 667, NCC)
(a) No part-owner may, without the consent of the others, open through
the party wall any window or aperture of any kind.
(2) Two Meter Rule
(a) No windows, apertures, balconies, or other similar projections which
afford a direct view upon or towards an adjoining land or tenement
can be made, without leaving a distance of two (2) meters between
the wall 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 a distance of sixty centimeters. The
non-observance of these distances does not give rise to prescription
(Article 670, NCC).
(b) Whenever by any title a right has been acquired to have direct views,
balconies or belvederes overlooking an adjoining property, the owner
of the servient estate cannot build thereon at less than a distance of
three meters to be measured in the manner provided in article 671.
Any stipulation permitting distances less than those prescribed in
article 670 is void. (Articles 673, NCC)
(3) Exception to the Two Meter Rule
(a) When the distances in Article 670 are not observed, the owner of a
wall which is not party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at the
height of the ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an iron
grating imbedded in the wall and with a wire screen (Article 667,
NCC).
(b) Separated by public highway or alley - not applicable to buildings
separated by a public way or alley, which is not less than three meters
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wide, subject to special regulations and local ordinances (Art. 672,
NCC).
(4) How distance is measured:
(a) The distance referred to in the preceding article shall be measured in
cases of direct views from the outer line of the wall when the openings
do not project, from the outer line of the latter when they do, and in
cases of oblique view from the dividing line between the two
properties (Article 671, NCC).
(5) Covered by Chapter VII (Light and Ventilation) of the National Building
Code of the Philippines (Presidential Decree No. 1096)
(a) Section 808. Window Openings (P.D. 1096) - Every room intended for
any use, not provided with artificial ventilation system as herein
specified in this Code, shall be provided with a window or windows
with a total free area of openings equal to at least ten percent of the
floor area of room, and such window shall open directly to a court,
yard, public street or alley, or open water courses.
(b) Section 804 (P.D. 1096) - Size and Dimension of Courts.
i)
Minimum size of courts and their least dimensions shall be

governed by the use, type of construction, and height of the
building as provided in the rules and regulations promulgated by
the Secretary, provided that the minimum horizontal dimension of
court shall be not less than 2.00 meters.
ii) All inner courts shall be connected to a street or yard, either by a

passageway with a minimum width of 1.20 meters or by a door
through a room or rooms.
iii) Every court shall have a width of not less than 2.00 meters for one
(1) or two (2) storey buildings. However, if the court is treated as a
yard or vice versa, this may be reduced to not less than 1.50
meters in cluster living units such as quadruplexes, rowhouses
and the like, with adjacent courts with an area of not less than 3.00
sq. meters. Provided further, that the separation walls or fences, if
any, shall not be higher than 2.00 meters.
10. Easement of Drainage of Buildings (Arts. 674-676, NCC)
a) General Rule: Owner should collect water falling on his land so as not to
cause damage
(1) The owner shall be obliged to collect the water in such a way as not to
cause damage to the adjacent land or tenement (Art. 674, NCC).
(2) The owner of a building shall be obliged to construct its roof or covering
in such manner that the rain water shall fall on his own land or on a street
or public place.
b) Easement of Drainage
(1) Whenever the yard or court of a house is surrounded by other houses,
and it is not possible to give an outlet through the house itself to the rain
water collected thereon, the establishment of an easement of drainage
can be demanded, giving an outlet to the water at the point of the
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contiguous lands or tenements where its egress may be easiest, and
establishing a conduit for the drainage in such manner as to cause the
least damage to the servient estate, after payment of the property
indemnity (Art. 676, NCC).
(2) The owner a piece of land, subject to the easement of receiving water
falling from roofs, may build in such manner as to receive the water upon
his own roof or give it another outlet in accordance with local ordinances
or customs, and in such a way as not to cause any nuisance or damage
whatever to the dominant estate (Art. 675, NCC).
(3) Local ordinances: simply adopts the letters of the National Building Code.
c) Section 904. Storm Drainage System (P.D. No.1096)
(1) Rainwater drainage shall not discharge to the sanitary sewer system.
(2) Adequate provisions shall be made to drain rainwater from low areas in
buildings and their premises.
(3) The drainage pipe installation and sewerage system of any premises
and/or connection with any public disposal or any acceptable terminal
shall conform to the Revised National Plumbing Code of the Philippines
d) Revised National Plumbing Code of the Philippines.
11. Easement on Distances (Articles 677-681, NCC)
a) Meaning
(1) Permanent and prohibitory easements and may run to the land in
perpetuity as long as the conditions that causes the easement exists;
(2) May or may not be compensable
b) Construction near fortresses
(1) No constructions can be built or plantings made near fortified places or
fortresses without compliance with the conditions required in special
laws, ordinances, and regulations relating thereto (Article 677, NCC).
c) Building of improvements and structures that may do damage to
neighbouring estates
(1) No person shall build any aqueduct, well, sewer, furnace, forge, chimney,
stable, depository of corrosive substances, machinery, or factory which
by reason of its nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and customs of the
place, and without making the necessary protective works, subject, in
regard to the manner thereof, to the conditions prescribed by such
regulations. These prohibitions cannot be altered or renounced by
stipulation on the part of the adjoining proprietors. In the absence of
regulations, such precautions shall be taken as may be considered
necessary, in order to avoid any damage to the neighbouring lands or
tenements (Article 678, NCC).
d) Branches of trees extending and fruits falling over neighbouring estates
(1) If the branches of any tree should extend over a neighbouring estate,
tenement, garden or yard, the owner of the latter shall have the right to
demand that they be cut off insofar as they may spread over his property,
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and, if it be the roots of a neighbouring tree which should penetrate into
the land of another, the latter may cut them off himself within his property
(Article 680, NCC).
(2) Fruits naturally falling upon adjacent land belong to the owner of said
land (Article 681, NCC).
12. Easement on Nuisance (Arts. 682-683, NCC)
a) Meaning
(1) Every building or piece of land is subject to the easement which prohibits
the proprietor or possessor from committing nuisance through noise,
jarring, offensive odour, smoke, heat, dust, water, glare and other causes
(Article 682, NCC).
b) Least possible annoyance to the neighbourhood
(1) Subject to zoning, health, police and other laws and regulations, factories
and shops may be maintained provided the least possible annoyance is
caused to the neighbourhood (Article 683, NCC)
c) Dangerous and ruinous buildings are also nuisances under P.D. 1096
(1) Section 216. Abatement of Dangerous Buildings When any building or
structure is found or declared to be dangerous or ruinous, the Building
Official shall order its repair, vacation or demolition depending upon the
degree of danger to life, health, or safety. This is without prejudice to
further action that may be taken under the provisions of Articles 482 and
694 to 707 of the Civil Code of the Philippines.
13. Easement of Lateral and Subjacent support (Arts. 684-687)
a) Meaning in law
(1) Lateral and subjacent support, in the law of property, describes the right a
landowner has to have that land physically supported in its natural state
by both adjoining land and underground structures.
b) Subsidence
(1) Any downward movement of the solid from its natural position; sinking of
the soil.
c) Example
(1) If a neighbour's excavation or excessive extraction of underground liquid
deposits (i.e. crude oil or aquifers) causes subsidence (e.g. causing the
landowner's land to cave in), the neighbour will be subject to strict liability
in a tort action. The neighbour will also be strictly liable for damage to
buildings on the landowner's property if the landowner can show that the
weight of the buildings did not contribute to the collapse of the land. If the
landowner is unable to make such a showing, the neighbour must be
shown to have been negligent in order for the landowner to recover
damages.
d) Excavations under the New Civil Code
(1) No proprietor shall make such excavations upon his land as to deprive
any adjacent land or building of sufficient lateral or subjacent support.
Any stipulation or testamentary provision allowing excavations that cause
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danger to an adjacent land or building shall be void. Article 686. The legal
easement of lateral and subjacent support is not only for buildings
standing at the time the excavations are made but also for constructions
that may be erected. Article 687. Any proprietor intending to make any
excavation contemplated in the three preceding articles shall notify all
owners of adjacent lands (Article 684 - 687, NCC).
e) Excavation under PD No. 1096
(1) Section 1202, P.D. 1096 - Excavation, Foundation, and Retaining Walls
(a) Subject to the provisions of Articles 684 to 686 of the Civil Code of the
Philippines on lateral and subjacent support, the design and quality of
materials used structurally in excavation, footings, and in foundations
shall conform to accepted engineering practice.
14. Easement relating to waters
a) Characterization of Water
(1) Diffuse surface water
(a) Common enemy rule - water is common enemy to all so everyone has
a right to get rid of it in any manner they see fit. The shortcoming of
this approach is the failure to consider the consequences when
neighboring land owners are looking out for their personal interest to
the detriment of the others.
(b) Civil law rule - adopted by Civil Law countries; an individual can get
rid of the water in a manner that is in accord with the natural flow of
the water. This approach favors the upstream land owners at the
expense of the downstream.
(c) Reasonable use - determines where the water should go based upon
what would be reasonable for the ordinary person under the
circumstance. The approach, while providing the greatest flexibility,
provides the greatest uncertainty.
(2) Naturally flowing water
(a) Prior appropriation theory - Whoever takes the water first has superior
rights to the water.
(b) Natural flow theory - rights to the water are dependent on the waters
natural flow not being disturbed. Favors the upstart owners in a
potential unfair manner.
(c) Reasonable use - determined on a case to case basis looking at what
is reasonable under the circumstance.
(3) Percolating water
(a) Definition - Percolating waters are those which ooze, seep, or filter
through the soil beneath the surface, without a defined channel, or in
a course that is unknown and not discoverable from surface
indications without excavation for that purpose.
(b) Absolute theory - property owner has an absolute ownership of any
water that percolates through their land. May be unduly prejudicial to
neighboring landowners.
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(c) Co-relative rights theory - rights to percolating water are based on the
amount of surface water owned. This does not consider the need or
reward the effort and ingenuity it may take to remove the water.
(d) Reasonable use theory - uses the reasonable person standard to
determine the rights of the rival claimants to the percolating water.
b) Articles 637-648 of the NCC
(1) General Rule
(a) Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as
well as the stones or earth which they carry with them. The owner of
the lower estate cannot construct works which will impede this
easement; neither can the owner of the higher estate make works
which will increase the burden.
(2) Easement of Aqueduct
(a) Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the
intervening estates, with the obligation to indemnify their owners, as
well as the owners of the lower estates upon which the waters may
filter or descend. (Article 642, NCC)
(b) For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not
be continuous, or its use depends upon the needs of the dominant
estate, or upon a schedule of alternate days or hours, (Article 646,
NCC)
(c) One who for the purpose of irrigating or improving his estate, has to
construct a stop lock or sluice gate in the bed of the stream from
which the water is to be taken, may demand that the owners of the
banks permit its construction, after payment of damages, including
those caused by the new easement to such owners and to the other
irrigators, (Article 647)
(d) Conditions: One desiring to make use of Easement of Aqueduct is
obliged:
i)
To prove that he can dispose of the water and that it is sufficient

for the use for which it is intended;
ii) To show that the proposed right of way is the most convenient and
the least onerous to third persons;
iii) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (Article 643, NCC)
(e) Limitations:
i)
Article 644. The easement of aqueduct for private interest cannot

be imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing. (559)
ii) Article 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not to cause the
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latter any damage, or render necessary repairs and cleanings
impossible. (560)
iii) Article 648. The establishment, extent, form and conditions of the
servitudes of waters, to which this section refers, shall be
governed by the special laws relating thereto insofar as no
provision therefor is made in this Code. (563a)
c) Three (3) meter Easement for Navigation
(1) The banks of rivers and streams, even in case they are of private
ownership, are subject throughout their entire length and within a zone of
three meters along their margins, to the easement of public use in the
general interest of navigation, floatage, fishing and salvage. Estates
adjoining the banks of navigable or floatable rivers are, furthermore,
subject to the easement of towpath for the exclusive service of river
navigation and floatage. Indemnity for the private owner is necessary
only if there is occupation of land for that purpose.
d) Building of Dam for Diversion of Water
(1) Whenever for the diversion or taking of water from a river or brook, or for
the use of any other continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is to construct it is not the
owner of the banks, or lands which must support it, he may establish the
easement of abutment of a dam, after payment of the proper indemnity.
(554)
e) Building of Dam for Diversion of Water
(1) Article 640. Compulsory easements for drawing water or for watering
animals can be imposed only for reasons of public use in favor of a town
or village, after payment of the proper indemnity.
(2) Article 641. Easements for drawing water and for watering animals carry
with them the obligation of the owners of the servient estates to allow
passage to persons and animals to the place where such easements are
to be used, and the indemnity shall include this service. (556)
C. Private Ownership vs. The State
1. Police Power
a) Land Use Regulations/Zoning
(1) In General
(a) Interference with the Traditional Property Rights Regime Traditionally, land owners have absolute freedom to use land except
only in nuisance and easement.
(b) Before, few regulations existed to control the use of land, due to the
seemingly endless amounts of it. As society shifted from rural to
urban, public land regulation became important, especially to city
governments trying to control industry, commerce, and housing within
their boundaries. The first zoning ordinance was passed in New York
City in 1916 and, by the 1930s, most states had adopted zoning laws.
In the 1970s, concerns about the environment and historic
preservation led to further regulation.
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(c) Criticism of zoning laws comes from those who see the restrictions as
a violation of property rights. It has been argued that local zoning
authorities can too easily strip property owners of their right to
unencumbered use of their land.
(d) Criticized as a means to promote social and economic segregation
through exclusion. These exclusionary zoning measures artificially
maintain high housing costs through various land-use regulations
such as maximum density requirements. Thus, lower income groups
deemed undesirable are effectively excluded from the given
community. i.e. gated subdivisions vs. slums
(e) In the American South, zoning was introduced as an explicit
mechanism for enforcing racial segregation of communities.
(f) Work against economic efficiency and hinder development in a free
economy. Poor zoning restriction are claimed to hinder the optimal
efficient usage of a given area.
(2) Land Use Regulation - Public regulations of the use and development of
land that generally focuses on four aspects of land use, namely:
(a) The type of use, such as whether it will be used for agricultural,
commercial, industrial, or residential purposes;
(b) The density of use, manifested in concerns over the height, with, bulk
or environmental impacts of the physical structure of the land;
(c) The aesthetic impact of the use, which may include the design and
placement of the structure of the land; and
(d) The effect of the particular use of the land on the cultural and social
values of the community
(3) Zoning - describes the control, usually by local authority, of the use of
land and of the buildings and improvements thereon. Areas of land are
divided by appropriate authorities into zones within which various uses
are permitted. It is a tool in land use planing.
(4) Terms
(a) Non-Conforming Uses - use that is impermissible under current
zoning restrictions but the is allowed because the use existed lawfully
before the restriction took effect.
(b) Amortisation
(c) Zoning Amendments
(d) Zoning Variance - A license or official authorization to depart form a
zoning law.
(e) Special Exceptions - An allowance in a zoning ordinance for special
use that are considered essential and are not fundamentally
incompatible with the original zoning regulation.
(f) Spot Zoning - Zoning a particular piece of land without regard for the
zoning of the larger area surrounding the land.
(g) Private Zoning - The use of restrictive covenants in private agreement
to restrict the use and occupancy of real property. Private zoning often
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covers such things as lot size, building line, architectural specification
and property uses.
(5) Laws on Land Use in the Philippines
(a) Batas Pambansa Blg. 220 - Authorizes the ministry of human
settlements to establish and promulgate different levels of standards
and technical requirements for economic and socialized housing
projects in urban and rural areas from those provided under
Presidential Decrees No. 957, 1216, 1067 and 1185.
(b) Presidential Decree No. 957 - regulates the sale of subdivision lots
and condominiums.
(c) Presidential Decree No. 1216 - defining "open space" in residential
subdivisions and amended section 31 of Presidential Decree No. 957
requiring subdivision owners to provide roads, alleys, sidewalks and
reserve open space for parks or recreational use)
(d) Republic Act No. 7160 - mandated the LGU to prepare and implement
a comprehensive land use plan (CLUP) and shall approve subdivision
plans.
(e) Executive Order No. 71 - implemented the provision of RA No. 7160
on the LGUs mandate to approve subdivision plans, to cities and
municipalities pursuant to R.A. No. 7160 (LGC).
(f) Executive Order No. 72 - implemented the provision of the LGC for
the preparation and implementation of the comprehensive Land Use
Plans. HLURBs role on standards.
(g) Republic Act No. 7279 - Urban Development and Housing Act
provided a comprehesive and continuing urban development and
housing program, establish the mechanism for its implementation.
(h) Proposed Land Use Act - 20 years of deliberation in Congress
(6) Environmental Regulations
(a) Land use and land management practices have a major impact on
natural resources including water, soil, nutrients, plants and animals.
(b) The major effect of land use on land cover since 1750 has been
deforestation of temperate regions. More recent significant effects of
land use include urban sprawl, soil erosion, soil degradation,
salinization, and desertification. Land-use change, together with use
of fossil fuels, are the major anthropogenic sources of carbon dioxide,
a dominant greenhouse gas.
(c) Many environmental law affects how property can be use.
(d) Environmental laws developed only in the 1960s and created a
comprehensive legislation that sometimes intersects with laws
governing property.
(7) Property and Ecology
(a) Land is not a passive entity waining to be transformed by its land
owner. Land is already at work, performing important services in its
unaltered state. Some ecological functions have been recognized and
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protected by law. Viewing land through the lens of natures economy
reduces the significance of property lines. (Joseph L. Sax, Property
Rights and the Economy of Nature, 45 Stan. L. Review. 1433, (1993)
(8) Theories
(a) Utilitarian theory - land is solely the owners property to develop as
the owner please
(b) Green theory - ecological ethic emphasises the moral duty of
humanity to act as a steward of natural life (J. Peter Bryne, Green
Property, 7 Const. Comment. 239, 243 (1990)
(c) Public Trust Doctrine - lands are deemed to be owned in trust by the
sovereign for the benefit of the public
(d) Bundle of rights - title does not include the right to violate the public
trust.
(9) Environmental Laws in the Philippines
(a) Presidential Decree No. 1586 Establishing an Environmental Impact
Statement System, including other Environmental Management
Related Measures and for other Purposes
(b) Presidential Decree No. 1152 Philippine Environmental
Code (amended)
(c) Republic Act No. 6969 Toxic Substances and Hazardous and Nuclear
Waste Act of 1990
(d) Republic Act No. 8749 Philippine Clean Air Act
(e) Republic Act No. 9003 Ecological Solid Waste Management Act of
2000
(f) Republic Act No. 9275 Philippine Clean Water Act No. 2004
2. Eminent Domain
a) Eminent domain allows the State or any of its entities to take property from
private owner who refuses to sell voluntarily. Government entities often need
to acquire property that is owned by private person.
b) The framer of our constitution viewed the eminent domain power as an
inherent attribute of sovereignty. But they recognised the tension between a
citizenss rights to own property and the governments interest in acquiring it
for the public good. Accordingly, the Constitution limits the governments
eminent domain power. These limits is contained in the Bill of Rights as
follows:
(1) Section 1. - No person shall be deprived of life, liberty and property
without due process of law, nor shall any person be denied the equal
protection of the laws;
(2) Section 9. - Private property shall not be taken for public use without just
compensation.
c) Under the Civil Code, no person shall be deprive of his property except by
competent authority and for pubic use and always upon payment of just
compensation (Art. 435, NCC)
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d) Regulatory Taking
(1) Conventional taking applies only when government physically seized
private property
(2) If it merely regulates the use of property under the police power to
prevent harm to the public, no taking occurred.
(3) But a regulation might restrict an owners right to such extent that it
becomes the functional equivalent of a seizure. So, when is the line
between an appropriate regulation and a regulatory taking?
3. Taxation
a) The theorem states that if trade in an externality is possible and there are
sufficiently low transaction costs, bargaining will lead to an efficient outcome
regardless of the initial allocation of property. In practice, obstacles to
bargaining or poorly defined property rights can prevent Coasian bargaining.
b) Meaning of Transaction Cost - any direct costs, as well as any concomitant
inefficiencies in production or misallocation that resulted from them. When
property rights are protected and maintained in any context, transaction
costs exist. In economics and related disciplines, a transaction cost is a cost
incurred in making an economic exchange. In the neoclassical approach,
enforcement-type costs within firms are not transaction costs. Transaction
costs consist of those costs that occur between firms or individuals from the
process of market exchange.
c) If transaction costs are prohibitively high then property rights will neither be
established nor maintained and property rights will be zero. The reverse,
however, is not necessarily true. If property rights are complete in some
situation, there are two possibilities, either transaction costs are zero, or
costs may have been incurred to guarantee the property rights simply
because the benefits of doing so exceed the costs - in which case
transaction costs are positive. Further, when property rights are zero,
transaction costs could also be zero. For example, if a property right could
never be established, despite the resources devoted towards such a goal, no
one would bother making any expenditures towards establishing property
rights and the good would remain unowned. For example, there are no
property rights over the planet Venus and no efforts have been made to
establish any.
D. Covenants, Conditions and Restrictions
1. Also known as private land use restriction
2. Historically, land use was viewed primarily as a private matter and not a public
concern. But under some circumstance, an owners plan might conflict with a
core policy embodied in a private land use restriction.
a) A real covenant is a promise concerning the use of land that benefits and
burdens the original owners and their successors.
b) In the Philippines, these restrictions is usually annotated in the certificate of
title to land and is considered as a burden. The annotation serves as a
notice to the buyer of the existence of the restriction and his/her acquiesce to
it when he/she buys the land.
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02 - Syllabus Property Discussion Guide

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Discussion Guide Property

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(c)Extent of Ownership (Art. 437, NCC)

Discussion Guide Property

(2) Distributive Justice

Discussion Guide Property

2. Adverse Possession and Prescription

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

(3)Exception to the Two Meter Rule

Discussion Guide Property

(6)Building of Dam for Diversion of Water

Discussion Guide Property

Hardin, Tragedy of the Commons, 162 Science 1243 (1968)

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Cass R. Sunstein, On Property and Constitutionalism, 14 Cardozo L. Rev. 907 (1993)

Discussion Guide Property

Discussion Guide Property

William Blackstone, Commentary on the Laws of England,

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Rights Over Things

Things and Property Distinguish

ii) Co-ownership (Simple, Partnerships, Corporations, and other

Immovable by nature - paragraphs 1 and 8

ii) Immovable by incorporation - paragraphs 2,3,4, and 6

Includes the surface and everything under it and he can construct

Discussion Guide Property

Discussion Guide Property

Tangible personal property refers to any type of property that can

ii) Intangible personal property or "intangibles" refers to personal

Statutes of limitations or prescriptive periods are usually shorter

Real Property Taxation - Land, Improvement and Machineries are

Discussion Guide Property

Discussion Guide Property

ii) Mortgage; and

ii) Mortis causa.

Discussion Guide Property

Lawful Interference in cases of acts of necessities Art. 432, NCC

ii) Compensate affected owner for damages

It carries with it the right to its product

ii) It carries with it the right to its increase

Limitation set by law

Discussion Guide Property

The use of property is subject to the duty of the state to promote

ii) Enhance the right of people to human dignity, reduce social,

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Discussion Guide Property

Act No. 496 and PD No. 1529

Discussion Guide Property

ii) In Bad Faith

ii) In Bad Faith

Discussion Guide Property