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PROPERTY

Dean Liza Lopez-Rosario


’19 - ‘20 Prelims + Finals AKPG

08/29

What is that term in science which can be connected to Property?


- Matter is anything that occupies space and has mass.

What do you mean when you say juridical entity?


- Fitness to be the subject of juridical relations.

[Dean LR] When the Civil Code makes use or gives that kind of definition - “The fitness to be the
subject of juridical relations” - the word subject, does it refer to a thing or a person?

When the law gives definition, “fitness to be the subject of juridical relations,” that fitness refers to the
juridical capacity of a person, and under Civil Law, when you talk about person, it does not only refer
to a human being. There are two kinds of persons: the natural and the juridical.

In so far as Civil Law is concerned, the word “person” is not the same as the word “person” appearing
under the dictionary. As a matter of fact, later on, when we take up the different modes of acquiring
ownership you will encounter another word “occupation,” which has another different meaning under
the law.

Be careful when it comes to the use of words. The mindset should already be legal, it’s not the ordinary
meaning.

So, the juridical capacity, which refers to the fitness to be the subject, so the subject there refers to a
person. The person under the Civil Code can be a natural person or a juridical person.

We cannot say that a juridical person is a thing, how come?

What’s one important distinction between a natural person and a juridical person?
- By nature, a natural person has physical existence while a juridical person, by nature, has no
physical existence.
- This explains why in Criminal Law, you cannot find a criminal case against a juridical person,
because by its very nature, it does not have any existence.
- Juridical entity refers to a person.

Matter

Is there any provision wherein the word “matter” appears?


- There is none.

So, if there is no provision in the CC, wherein the word matter appears, what do you think would be
the counterpart? The legal term for matter in the Civil Code?
- Object.

Let’s first talk about object in the context of Obligation, what is object?

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Refers to the conduct of the contracting parties: to do, not to do, to give.
- The other term is prestation.

Here you will see, when you encounter the word object, you have to find out from which point of view
you’re using it. From the point of view of obligation, the object will refer to the prestation, and prestation
is the conduct of the obligor: to give, to do, not to do.

If you use the word object from the point of view of Property, what does it mean?
- Object would be equivalent to property, which things that are in the possession of man.

Is there any difference between the words object, property, and thing? Or they are all the same? Are
they similar?
- The similarity is that they are possessed by man or susceptible to appropriation.

What is the difference?


- Thing exists and satifies human needs.
- Property are those that are in possession of man and are susceptible to appropriation.
- Object is …

In so far as obligations and contracts is concerned, what is the status of the sale of a human kidney?
Is it valid, void, voidable, resscible, or unenforceable? Why?
- Void.
- It is outside the commerce of man.

If I will ask you to choose among the three terms, object, thing, and property, what is the proper word
that we can apply to a human kidney, which is, if sold, the same would be considered void because it
is outside the commerce of man.
- Thing.

So going back to the question, do you agree that things and property are both capable of being
appropriated?
- No.
- Property are those things that are or may be susceptible to appropriation, while things are
objects that are in existence, but may or may not be appropriated.

So, in other words, the similarity between thing and property, both have physical existence, both can
be useful, but one may be appropriated while the other one cannot be appropriated or is outside the
commerce of man.

What can be appropriated is what we call in Civil Law as property, although be careful because even
the framers of the CC are inconsistent and sometimes they use the word thing.

All properties are things but not all things are property.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Object is another word for a thing or property, if it is used from the point of view of property, but if it is
used from the point of view of obligation, object refers to the prestation, which is the conduct of the
obligor, which can mean to give, to do, or not to do.

So having cleared the three words, let’s now connect it to the word matter. What is equivalent to matter
in Civil Law?
- Thing.

Is a human being a thing from the point of view of Civil Code?


- It would not fall under any of the three distinctions because they are not susceptible to
appropriation.

So, the human being, insofar as Civil Law is concerned, the proper word to be used is natural person,
who is the subject of a juridical relationship.

A thing cannot be a subject of a juridical relationship, it can be the object of the juridical relationship,
so the juridical relationship is the contract and part of that contract, if ever the agreement involves a
prestation because remember that contract is a source of an obligation.
- e.g. Agreement of natural persons in lending and borrowing of a book.
- When one promises to lend the book, he is entering into a juridical relationship, and in that
juridical relationship, which is a contract, gives rise to an obligation.
- What is the obligation? To deliver the book.
- The book is the object, the thing to be delivered.

Bill in Congress that marijuana can already be considered a medicinal plant, so the moment that bill
is approved, and once it is enacted to a law, so there is a drastic change. Marijuana is no longer a
thing, but it becomes a property.

Three elements that will make a thing a property: (U-S-A)


Utility
Substantivity
Capable of being appropriated

Article 415. Classification of Property based on Mobility

Aircon, if I ask you to classify it based on mobility, what type?


- Immovable property.

415 gives you an enumeration, now based on the enumeration, what particular provision can that
aircon fit into?
- Par. 5. of Art. 415.

What are the important elements that must be observed in order to ensure that the aircon is really an
immovable property?
- Intended by the owner.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

The word “intended” how should we construe it?


- The owner must have attached it.

Are all the things you see and all the property you see in the classroom that are attached physically
and are attached by the owner, they fall within that provision?
- They should also tend directly to the needs of the industry.

Does the aircon tend directly to the needs of the industry?


- Yes, the owner intended to place it on the building and also, it satisfies and directly tends to
the needs of the students.

Agree, disagree?
- It is an immovable.
- In case it would need to be replaced or removed, there would be destruction.

If we attempt to remove the aircon, there’s possibility that the ceiling fall because it is attached there?
- Not fall, but there is a part that would be destroyed.

But in order to maintain the aircon, you have to clean it. How is it cleaned?
- Remove the unit.

If there is a removal of the unit, does it mean that every time they clean that aircon, they should have
another aircon unit to replace it? Because according to you, once it is removed, it might be broken or
damaged.

Agree, disagree? (Carmina)


- No, aircon is not an immovable property.
- Classroom will still function even without the aircon.

Do we have to take into account how the classroom is used?


- It depends on how the persons in the classroom needs it.

[Dean LR] The word “intended” should be connected to the words industry or trade. In other words,
for a movable property to be considered as immovable under 415.
1) The owner of the real property placed it.
2) That personal or movable property is necessary in running the trade or industry of the owner
of the real property.
It’s not the intention of the owner to place it there permanently, but the word intention there is related
to the trade or industry. When you say necessary, that means without that personal or movable
property, there will be an effect in the operation of the trade or industry of the owner of the real property.

It is the trade or industry of the owner of the real property.


- Commodatum, Antichresis, Usufruct - the possession of the real property is given to a third
person who is not the owner of the real property

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Placed moveable property in the property, can they fall under Par. 5?
- They cannot because it must be the owner who placed it in because it is necessary in order to
run the trade or industry.

If the aircon is not working, do we have to suspend classes? Will it have any effect? The same question
will apply if the Meralco will cut the electrical supply. What is important to note is what are the elements
that should be complied so that a movable property, after complying with the requirements as
mentioned in that provision, can now be classified as immovable property.

Can you think of any property that would fall within the provision (Par. 4), it is the intention of the owner
to place it there permanently, thus, an immovable property.

What is the difference between Par. 4 and Par. 5? What’s the distinction?
- Par. 5 talks about the properties that tend directly to the industries or trade, while Par. 4 talks
about ornaments.

Examples under Par. 5


- Whiteboard - in an academic institution, it is necessary in order for it to operate as an
educational institution
- Chairs and tables

Examples above, physically are they still mobile?


[Dean LR] Yes. So, in Par. 5, you’re talking here about personal or moveable property that has
become immobilized or immovable because the two elements are present (1) it was the owner that
introduced them, (2) personal properties are necessary in the trade or industry of the owner of the
property. Necessary means without that property, the operation of the trade or industry will be affected.

Examples under Par. 4


- UST letters
- Be sure whether the letters are physically attached or they’re just simply placed on top of the
ground.

[Dean LR] There’s another kind of immovable property wherein the physical attachment is one criteria
for a movable property to be considered as an immovable.

So if it is the university that placed the UST letters on top of the ground, will that be enough so that it
can be considered as an immovable property under Par. 4?
- No, it is not enough that the owner placed the ornaments there.
- The owner must have also intended to place the property to be permanently attached to the
tenement.

So what is the distinction between Par. 4 and Par. 5?

Par. 4 Par. 5

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Refers to statues, reliefs, paintings, or - Refers to machineries, receptacles,


other objects - ornaments instruments, or implements
- Owner must have placed it - Owner must have placed it
- Intention of the owner to place it there - Objects are necessary to meet the
permanently needs of the owner’s industry or works
- Physical attachment is not
required
- e.g. Images of Mama Mary and St.
Dominic

Identify the important words or phrases that will qualify a movable property and become an immovable
property.

6
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

9/02

How will you construe the phrase “other objects?” (Par. 4)


- Statcon: Ejusdem generis.
- By associating it with the word “statutes, reliefs and paintings.”

And these properties that the law has enumerated, what is the common feature among them?
- They are placed by the owner for ornamentation.

Is there a need that they be physically attached to the real property?


- Physical attachment is not necessary.

[Dean LR] As a matter of fact, in this provision, the property remains mobile, you can still transfer its
location.

But what makes it immovable?


- By the intention of the owner to place them permanently to the tenement.

If let us say the painting is placed by the lessee in the apartment that he is leasing, can that painting
be considered a real or immovable property?
- No.
- Two elements in Par. 4 must concur:
- It was placed by the owner.
- It was intended to be placed permanently.
- Lessee is not the owner of the property; therefore, Par. 4 will not apply.

Example:
- Statue of Mama Mary
- Owners of the university intended to place the statue.

In Par. 4, what is important is the person who will place the personal property.

What about it Par. 5? What is an important phrase that makes the personal property an immovable
property?
- It [machineries, receptacles, etc.] must be intended by the owner of the tenement for an
industry or work, and which tend directly to meet the needs of the said industry or works.

If for example, in some rooms, there are projectors, can we consider projectors, for so long as it is the
intention of the owner to place it there for an industry or works, will that be an immovable property
under Par. 5, Art. 415?

The word “necessary,” how do we understand the word “necessary?”


- It is necessary when the purpose for it was intended cannot be fulfilled without the object.

When you say purpose for which it is intended, that purpose refers to what?

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- To the use of the property.


- The purpose should have something to do with the trade or industry of the owner of the real
property.
- Last part of Par. 5 is important.

Last part of Par. 5 is very important, “which tend directly to meet the needs of the said industry or
works” that means without the property, the operations of the industry would be affected.

Is the projector necessary?


- Educational institution.
- Projector is not necessary for the operation of the academic institution.
- No projectors, can still continue with the classes.

Wall clock?
- Should not be an ornament and should be placed there so that the professor can be aware of
the time.
- Problem: No battery daw.

[Dean LR] What is important in Pars. 4 and 5 is that these are the provisions wherein the law specifies
the person who introduced the ornament or the equipment.

In special contracts, contracts where there is a temporary transfer of possession, such as usufruct,
lease, commodatum, antichresis, if it is the bailee, usufructuary, or lessee, etc. who will introduce the
equipment or ornaments, then forget about the application of Pars. 4 and 5.

Unless there is a contract of agency where they acted as an agent of the lessor, bailor, naked owner,
etc.

Based on 415, is there a possibility that the personal property by nature becomes a real property, if
there is a physical attachment to the real property?
- Yes. Par. 3, Art. 415. Everything that is attached to an immovable in a fixed manner in such a
way that it cannot be separated without breaking the material or deterioration of the object.

What about other personal properties that have become immobilized after being attached, can you
identify them?

[Dean LR]
Whiteboard? If it is real property by incorporation, then it should’ve have affected the wall to which it
is attached.
Lights? Personal property.

Tiles = example of real property by incorporation.

Unlike in Par. 4 and 5, wherein the person who introduced the ornament or equipment is identified,
Par. 3, there is no mention about the person who placed the property. Even if it is the lessess,

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

usufructuary, bailee, it is immaterial. What is the most important criteria is after the personal property
is attached, the attachment is permanent to the point that if you intend to detach it, it will cause damage
or injury.

Aside from Par. 3, is there any other property enumerated in 415 which can fall under a real property
by incorporation?
- Par. 6 - can fall under both incorporation and destination
- It must be the intention of the owner to have it permanently attached to the land,
making it immovable by destination, as well as, it should form a permanent part of it,
making it an immovable by incorporation.
- Par. 7 - Fertilizers actually used in a land.
- If the fertilizer still remains in the sack, it remains to be a personal property. Once you
have actually used the fertilizer, its identity is extinguished, you cannot anymore
remove the fertilizer from the soil (especially if it needs to be dissolved).
- No mention about the person who applied the fertilizer, it can be the tenant, the fertilizer
for long as it is actually used, becomes a real property by incorporation.
- Trees, plants while they are actually attached to the land.
- “Actually attached to the land” = immovable
- Plants and trees being sold are still personal property
- e.g. Pine trees in Baguio being uprooted by SM
- Trees will die because roots will be damaged

[Dean LR] In real property by incorporation, person who placed the personal property is not important
but in real property by destination, you have to make sure if it is an
● 4. Ornament: (1) it must be the owner who placed it, (2) it is the intention of the owner to place
it there permanently;
● 5. Equipment: (1) it is the owner who placed it, (2) equipment is necessary to the trade and
industry, the purpose of the equipment is not important but its connection to the trade and
industry. So, when you say, necessary, without that equipment, the operation of that trade and
industry will be affected.

[Sales] How is a piece of land delivered upon payment of the full price?
- Constructive delivery - delivery of the title
- No actual delivery because of impossibility
- Land is, by its very nature, an immovable.

Types of Immovable Property (NIDA)


1. By nature
2. By incorporation
3. By destination
4. By analogy

What will fall under analogy is found in Par. 10.

Why is it important to identify between real property and personal property?

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

● Point of view of Civil Law


○ Real Property Mortgage vs. Chattel Mortgage or Pledge
○ Consensual (meeting of the minds) vs. Real (personal property is needed because
actual delivery perfects the contract) vs. Formal (compliance with the formalities
prescribed by law)

● Point of view of Taxation


○ Meralco case - Electrical posts are considered as personal property, therefore, City
Assessor has no right to collect.
○ Cabinet full of electrical wirings - real property, area where it is located can be taxed
by City Assessor for real estate tax

● Point of view of Criminal


○ Theft and robbery - personal property (electricity)
○ Usurpation - real property

● Point of view of Remedies [in recovering properties]?


- Personal Property
- Replevin
- Real Property
- Reconveyance / Ejectment - Forcible Entry or Unlawful Detainer

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

9/05

One classification of property is whether it can be replaced by another property and how is it called?
- Fungible property

Can you recall any juridical relationship wherein there is an object and the party is required to deliver,
but not the same object, but another object of the same kind and quality?
- Pawning
- You get a loan in exchange for your jewelry as a security.
- Mutuum (simple loan), pledge - two different contracts but are related.
- When you pawn, that means you are pledging.
- Pledge is an accessory contract because it cannot exist without the principal contract,
which is loan. It is an accessory contract considered as a security.
- Obligations and Contracts: Principal contract and accessory contract.
- Principal contract is a contract that can exist by itself, and its validity will affect
the validity of the accessory contract.
- Accessory contract’s existence will be dependent upon the principal contract.
- Which among these two requires a fungible property?
- In simple loan, there is a need to transfer ownership over the money extended to the
borrower. Since ownership is transferred, it cannot be expected that one would get the
same money with the same serial number of the bank notes.
- In so far, as pledge is concerned, it cannot require a fungible property because in
pledge, as soon as the obligation is paid, pledgee (pawnshop owner) has the duty to
return the property that serves as a security.

Fungible is a property that can be replaced by another property of the same kind and quality.

There is another classification taking into consideration the purpose of that property.
Consumable and non-consumable properties.
- Consumable properties cannot be used without being consumed, while non-consumable thing
can be used even without consuming the thing itself.
- e.g. Fire extinguisher - consumable, container of the fire extinguisher - non-consumable
- e.g. Matches
So in this type of classification, what you consider is the purpose for which it is being used.

In commodatum, CC requires a non-consumable property. Why?


Because the obligation created on the part of the bailee is to return the same property that was given
to him. In that kind of juridical transaction, what is involved is a non-consumable thing.

Whether a thing is consumable or not consumable: you take into consideration the purpose for which
it is going to be used.

Borrowing notes from a classmate = juridical relationship


- Commodatum
- You have the obligation to return the same notes (non-consumable property).

11
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

One important classification is based on ownership:


- Private ownership or public dominion.

Private ownership?
- Properties owned by private persons, whether natural or juridical.
- e.g. UST
- Property Registration Act must be connected.

Under Property Registration Act, what is the significance of the title?


- To quiet the title.
- To prove that you are the owner of the property.

Family Code: Failure to prove actual contribution despite the fact that the property is registered in your
name, that title would be cancelled.
- Co-ownership
- Common law spouses, bigamous marriages; Art. 147 and 148
- Title can still be contested?
- Yes. Co-ownership depends on the amount of contribution and title may be contested by the
legal spouse. Proof of contribution is a defense.
- No proof of contribution? It is presumed that the property is acquired during the valid marriage
and should form part of the Absolute Community or Conjugal Partnership.

What about property of public dominion? Another classification?


- For public purpose, public use, or development of national wealth

Can a private natural or juridical person acquire a property that belongs to the State?
- Only agricultural lands.
- Must be classified as alienable and disposable.

Property belonging to the State, is it within the commerce of man?


- No.
- Must be alienable and disposable.

Low-cost housing of the Gov’t? Camp Crame condominiums? Can ownership be acquired over them?
- Public lands converted into patrimonial lands.
- Patrimonial property - owned by the State and its subdivisions in private capacity and the
property ceases to be intended for public use or purpose.

[Dean LR]
Private property
- owned by a natural person or private juridical person
Public property
- Patrimonial or Public Dominion
- Patrimonial property is alienable and disposable.

12
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Public dominion not alienable, not disposable.


- State may validly reclassify public dominion into patrimonial property.
- Who is given the authority to reclassify? Executive and Legislative.

What is Regalian Doctrine?


- All lands of public domain belong to the State.
- Introduced by the Spaniards.

Mall of Asia
- Manila bay
- Reclaimed land from submerged land - State is the owner.
- Is it safe to enter into a contract of sale?
- No, because a mere reclamation does not convert the lands to alienable and disposable.
- To make sure whether it is patrimonial, go to the Department of Environment and Natural
Resources.

Donation of real property and acceptance of the donation must be in writing and notarized - lacking
formal requirements makes it void ab initio.

Any contract that is void ab initio, prescription does not apply.


- e.g. Forest land was donated to a corporation.
- Deed of donation, even if it was notarized, is void ab initio because the object of the donation
is outside the commerce of men and not just because prescription does not run against the
State.
- Object is outside the commerce of men, therefore, donation is void ab initio and prescription
does not apply.

Classification of property based on ownership.


- Even if it was already registered in a name, for as long as it is still classified as a property for
public dominion, the title will not help, unless the government will reclassify the property of
public dominion to patrimonial property.

Objects of cadastral proceedings and homestead patents = property that is patrimonial in character.

Classification of Things
1. Res nullius
- Belongs to no one and is not yet appropriated but may be susceptible to appropriation.
- e.g. Insects that have not yet been caught.

2. Res alicujus
- Tangible or intangible things which are owned privately, either in a collective or
individual capacity, belonging to someone.
- Already owned

What about fish?

13
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Depends. Prior to catching fish, res nullius. Once fishponds are under lease by State or privately
owned, caught, and sold in the market, res alicujus.

Original mode of acquiring ownership - hunting and fishing.

3. Res communes
- Belongs to everyone

4. Res derelicta
- Abandoned property with the intention of no longer owning them.

14
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

09/12

Different Kinds of Expenses


Buyer in Good Faith / Bad Faith + Builder, Planter, Sower in Good Faith

Good faith

Family Code provision that talks about good faith.


How should we construe good faith in relation to marriage under the Family Code?
- Marriage, in relation to the person who solemnized the marriage.
- The two parties contracting the marriage must, in good faith, believe that the officer is allowed
to solemnize.

Civil Code presentations = logical


Art. 1 - Introduces what the law is all about.
Art. 2 - When did the Civil Code take effect?
[Statcon] Important parts of the statute, there are parts which may or may not exist, like effectivity
clause. The old edition of the Civil Code codal, it contains the effectivity clause that is found in the 2nd
par. of Art. 2: “This Code shall take effect one yuear after its publication.” Did the Supreme Court
strictly apply that effectivity clause? No, case of Lara vs. Del Rosario, where Supreme Court already
emphasized the im,portance of publication. It has something to do with a labor issue. Before the Labor
Code took effect, employment is a contract governed by the Civil Code but at that time where a case
for illegal dismissal was filed, the Civil Code of the Philippines was about to be enacted, so prior to the
Civil Code was the Code of Commerce (?). So the issue is what law should govern, is it the code of
commerce or is it the civil Code?

For the Court to answer the issue, they should first establish what was effective at the time the case
arose? The Civil Code, it was not published in August 1949 but only in July. Unfortunately, instead of
immediately distributing the Code the copies were kept and the distribution only took place sometime
in August 1949.

Dilemma: If the Court will follow the effectivity clause as provided in the 2nd paragraph of Art. 2 of the
Civil Code, should it be during July, when it was first published or should it be August, when copies
were circulated.

Supreme Court: The purpose of publication is to inform the public about the existence of a law, it is
unfair if the reckoning point will be July, because although the Civil Code was published, it was never
circulated.

An exception to the rule. Thus, the SC decided to reckon the one year period not from the actual
publication but from the actual circulation because it is only when copies of the Code were circulated
that the purpose of publication [to inform the public] was complied.

Tanada vs. Tuvera


What laws are involved?

15
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Presidential Decrees, Executive Orders - created by the Executive Department


- Questioning how come the PDs and EOs were never published.
- Issue on publication: is there a need for PDs and EOs to be published?
- Laws do not only refer to those enacted by the Senate, but laws, as defined by St. Thomas
Aquinas, ordinance of reason promulgated by one in authority for the common good.
- e.g. University policies - it cannot be enforced against you or you cannot be bound by
that, unless you have a copy of the policy.
- Contesting the effectivity of the law that has not been disseminated and published.
- Merely confirmed Lara vs. Del Rosario - Publication is necessary to inform the public about
the existence of the law.
- Publication in Official Gazette.
- Publication in a newspaper of general circulation.
- Publication requirement is also useful in procedural law: special proceedings, adoption, judicial
foreclosure. Purpose is to inform the public.

Government comply with its responsibility to publish the law, up to the citizens to read it or not.

Article 3. Ignorance of the law excuses no one from compliance therewith.

Article 4. “Unless otherwise provided.”


- Application of the 15-day period.
- GR: Law takes effect following its effectivity clause.
- XPN: If the law does not provide for its effectivity, then you apply the 15-day period.

Considering Art. 3...


- Good faith refers to mistake of fact!

Two situations relating to Good Faith

Court administrator with the title of “justice” administers the marriage. Valid?
- Void ab initio.
- Did not make any representation, and has the title of a “Justice.”
- If he celebrated the marriage of parties believing in good faith that they had authority.
- Wrong to say that it is the good faith that would make the marriage valid for as long as you
understand the meaning of good faith, which is a mistake of fact.
- Court administrator is not one of those enumerated.
- Expressio umnius rule - what is not included in the enumeration s deemed excluded, except
mayor (pursuant to the Loc. Gov’t Code).

Juan, who misrepresented himself to be the Justice of the Court of Appeals because his boss was
incapacitated, and he celebrated the marriage.
- Mistake of fact.
- e.g. Ah Chong case in Criminal law

3 dates na walang karapatan kalimutan

16
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Aug. 30, 1950


- Aug. 8, 1988
- Jan. 1, 1992

Good faith in contracts, same meaning as that in PFR? Buyer, builder in good faith?

Who can be considered a buyer in good faith?


- One who honestly believed that there is nothing wrong with the property he is going to
purchase.
- Land that is “clean.”
- Free from encumbrance.
- A person who believes that the person from whom he receives the thing is the owner of the
thing and has the authority to pass on a valid title.
- One who believes that the person to whom he is transacting is the owner of the thing or has
the right to transfer ownership.

Lessee - Lessor; Property being leased: Agricultural


Lessee is asking for permission to construct a small house for in the agricultural land being rented.
Lessor said yes. Lessee constructed a small house.
Q: Will that be considered a builder in good faith?
- Yes, because the permission of the lessor was asked and it was granted.

Q: How will you connect good faith to the lessor-lessee example?


- Lessee may be considered as builder in good faith.

Builder in good faith


- A person who constructs on a land, which he believes was his or by which the landowner
accepts the construction.
- Asks the owner if he could build on the owner’s land and the owner consents to such, he can
be considered as a builder in good faith.
Q: So for so long as there is consent on the owner then he can be considered in good faith? Two
meanings of good faith?
- Consent on the part of the owner allowing him to construct
- If the builder believes that he is the owner
Any of the two? If there is consent then you become a builder in good faith?

How come there is a distinction given by the Code?

BPS in good faith


- All expenses that you incurred, you have the right to recover.

Lessee
- Not entitled to recovery.
- Lessor has the option to buy it: only 50% of the expenses incurred by the lessee for the
construction.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Lessor does not want to buy it: lessor is allowed tell lessee to remove the improvement at the
latter’s expenses.

Good faith in PROPERTY


- The belief that you are the owner of the property.
- The belief that the person from whom you acquired ownership has the right to transfer
ownership.
- That is the reason why you can be considered a buyer in good faith if…
- There is no encumbrance annotated at the back of the title.
- “Clean title” - it is the title that is clean.

- [LTD] What is the importance of registration? Why is there a need for registration?
- To bind third persons.
- It is the fault of the person who did not register.
- e.g. 1st mortgagee did not register the mortgage. Land was foreclosed by 2nd
mortgagee who annotated it. The annotation is binding because it is notice to
the public.
- 1st mortgagee cannot use ignorance of the law as an excuse. Why? Art. 3 of
the Civil Code.

- [Family Code] Marriage contract is merely a proof that the marriage is celebrated. It’s wrong
to say that if there is no marriage contract, there is no marriage because it is consensual. If
the marriage contract was not registered, it does not mean that there is no marriage contract.

- Birth certificate not registered does not mean that you were not born [hahaha]. Thesis topic by
Dean LR:
- If that is the purpose of registration, to bind third persons, how come according to the
new Domestic Adoption Act, birth certificate is confidential.
- Here is a document that is confidential, and yet you require publication to third persons.
How can you bind third persons if it is confidential?

To know you are a buyer in good faith, would you just simply rely on the xerox copy of the title given
to you by the seller?
- No.
- The annotation takes place in the original copy, which is in the possession of the Registry of
Deeds.
- Two titles: (1) duplicate and (2) original.
- Who is the holder of the duplicate? The owner.
- Based on Supreme Court decisions, you can be considered a buyer in good faith if you
exhausted everything to investigate whether it is a clean title or not.
- e.g. Go to the Registry of Deeds and ask for a certified true copy of the title.

Same thing: consent on the part of the lessor.


- The real meaning of good faith in relation to Property:

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Buyer in good faith, belief that the property has a clean title after exhausting all
remedies, belief that the person from whom the property is acquired has the authority
to sell the property.
- Good faith of a builder, planter, sower:
- Belief that he owns the property.
- Because of that belief, definitely will spend more.
- Why do you spend for a property that does not belong to you?
- e.g. Lessee
- In case of ejectment, if the lessee does not want to get out of the property that
he is leasing, the owner can demand for the removal of the house built.
- Land, principal. House, accessory.
- Accession industrial
- BPS is entitled to full recovery, while a lessee does not have that benefit.
- Lessee is aware that he cannot retain the property perpetually.
- Civil Code: 99 years maximum.

Good Faith
- Family Code: mistake of fact
- Contracts: Belief of ownership of property.
- [LTD] Cadastral proceedings or homestead patent:
- How many years for you to be qualified?
- Good faith: 10 years.
- Bad faith: 30 years.

Real Right and Personal Right


- Succession - mode of acquiring ownership over property, right, obligation
- Obligation is not really inherited. Why?
- Before there can be partition with distribution, creditors are given preferential right.
That is the reason why in the probate of a will, there is a need for publication to inform
the public, especially the creditors so that they may claim in the estate.
- Persons - estate is a juridical person
- Pending case for a collection of a sum of money, defendant dies.
- Defendant is not replaced with the wife or the heirs of the defendant, but you replace
it with the estate.

What is the “right” that can be inherited from the deceased?

Real Right vs. Personal Right

Real Right Personal Right


(recitation) (recitation)

- Enforceable against the whole world. - Power to demand fulfillment of an


- Can be enforced even against third obligation to give and not to give.
persons.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Rights attached to the property


regardless of who the owner may be.
- Follows the owner wherever they go.
- Confers to the holder of the property
autonomous power, which from it can be
derived certain economic advantages
regardless of whoever is the holder of the
property at that time.
- Right stays with the object regardless of
whoever the holder of the object is.

Example of a real right?


- Compulsory heirs must know what right forms part of the inheritance.
- Property is clearly separate and distinct from right.

Real right is immovable? Building that can be possessed? How will you distinguish it from property?

Example of a real right attached to the property?


- Right to usufruct.
- Art. 562 of NCC
- The right of a person to enjoy the property of another with the obligation to preserve the object’s
form and substance.
- In usufruct, the right is attached to the property and what is transferred to usufructuary is the
right to use and the right to possess.

Same as lease? What makes it distinct from lease? Is it also a real right? What happens if the lessee
dies? Who will be in the possession of the property upon the death of the lessee?
- In lease, it is onerous. There is always a price given to the lessor.
- In usufruct, it may be gratuitous or onerous depending on the agreement of the parties.

[Remedial Law] Action in rem and action in personam

Action in rem Action in personam


[Dean LR] [Dean LR]

- Proceed despite the non-appearance of - Right attached to the person himself.


the defendant. - If the person dies or disappears, no one
- Action that is attached to the property. can claim it anymore.
- Court can still decide on it and dispose of
it, because the issue is the right that is Example:
attached to the property. Action for support against mother who is not
- However, if what you will file is an action around.
for support. - Action will not prosper.
- It is a right that is attached to the person.
Example: - Because of the absence, the court will
Judicial foreclosure of real estate mortgage. not decide on it.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Even if the mortgagor who owns the - Even if the court decides on it, how can it
property does not appear in the hearing be enforced?
that case will be decided. -
- Because the issue there is related to the
property.
- [Special Contracts] Even if property was
already used as a collateral, it can still be
disposed of and sold.
- If it was sold and later on the mortgagee
was not paid and he files a petition for
judicial foreclosure, even if the owner is
already another person, the mortgagee
still has the right to recover the property,
which will be sold at public auction.
- Transfer of ownership, but since the right
to mortgage is attached to property, it is
immaterial who is the owner.
- The right that is attached to the property
is retained.

Rent Control Act


- Property is being leased for residential purpose.
- There is no provision that the death of the original lessee will terminate the contract of lease.
- Unless there is a provision in the contract of lease that the death of the lessee or the lessor
will terminate the contract, GR: Right to least is a real right and is attached to the property.

Succession
- Mode of acquiring ownership over property, right, and obligations.
- Property: land; Right: lease.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

9/16

Necessary expenses
- Expense for the preservation without which the thing would deteriorate or might perish.

What do you mean by the word “perish?”


- Be careful with the terms.
- Need to go back to the property as to how they are classified to see the connection.

Will you agree that in both properties consumable or non-consumable, if no necessary expense will
be applied both will perish?

What do you mean when you say “perish?”


[Recit]
- Thing becomes completely useless.
- It would not serve its purpose.
- The object will not be used in a manner which its intended purpose should be.
- Will not serve its purpose and will cease to exist.

There’s a distinction between not being able to serve its purpose and ceasing to exist. Which is which?

Is it correct to say that when a necessary expense would not be applied to a property, whether it is
consumable or non-consumable, the effect would be the same for both?
- Non-consumable
- Can be used without consuming the object.
- Perish cannot be used to a non-consumable property.
- The appropriate word: deteriorate.
- Consumable
- Perish

Example for necessary expenses


- There is a need for incurring it regularly.
- Need not be daily, it may quarterly, annually.

Non-consumable
- Maintenance of the air-conditioner.
- Has to be cleaned, not an ordinary person who is capacitated to clean an aircon unit. Someone
is trained to do that, which entails necessary expenses.
- If the aircon will not be cleaned regularly, then there’s a possibility that it might not operate
efficiently.

Consumable
- Preservatives in canned goods, since the canned goods will not serve its purpose of being
stored for a long time.
- Preservatives are needed and necessary for the canned goods to serve its purpose.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Flowers, vegetables. There might be a mechanism in order to preserve them.

Useful expenses
- Expenses which increases the productivity of the thing or raises the value of it.

Example of useful expenses


- Speakers, CCTV, air-conditioner.
- Factors why the tuition is increasing.
- Hospital? Less amenities, cheaper room.
- Adds value = useful expenses.

Ornamental expenses
- Adds value to the thing but are not essential to the preservation or to the usefulness of the
thing.
- May be for decoration.

Example of ornamental expenses


- Speaker
- Not necessary for conducting classes

[Dean LR] Speaker - how big is the size of the room?


- e.g. classroom - seems like the speaker in unnecessary.
- Is an ornamental expense.
- It could have been different if the projector is retained and the speaker is placed so that it
might, in a way, help the students.

Re-painting of the wall? What kind of expense is that?


- Frequent changing colors, no longer necessary or useful, it becomes ornamental (e.g.
changing of colors depending on politicians).

Ordinary Expenses vs. Extraordinary Expenses

Ordinary Expenses Extraordinary Expenses

- Those expenses incurred in the course - Expenses that are essential for the
of the actual use of the property. preservation of the property.
- Ordinary wear and tear of the property. - Same as the necessary expense.
- To be shouldered by the person in
possession of the property.
- The one in temporary possession.

Contract
- One of the sources of an obligation.
- Once perfected, obligations arise.
- One of the obligations that will have to be resolved is about the expenses.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

What are the expenses that the lessee has to shoulder and what are the expenses that the lessor
should be responsible for?
- Electricity, water.
- For the preservation of the property, since the owner gets the benefit, the owner should be
liable for it.

[Antichresis]
- Civil Code says that the necessary expenses will be shouldered by the antichretic creditor,
which will be charged against the fruits of the property, since the property belongs to the
debtor, so that means, it is really the debtor who is responsible for it.

- The provision is similar to [Tax] indirect taxation, where the one liable passed the liability to
another person (e.g. VAT - owner of the business should be liable for it but he passes it to the
consumers).

Doctrine of Self-help
- It is the employment of such reasonable force in defense of one’s properties.
- Employed in order to repel or prevent an actual or threatened unlawful physical invasion or
usurpation of the property.

[Crim] Self-defense
- There must be imminent or actual danger, wherein a person uses acts in order to prevent or
repel such acts of the offender.
- Defense of one’s life, one’s property, or the life one’s relatives.

What is the connection?


- Defense of one’s property is the one incorporated in Civil Code on Property, which we now
call the doctrine of self-help.
- To invoke the doctrine of self-help, the requirements in self-defense should be the same
requirements for the doctrine of self-help.
- There must be force or violence used.
- The owner, to prevent or repel an imminent or a threat to his property, he may use
reasonable force.

Can you use reasonable force to remove someone already occupying your land?
(e.g. Nipa hut built by another person on the land, who is now occupying the same)
- No!
- Interference is already complete, and there is no more imminent threat or danger on the land.
There is nothing to repel.

What is the remedy?


- Compel the builder to remove the house built on the land at his expense.
- Judicial remedies.
- [Remedial Law] Action for ejectment - summary, period should be shorter.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Unlawful detainer and forcible entry - filing should be within one year from the time you make
a demand.

Doctrine of Incomplete Privilege


- Owner cannot prohibit an action of another if the owner’s property is causing imminent danger
or threatened damage to the properties of another.

Example:
- House being razed by fire, the only way to stop the fire is through the fire truck’s hose.
However, there is a property that impedes the way of the fire truck, then the firemen have the
right to destroy a portion of that property to give way. Otherwise, the fire would just spread out
and cause damage to the neighboring properties.
- Continuous rain and the water in the dam is overflowing. To preserve the dam, water will have
to be released.

How come it is incomplete?


- Even if you have the right over your property and those underneath and above it, there are
situations that will stop you from asserting full dominion over your property.

Example: [Easement regarding water]


- The owner of the lower lot has no right to prevent the water coming from the higher portion.

Six (6) rights of an owner (memorize!)


- Identifying the object of the contract
- Identifying the rights that may be transferred and retained

- Lease - lessor to lessee


- Lessee:
- Possess, use, abuse, enjoy fruits (depending on the purpose of the
property leased)
- Lessor:
- cannot recover if there is a contract wherein the period of lease is
clearly defined; cannot abuse because he is not in physical
possession;
- can enjoy the fruits; can dispose, unless lessee is given the right of first
refusal.

- Deposit - depositor to depositary


- Commodatum - bailor to bailee
- Antichresis - antichretic creditor to antichretic debtor
- Pledge - pledgor to pledgee
- Usufruct - naked owner to the usufructuary

1. Possess
2. To Enjoy the Fruits

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

● What do you mean by fruits?


○ e.g. Rents collected - civil fruits produced by the property itself
○ Natural, industrial, civil fruits
● Lessee allowed to enjoy fruits?
○ Generally, lessee cannot enjoy fruits because fruits in the lease is the rent paid
by the lessee to the lessor.
○ Lessee may enjoy the fruits if the lessor agreed that sublease is allowed, then
the rent of the sub-lessee as the fruit that the lessee can enjoy.
○ Stipulation in the contract that if there are fruits produced, the lessee could
enjoy it.

● Dean LR [Oblicon]
○ One of the effects of an obligation, the obligor has the responsibility to deliver
the fruits and the accessions at the time the obligation to deliver arises
● What do you mean by fruits? Accession?
○ Fruit [in accession] can refer to a natural fruit (spontaneous products of the soil
or young of the animal), an industrial fruit, or a civil fruit.
● Lease
○ Lessee may enjoy a civil fruit if the lessor will allow the lessee to sublease the
property being leased.
○ In lease contracts, it depends upon what is the purpose of the property being
leased.
○ e.g.
■ Residential - Rent Control Act may apply and a lessee can sublease if
there is written consent on the part of the lessor
■ Non-residential - commercial or industrial or agricultural; Civil Code will
apply and if there is no express prohibition in a contract of lease, the
lessee can sublease and will be entitled to fruits.
3. Dispose
4. Recover
5. Abuse
● [Recit] may use the property with the intention to extinguish it; consumption of the thing
by its use; can even destroy it because it is your property - you can have the right to
use it for full consumption or destroy it; using the thing not according to its purpose.

Borrowing of a book
- Enter into a juridical relation when you borrow a book? Yes.
- Contract of commodatum
- For as long as the primary intention is not changed, which is allowing the bailee to use
the property gratuitously, even if bailor finds out that she is reproducing the notes and
selling them, it remains to be a commodatum.
- But! If the original intention is changed, instead of just simply allowing her to use it, this
time, allowing her to gain profit out of the sale of the notes. It ceases to be a
commodatum and becomes a different contract.
- Rights transferred?

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Rights to use, to possess

Novation
- Not only change of object or parties, but even the terms and conditions of the contract.
- There can be a novation of the contract.

Limitations

Three inherent powers of the State:


1. Police power - power of the State to prescribe rules and regulations to promote public welfare
and safety; power to interfere with and limit the rights in order to promote common good; can
be used to restrict and regulate the enjoyment of such properties in order to protect the general
welfare of the people.
2. Taxation - raise revenue to defray the necessary expenses of the government; real property
tax; estate tax.
3. Eminent domain

Police power vs. Eminent domain (with regards to property)


[recit + Dean LR]
Police power
- destruction is employed on properties for the promotion of the common good
- Destruction of property
- No just compensation

Eminent domain
- Taking of one’s property with just compensation
- Preservation; property will have to be used for a public purpose
- Forced sale
- Owner does not want to dispose of the property, but he is compelled by the State.

- Both powers are being used by the State


- Build, Build, Build project - private properties have been taken = eminent domain.
- Instruction of the President to clear the streets - almost all local governments are doing
the same thing = police power.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

10/3

Hidden Treasure
1. Money, jewelry, or any precious objects.
2. Owner is unknown.
3. Discovery is by chance.
4. Finder is not a trespasser.

Example: Scavenger found a bag full of US dollars in a dumpsite.


- US dollars = money, jewelry, precious objects.
- Discovery is by chance
- Not a trespasser = dumpsite
- Is the owner unknown?
- No, someone appearing and claiming that the bag of money belongs to him is a clear
manifestation that the owner is known.
- Exchanging PH peso to dollars - Regardless of the number of currency or paper bill
that will be given, the bank will ensure that all serial numbers in the paper bills are
noted before releasing. It is an indication that the paper bill is already in the possession
of Mr. X.

[Provision] No finders keepers.


- Anything that you find which does not belong to you, you have the obligation to surrender it to
the proper authorities.
- Civil Code: It does not belong to you, so somebody should own it, you have the responsibility
to surrender it to the proper authorities.
- Why? Tantamount to unjust enrichment.

Who should be the owner of the hidden treasure?


- 50% owner of the property, 50% to the finder.

Can the lessee, usufructuary, antichretic creditor, or any person who is given temporary possession
be entitled to the hidden treasure?
- It depends
- If he is the finder, then he is entitled to 50%.
- If he is not the finder, even if he is in temporary possession, he will not be entitled to
any share of the hidden treasure.

[Family Code] Assuming that the finder is married, will the share of the finder be considered as an
exclusive property?
- Share of the finder, who is married, will form part of the conjugal partnership or absolute
community property.
- Unless he keeps it a secret [haha].

Does the State have the right to acquire?

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Yes, if it is of interest to science and arts, provided that proper compensation will be given by
the State.

Example:
Feng shui believer who was advised by the feng shui expert that there might be a hidden treasure in
the backyard. Thus, the services of two men were hired with the intention to look for the alleged hidden
treasure, which was actually found and contained several pieces of jewelry. Can the provisions
governing hidden treasure be applied?

Accession

[Oblicon: Nature and effects of obligations]


Observance of the diligence of a good father of a family as expected from the obligor.
Another thing that is expected from the obligor is the delivery of the accessions, the fruits, the
accessories. Is there a distinction between them? And is the delivery of the accessions, fruits,
accessories an absolute obligation on the part of the buyer?
- Contract of sale: The delivery of the fruits, accessions, accessories accrues at the time the
obligation to deliver arises.
- Contract to sell: The delivery of the fruits, accessions, accessories accrues upon full payment
of the contract price.
- Full payment = fulfillment of condition
- Condition is an event.
- Seller will now have the obligation to deliver ownership after the fulfillment of the
condition, which is full payment of the contract price.

Example: When the land was sold it was barren but on the day that the seller was obliged to deliver
the land, there are already fruit-bearing trees. Does the seller have the right to increase the contract
price because at the time of the actual delivery, there are already fruit-bearing trees?
- Natural fruits: Spontaneous product of the soil or young of an animal. Produced by the soil
without any human intervention.
- e.g. Papaya
- As long as, on the part of the buyer, he has already fulfilled the condition of paying the full
contract price, in the delivery of that piece of land, the seller has the obligation to deliver the
fruits, accessions, accessories.
- Seller has no right to uproot the growing trees, they will be forming part of the property that will
be delivered to the buyer.
- Reckoning point: time when the obligation to deliver arises.

Is there a distinction among the three [fruits, accessions, accessories]?


Example: Car + Accessories > Are they the one contemplated as “accessories” in the Civil Code that
upon the delivery of the car it’s the obligation of the obligor to deliver? Example: Condo + Fully
furnished or not furnished > Are the furniture “accessories” contemplated in the Civil Code?

What if they can be removed without causing injury?


- Option to remove it or not to remove it.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- If you will be removing them, will it have any effect on the price of the car?
- Retained, included in the sale of the car = Price will be higher.
- Detached, not included in the sale = Price will be lower.

How should we understand the word accessory?


Principle: Accessory follows the principal. Does it have the same meaning as the “accessory” being
pertained to? Connect it with the obligation of the obligor to deliver the fruits, accessions, accessories
at the time the obligation to deliver arises.

Accessory
- In layman’s terms, “pampaganda.”
- Accessory is an ornament.
But is that the definition that we have to apply when we use the principle “accessory follows the
principal?” No!

Civil Code: Rules in identifying which is the principal and the accessory.
“Accessory” = ambiguous in so far as Civil law is concerned.
- First definition: ornament
- Attached to the property and the removal will not cause any kind of injury.
- Second definition [rules applicable to adjunction (?)]:
- There is an incorporation that is permanent.
- Test of permanency: Once you try to detach it, damage and injury will be caused.
Example:
- Personal property attached to the body with two properties where identity of both is retained.
- Two personal properties attached to each other and if you try to detach one from the other it
will cause damage or injury.
- Eyeglass > composed of frame and lens.

Distinction between an accessory as an ornament and accessory as a component of accession.


Example
- Shoes > leather and sole [accession] / shoes and shoelace [accessory].

Accession anything that is… (API)


- Attached
- Produced
- Incorporated

Accession
- Cannot be considered as a mode of acquiring ownership.
- Is an extension of ownership.
- Can involve a real or immovable property and a movable or personal property.

Accession discreta - accession involving real property


Meaning of discreta (DFA):
- Discreta

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Fruits
- Accession

Refers to the three kinds of fruits and gives an idea that the “fruit” an ordinary person knows is not the
same definition of what a “fruit” is, insofar as the Civil Code is concerned.

“Fruits” in Civil Law


- Natural
- Industrial
- Civil - e.g. rental

Young of animals through artificial insemination? Piglets are natural or industrial?


- Fundamental rule in [Statcon]: If the law is clear, there is no room for construction.
- Civil Code: Natural fruits are spontaneous products of the soil or young of the animal.
- Civil Code: Industrial fruits are products of the soil through cultivation or labor.
Regardless of whether the animal is cloned or a product of artificial insemination, it remains to be a
natural fruit.

Example of industrial fruit which needs human intervention for it to grow? Rice!

Accession involving immovable property - accession caused by external forces.

Remember for alluvion and avulsion: Filipino pronunciation - maragsa vs. malumay
- Alluvion
- Malumay
- Not identifiable particles.
- Example: Go to a beach - small particles are being pushed by the water to the shore.
- [LTD] - Area of your property is increasing. Is it automatic that it binds third persons?
No, need to pass through the court, get the services of the geodetic engineer, and
register.

- Avulsion
- Maragsa
- Refers to an identifiable portion of a piece of land which because of the movement of
the water was detached from one’s property and is attached to another’s property.
- Delayed accession
- Owner of the property where that identifiable portion was detached is given a period
of 2 years to claim.
- How do you identify that portion of land? How can you detach and attach the land, if
by its nature [Art. 415(1)], it is immovable?

- Uprooted trees
- Is it feasible for the owner to identify his tree? [haha]
- Owner of the uprooted trees will have the right to reclaim the uprooted trees.
- Owner of the trees is given a time to reclaim it: 6 months.

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PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Uprooted trees = delayed accession.


- Because within 6 months, the owner of the property where the uprooted trees
are now located cannot claim that these trees would be considered as an
extension of his property.
- Only after the lapse of 6 months.
- Law is not clear as to what is the reckoning point in the computation of the 6-
month period.
- Justice dictates that it should be counted from the time when the trees fall in
the property of another person.

- Formation of an island
- Depends upon where the island is formed.
- What if the problem does not indicate the body of water where the island is formed?
Answer should be it depends.

- If the island is formed in a non-navigable river, it belongs to the owner of the property
nearest to the island.
- In between two different properties belong to two different persons, co-ownership is
created by operation of law.
- [Family Code; Arts. 147 + 148]: Co-ownership is also applicable to common
law relationships and void marriages.
- If the island is formed in a navigable river, applying the Regalian doctrine, the island
belongs to the State.

- Change of the course of the riverbed


- Recall the different modes of extinguishing an obligation? Compensation, which takes
place in this case.
- The owner of the property wherein the new course of the water is now located will have
the right to claim the one that is already abandoned, in exchange for that portion of his
property that is now being used as a new course by the water.
- Question of practicality (e.g. distance).

Accession industrial - provisions are scattered > put them all together > identify the three important
situations

BPS = builder, planter, sower


1. Owner is the BPS using the material of another
2. BPS is the owner of the materials, not the land owner
3. Owner of the property is different from the BPS and different from the owner of the materials

Identify which is the principal and the accessory.


- Between the real property where the act of building, planting sowing occured.
- Which is the principal - land or thing built, planted, sown? Obviously, the land is the principal
because the land can exist by itself, while what has been built, planted, and sown can only be
done if there is a piece of land.

33
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- GR: Land is the principal, and since the accessory follows the principal, whoever owns the
land has a better right to acquire what has been built, planted, or sown. Not an absolute rule.
- XPN: Value of what has been built, planted or sown is higher than the value of the land, then
the BPS is given the right to acquire the land, but he cannot be compelled to do so. If he
refuses to acquire the land, then a contract of lease will now exist between the owner of the
land and the BPS.

If ever the owner of the land has decided to acquire what has been built, planted, or sown.
- Has the obligation to pay for its value, regardless of whether he is in good faith or bad faith.

Good faith vs. Bad faith


- Good faith is when there is a belief that he is the owner of the property, and since there is a
belief of ownership, the BPS will be very extravagant in spending.
- This is why the owner of the land, if he finally decides to acquire what has been built,
planted or sown, has the obligation to pay the full amount that was spent by the BPS
in the construction or planting.
- Not the same obligation in a contract of lease in the event that the lessor will acquire
what has built, planted, or sown by the lessee.
- Lessee cannot be considered as a BPS in good faith. Lessee knows that the
property does not belong to him.
- If lesssee, while during the contract of lease decided to construct a house or
introduced an improvement, at the end of the contract of lease, lessee is not
entitled to demand for the full recovery of the expenses he incurred. He can
never be considered a BPS in good faith.
- If lessor decides to buy what has been built, planted or sown by the lessee, he
is only obliged to pay 50% of the value of the improvement introduced by the
lessee.
- Whowever is in bad faith, whether owner of the property, BPS or owner of the material
- He is liable for damages.
- Owner of the material, you lose your right over the thing.

Insofar as expenses that were advanced by the BPS over the property.
- Qualify if good faith or bad faith.
- Good faith:
- Necessary and useful expenses can be recovered.
- To be assured that you can recover them, Civil Code gives the right of retention
- Legal pledge - you are not asking for it but it is the law that gives you that
privilege.
- You can remain in possession of a property, until and unless you have
recovered the necessary and useful expenses.
- Owner shall have no right to collect rental from you, because you are simply
enjoying and exercising the right that has been given by law.
- Accession industrial = BPS is given the right of retention to serve as an assurance that he will
be reimbursed of the necessary and useful expenses.

34
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Example - applicable in the three situations!


Owner of the land > wants to acquire what has been built, planted, or sown.
- Pay for the full value of it.
- In bad faith? Liable for damages.
- Obligation to reimburse the necessary and useful expenses advanced by the BPS in good
faith.
- If BPS is in bad faith, the only obligation is limited to reimbursement of the necessary
expenses.

- [Special contracts] In almost all contracts there is always a right of retention that will
be given to any of the parties.
- Commodatum - given to bailee
- Deposit - given to depositary
- Depends upon the purpose of the law. Purpose of the right of retention will vary
depening upon the contract involved.
- e.g. Pledge - personal property serves as a security for the payment of the
obligation

35
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

10/21

Accession involving movable or personal property

Example:
- Eyeglass - frame, lens.
- Is there an accession?
- Yes, because if the lenses are removed, then it will cause an injury to the whole thing.

Accession
- Anything that is attached, produced, or incorporated.
- Attachment or incorporation is something that is permanent.
- Detaching it would cause damage and injury.

What if the owner of the lens is different from the owner of the frame?
- Civil Code: Accessory [as a component of accession and not as an ornament] follows the
principal.
- Rule of greater importance.
- Lens because the purpose of the eyeglasses is to help see clearly, without the lens,
the purpose cannot be achieved.
- Example: Picture of Dr. Jose Rizal as an ophthalmologist operating on his mother, no
frame yet, so with his left hand he was holding the lens.

Example:
- Pair of shoes - sole, leather, lace.
- Is there an accession?
- Yes, sole and leather.
- Lace can be removed = accessory as an ornament.

What if the owner of the leather is different from the leather of the sole?
- Purpose? To protect the soles of the feet.
- Dean LR: Sole is more important than the leather.

Four Rules
- Do we have the discretion to choose what to apply?
- No, four rules have to be applied chronologically:

1. Rule of greater importance


● Take into consideration the purpose of the property.
2. Rule of greater value
3. Rule of greater volume
4. Rule of greater merit

Accessions involving personal property

36
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

1. Adjunction
- Shoes, eyeglass
- Two or more materials which can still be identified when they are combined together
- Identity of every personal property is retained even if they are attached to another
personal property.

2. Commixtion or confusion
- Identity of personal properties are no longer retained
- Civil law: two liquids or two solids.
- Confusion = two liquids; e.g. coffee
- Commixtion = two solids; e.g. wall concrete - cement + gravel + sand; fertilizer to the
soil

3. Specification
- Transformation of a thing through labor.
- One personal property and through human intervention, it is transformed to another
property.
- e.g. Blouse > cotton cloth > cotton tree - transformation

Good faith and Bad faith

Bad faith
- Aware that he is not the owner or that there is a defect in his ownership of the property still
exercises the rights of an owner.

Specification:
What happens if one is in good faith and one is in bad faith?
- Human labor is the principal.
- Worker in GF: Acquire the object and indemnify the owner of the material.
- Owner of the material in BF: Principal may claim the property without need to indemnify
the owner of the material. Loses the ownership over the material.
- Liable for damages [similar to accession industrial].
- Lose the material, and liable for damages.

Commixtion or confusion:
What happens if both are in good faith?
- Co-ownership will apply and will be created by operation of law.

Doorknob
- Accessory because there are cases wherein the doorknob does not function as a doorknob
and you will have to replace it, but there is no need to remove the whole door.

Dean LR:
- Know the definition and apply it to things around you because it is a matter of identifying
whether accession took place and what kind of accession took place.

37
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Accession is not a mode of acquiring ownership, accession is simply an extension of the


ownership. Something that is added to the property.
- Take a look at under what perspective of application - under 415 or under definition of
accession?
- Even if there is an attachment, it does not necessarily follow that accession is being
applied.
- Accession: Problem regarding the ownership because the owners of the properties that are
put together are different. In whose favor shall that new property belong?

38
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

11/4

Quieting of title
- Procedural, but not included under Special Proceedings, Rules of Court.
- Need to reconcile remedies in the Civil Code and the procedures under the Rules of
Court
- Declaratory relief

When can you avail this quieting of title?


- [Oblicon] Simulation of contracts: absolutely simulated, relatively simulated - parties really
bound themselves to the agreement, although the real intention does not appear in the
contract.
- For example, before the effectivity of the Train law, Filipinos prepare donation
contracts rather than deed of sale, thinking that the tax to be imposed will be minimal.
Real intention did not appear.
- If ever the parties want the real intention to appear on the contract, the Civil Code
provides for a solution: reformation of an instrument, which will not apply in an
absolutely simulated contract because parties have no intention be bound by a
contract.
- For example, Agrarian Reform Act, the intention of the owners of the hacienda wanted
that their properties will not be covered by the Agrarian Reform, so most of them
decided to subdivide it and make it appear that the lands were sold or donated.
- Risk behind the absolutely simulated contract is if the contracting parties die, from the
point of view of the compulsory heirs, direct descendants or surviving spouse, relying
on the document, they will think that it is part of the estate and take ownership over it.
A cloud will arise as to who is the real owner of the property.
- To address that the Civil Code provides for a solution = quieting of title.
- Usual question: whether the action has prescribed or not.
- Distinction on whether the petitioner is in possession or not in possession.
- In possession, prescription does not apply.
- Not in possession, prescriptive period applies.
- 10 years, good faith.
- 30 years, bad faith.
- Quieting of title = there should be a (reason?) involved that based on the instrument, it may
appear that it belongs to you, but in fact, it does not.

Co-ownership

[PFR - Family Code] Articles 147 and 148


[Property] When the hidden treasure is indivisible, co-ownership is created between the finder and the
owner of the property where the hidden treasure is found.
[Accession]
- In commixtion and confusion, there is also co-ownership.
- Formation of an island, there can also be co-ownership if it is formed in a non-navigable river
and it is in between two properties.

39
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Clear that co-ownership can be created not only if the parties really intended to have a co-ownership,
but because of the law itself providing for its creation.

Different in case of a partnership or corporation, there’s no such thing as a corporation by operation


of law, neither a partnership by operation of law. Although, you will encounter a partnership by estoppel
but that is different.
- In corporation and partnership, it will always be by agreement of the parties.
- Partnership is always profit-oriented. Corporation may be profit-oriented or non-profit oriented.
- Corporation Code provides for provisions on stock corporations and provisions for non-stock
corporations.

Co-ownership, obviously, is not profit-oriented. In co-ownership, the death of the co-owner will not
extinguish the co-ownership, what will extinguish the co-ownership is if the share of the co-owner is
already identified or if there is a demand for the partition of the property co-owned.

Partnership, the death of the partner will extinguish the partnership.


In corporation, the death of the stock-holder will not extinguish or terminate the corporation. Under the
new Corporation Code, corporation is now perpetual. It now depends upon the monitoring board of
the SEC to find out whether that corporation is not complying with the annual reportory requirements,
which can be used by the SEC as a basis to revoke its registration.

Partnership and corporations are considered as juridical persons, so if one enters into a juridical
relationship with them. In corporation, the only thing that is needed is a board resolution, which can
be a proof that he is given the authority to transact and enter into an agreement. In partnership, it is
the managing partner who has the right to enter into an agreement.

In co-ownership, all of the co-owners must have to affix their signature, unless the other co-owners
have given the full authority to one person to sign for and on behalf of them.

Supreme Court: In co-ownership, a co-owner will not be able to identify his share, as a matter in fact,
it is something that is spiritual. The share cannot be specifically identified in a co-ownership.

If there is any act which will show that you have finally identified your share in a co-ownership, then
by operation of law, co-ownership ceases to exist.

If co-ownership is still existing and you decided to sell the property co-owned, but you failed to get the
consent of all the co-owners, what would be the status of the sale?
- The share of the other co-owners whose consent was not obtained, sale is void ab initio.
- Your share, sale would be valid.
- Gives rise to a situation wherein the buyer or vendee will now be the new co-owner in the
property co-owned.

Right of redemption
- Any co-owner will have the right to buy or redeem the property that was sold.

40
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- To prevent that kind of a situation wherein a foreigner [somebody who is not an original party
of the co-ownership] will be a part of a co-ownership, the law allows any of the co-owners to
exercise the right of redemption.
- Cannot anymore be exercised the moment that co-ownership ceases to exist.

Can a co-owner file an action against the third person without getting the consent of the other co-
owners?
- Yes, if that action or case will be beneficial to all the co-owners.
- e.g. Action for ejectment - property co-owned is inhabited by informal settlers.

Can a co-owner file a case against another co-owner?


- Yes, if that co-owner is claiming that the property co-owned exclusively belongs to him.

What kind of consent is required?


- This will depend on the act of the co-owner.

EDA - unanimous consent IME - majority consent

- Encumbrance - Improvement
- Dispostion - Management
- Alteration - Enjoyment

Condominium Act
- Real property that is beside a road = prime lot. Value is higher.
- Condo unit, 1st floor = cheaper. Condo unit, last floor = more expensive.
- Govern the common areas, as they are co-owned.
- Mandatory under this law that you will be a member of the condominium association.
- Fees that are being collected are given by the condo owner for the maintenance of the
properties that are co-owned.
- Open space, elevator, stairs.
- Daming chika ni Ma’am about condo from Makati to London.
- In the absence of any provisions in the Condo Act, then you have to apply the provisions
governing co-ownership.
- Right to redemption also applicable - other condo owners can be given the preferential right to
buy it.

No such thing as a perpetual co-ownership


- There is a limit allowed by law to maintain the co-ownership.
- 20 years.
- After 20 years, you can demand for the partition.
- If there is an act which is an indication that the share is already identified, by operation of law,
co-ownership ceases to exist.

41
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Just make sure that when entering into a contract, all of the co-owners must affix their signature,
unless that co-owner is given a special power of attorney.

11/11

Possession

Owner of the car being used as Grab.


As an owner, based on the provisions of the Civil Code, can you still be considered in possession of
your vehicle?
- Yes, because as an owner there is a right to possess.
- Right to possess as an incident of ownership does not require actual or physical possession.

[Dean LR] From a layman's point of view, when we say possession, it means actual, physical
possession but it is clear, under our Civil Code, the possession need not be physical possession of
the thing.

What kind of possession do you have (over the car) in case you are already inside the University as
an owner?
- Possession in the concept of a holder
- Acknowledges that there is an owner who has superior right and this possessor
possesses such through a juridical title (e.g. usufruct).
- One in temporary possession

Aside from usufruct, do you have any idea of any contract wherein the other party is possessing the
property but in the concept of a holder?
- Lease (lessee).
- Commodatum (bailee).

Usufruct
- Look at Legal Forms, you will not find a sample of a usufruct contract.
- Important elements in the contract must be embodied for it to be sufficient.

Who are the parties in usufruct?


- Naked owner and usufructuary.
- Naked owner - who has the title
- Usufructuary - who has the possession in the concept of a holder

How come the naked owner is called as such?


- Rights are only restricted to the right to possess the property and right to fruits.
- He does not have the right to enjoy the property, as the same was granted to the usufructuary.

[Dean LR]
- In Spanish: “Uso-fructo,” the usufructuary is enjoying the rights to use and enjoyment of the
fruits.

42
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Definitely, before he can use the property there is one right, which is a prerequisite to the use
as well as to the enjoyment of the fruits, and that is the right to possess.
- So a usufructuary is enjoying three rights: possession, use, and enjoyment of the fruits.

6 Rights of the Owner:


1) Possess
2) Use
3) Enjoy the fruits
4) Abuse
5) Dispose
6) Recover

In usufruct:
- Right to abuse - owner cannot exercise it because he is not in possession
- Right to recover - if ever there is a contract signed by the parties, and the usufruct is for a
certain period of time, he cannot definitely demand for the recovery of the property under
usufruct.
- Right to dispose the property is left.

Naked owner - practically, only left with one right, and that is the right to dispose of the property. Almost
all of the rights have already been removed from him.

If the usufructuary leases the land, is he violating the contract of usufruct?


- No, the usufructuary is given the right to enjoy the fruits and that includes the right to sublease
the property that he is possessing.

What is the effect if he leases the property under usufruct?


- Given the right to enjoy the fruits.

[Dean LR]
- Remember that it is the nature of a usufruct that the usufructuary should enjoy the fruits of the
property.
- By leasing the property under usufruct, he is just simply trying to enjoy the fruits of the property
because the rentals are considered as civil fruits.
- Usufructuary cannot be considered as violating or breaching the contract of usufruct.

What about in lease contract? If ever a lessee subleases a property, can the lessee be considered as
violating the contract?
- Yes, the lessee is not given the right to enjoy the fruits. Thus, he cannot sublease the property.

But is that an absolute rule?


- No, if there is a stipulation in the contract of lease that a lessee can sublease said property,
then he may do so.

[Dean LR]

43
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- You need to qualify what is the purpose of the lease, whether the lease is residential or non-
residential purpose.
- It is because if it is residential, it is covered by the special law known as the “Rental Code Act.”
- Under the Rental Code Act, for a lessee to sublease, there is a need for written consent
from the lessor.
- If there is no written consent, and the lessee subleases it, then there is a breach of
contract. It can even be a ground for the termination of the contract of lease.
- If the lease is for non-residential purpose, like agricultural, commercial, industrial, it is now the
Civil Code of the Philippines that will apply.
- For as long as there is no express prohibition against subleasing then a lessee can
sublease.
- If the problem does not mention as to the purpose, then qualify.

If, let us say, there are two persons who have a dispute over the possession of a property. Does the
Civil Code provide for a solution to resolve this problem?
1) Preference must be given to the person in actual possession of the property.
2) If there are two or more possessors, the preference must be made to the person who has the
longest or oldest possession of the property.
3) Person who can show the title to the property is preferred.
If it still cannot be determined, parties may solve through proper court proceedings.

[Dean LR]
- As in the rule provided in the Civil Code in the determination of which is the principal and which
is the accessory, it is the same thing that must be done when resolving the issue about who
has the better right to possess the property when it comes to a dispute of two persons claiming
possession over the same property.
- Have to apply the rule according to how it is presented in the Code.
- Rules:
1) The one who is in actual possession.
2) If both are in actual possession, then the one who is deemed to have the longest period
of possession.
3) If both have been in possession for the same period of time, then the one who can
present the title.

Go to court, what kind of action are you going to file if you want to recover possession of a property?
- Accion interdictal
- Only available if the subject of the dispute is a real property
- [Dean LR] Take note, this is the remedy provided for the recovery of possession of an
immovable or real property
- Two kinds of accion interdictal: unlawful detainer and forcible entry. What’s the
distinction?
- Forcible entry
- Owner had prior possession and was deprived thereof by reason of
force, intimidation, threat.
- Unlawful detainer

44
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- The person occupying had lawful, actual possession of the property


but after the expiration, breach, or violation of the contract stipulated
between the parties, the person remained to be in possession of the
property.
- Accion publiciana
- Accion reivindicatoria

So, you’re allowed to choose any of the three?


- No, it depends on the situation.

What about the recovery of a movable property?


- Replevin

[Dean LR] You will see here the importance of knowing what type of property is involved because the
kind of property will tell you what is the proper action to be filed.

Doctrine of Self-help
- Equivalent to self-defense
- Person can lawfully use reasonable force against another who is trying to possess or usurp
his property.
- [Dean LR] You’re allowed to use reasonable force to repel an actual threat or usurpation.

Can you connect it with any of the two kinds of accion interdictal?
- In forcible entry, the person usurping the property has no right to be in that property, whereas
in unlawful detainer, he had a right by virtue of their contract.

But when will you file this forcible entry and when can you avail of the use of the doctrine of self-help?
To what extent can you make use of the doctrine of self-help?
- Actual, physical possession by a usurper then you cannot anymore use the doctrine of self-
help, but if there’s only an attempt to usurp the property, then you can use reasonable force to
repel the usurper.

[Dean LR]
It should be clear up to what extent can you use reasonable force to prevent the usurpation of your
property. There should only be an actual threat of usurpation for the law to allow you to use reasonable
force, but the moment there is no longer a threat and the person is in actual possession of your
property, then that means you cannot anymore be allowed by law to use force but the law gives you a
remedy in court and that is by filing an action for forcible entry.

Although, again, sometimes this is not being followed, even if the informal settler is in actual, physical
possession of the property, if you will look at the situation right now, there is force that is being used
for the immediate recovery of the property (e.g. community is being razed by fire).

In forcible entry, what are the things that you have to allege in your complaint?
[Dean LR] This needs to be alleged in the complaint, otherwise the court may dismiss the case.

45
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

1) Plaintiff was in actual physical possession.


2) That through the use of force, strategy, intimidation, etc., plaintiff was wrongfully or unlawfully
dispossessed of his property.

What about in unlawful detainer? What are the things that you need to allege?
1) Possessor was in possession by virtue of a contract or tolerance.
2) However, the right of possession was terminated by way of expiration of the contract.
3) There must a demand to vacate the premises.
4) Within 1 year after the last demand, the plaintiff may file an action for unlawful detainer.

[Dean LR] As a matter of fact, this action for unlawful detainer can even be connected with one special
form of payment. From the point of view of the lessee, he wants to continue but it is the lessor who
does not want to continue the contract.

What does lessee need to do (a special form of payment)?


- Go to the court and make consignation.
- Lessee will usually file a petition for consignation, on the other hand, lessor could easily file an
action for unlawful detainer. That is the counterpart of unlawful detainer.
- The lessee making it appear that he has the existing obligation, but the lessor will include in
the petition that there is no more obligation because the contract has already been terminated.

What is the prescriptive period for filing the action?


- Within 1 year from the date of demand.

What if, for example, you failed to file before the period has prescribed? Is the owner of the property
precluded from filing with no more remedy?
- No, owner still has the remedy to file an action. If within 1 year from the date of the demand to
vacate the premises, the owner of the property has the remedy to file an accion publiciana or
accion reivindicatoria.

Why do you say it is either publiciana or reivindicatoria? Complainant can choose between the two?
- In cases of the recovery of the possession, accion publiciana is used.
- In cases of issues on ownership, accion reinvindicatoria.

In case the 1-year period for filing unlawful detainer has already prescribed and the period for filing an
action for forcible entry has already expired? Is it possible to file accion reivindicatoria?
- No?

[Dean LR]
It’s because in reinvindicatoria the issue is about ownership, but in accion interdictal, it may be unlawful
detainer or forcible entry. You are simply trying to recover the possession.

If the period of 1 year has already lapsed, you can still avail of another remedy and that is accion
publiciana, wherein the issue is simply possession of the property.

46
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

1 year period has lapsed - can no longer file accion interdictal - file accion publiciana.

Distinguish accion publiciana with accion pauliana. What is pauliana?


- Accion pauliana is a remedy offered to or made available to the creditor.
- Accion publiciana is for recovery of possession and is not a remedy given to the creditor but
to the owner of the property.

What is the purpose of the creditor when he files an accion pauliana?


- It is a remedy offered to the creditor in order to rescind the contract.

[Dean LR]
In Obligations and Contracts, creditor has the following remedies:
a) Specific performance + damages
b) Rescission + damages
c) Accion subrogatoria
d) Accion pauliana
- Inquiring into the validity of the contract entered into by the creditor. His intention is to
withdraw it.
- If in case, the obligation of the debtor is already due and demandable, and the debtor
made it appear that the property he imposed is already sold, then the contract of sale
can be contested by the creditor, especially if the alleged sale placed when debtor has
an existing obligation.

What about this principle of Irrevindicability?


- The person in good faith who has acquired the real property through acquisitive prescription
shall have a right to that property after 10 years of possession in good faith.
- In case of movable properties, if they have acquired it in good faith, it shall be equivalent to a
just title.

Will that be applicable to all personal properties?


- No, there are two exceptions.
a. If that person acquired the property through illegal means.
- Anti-Fencing Act
- A property is acquired through illegal means and you bought the property
knowing that it is acquired through illegal means.
- Is knowledge necessary before you can be criminally liable for it? No, not
necessary.
- [Dean LR] No such thing as a buyer in good faith if the property is stolen.
b. If the property was lost by the lawful possessor.
- No finders keepers under the Civil Code.

Usufruct

What is usufruct? [asked in the 2019 Bar Exam]


- The right of a person to use the property of another with the obligation of preserving its form.

47
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- The usufructuary also has the right to use the fruits in the property.

[Dean LR]
In Spanish, “usofructo.”
It gives you an idea about how many rights are being transferred.

3 Rights:
- Right to use
- Right to fruits
- Right to possess

Who are the parties?


- The usufructuary and the naked owner.

Why naked owner?


- The rights of the owner are granted to the usufructuary and he only has the right to dispose of
the property.

[Dean LR]
Remember the 6 rights of an owner: right to possess, right to use, right to fruits, right to recover, right
to abuse, right to dispose.

From the word of “usufruct” itself, it possesses already the rights.


- The right to abuse, definitely cannot be exercised by the owner because he is not in actual
possession.
- Neither can he exercise the right to recover because he entered into a contract.
- That means he is only left with one right, and that is the right to dispose. It’s really correct to
call him “naked owner.”
- Translate “naked owner” to Filipino

Are there obligations that the usufructuary is expected to fulfill before he takes possession of the
property?
1. Make an inventory of all the properties.
2. To give security.

What is the reason behind the inventory and that of the security?
- To protect the interest of the naked owner.

What is the responsibility of the usufructuary insofar as the property is concerned?


- To maintain the form and substance of the said property.

[Dean LR]
It is necessary that he should, if ever the contract of usufruct was created, he should deliver it at the
same condition that was handed to him.

48
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

What if, for example, he does not have the capacity to post a bond? Is there any other option available
for him?
- If in case the usufructuary is unable to give a security, he may give caucion juratoria.
- It’s like an oath (palabra de honor).

[Dean LR]
So those are the obligations of the usufructuary:
1) To make an inventory
2) To post a bond

In Special Contracts or Remedial Law, you will learn that there are different kinds of bonds: cash bond,
surety bond. It is better to post a cash bond, because you can recover the full amount. If it is a surety
bond you can no longer recover because in a surety bond, you engage the services of a bonding
company, so whatever you pay is for the bonding company.

In Labor, you’re also required to post a bond, what they are requiring is the exact amount that you’re
going to pay.

It’s useless in getting a surety bond, but of course, in a surety bond, especially if that will be posted by
the other party, you have to be very attentive because a bonding company may only give it for one
year and definitely, the case is not going to be finished in one year. Better make sure that before it
expires, you have already asked the other party to renew the bond.

In a usufruct, is there a consideration given or is it gratuitous?


- There’s consideration given in the contract of usufruct, but the consideration is given only once.

What is the proof that a consideration is given in a usufruct? Is it provided in the Civil Code?
- No, the Civil Code is silent as regards the consideration of a contract of usufruct.

So, if it is silent, is it correct to presume that it is onerous?


- Yes, the presumption should be leaned towards being onerous because the naked owner is
deprived of some of his rights.
- Under the principle of unjust enrichment, such owner cannot give to another person his
property without any consideration.

[Dean LR]
Law on Property is taken from the Spanish Civil Code, the Spanish commentator Castan said that
usufruct can be onerous or it can be gratuitous.
- So, unlike the lease, which is always onerous. Unlike commodatum, which is always
gratuitous. Usufruct is in between commodatum and lease.
- Now, if ever, usufruct is onerous, it is correct that the consideration is only given once. While
in lease, it can be a daily, weekly, or monthly basis.

49
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Just be careful when you give a contract, the first thing that you have to find out whether the
other party will be allowed to enjoy the fruits of the property because that will, more or less,
give you a hint and you can suggest that it is usufruct.
- But if your relative will only allow the other party to use the property alone, by himself, by that
other party, the proper contract should be commodatum.
- If your relative now will be imposing a rental, it’s not anymore commodatum, but a lease
contract. You have to see the difference between commodatum, usufruct, and lease.

What kind of right is the right to usufruct? Real or personal right?


- Real right, because upon the death of the usufructuary, the usufruct is not automatically
cancelled.

[Dean LR]
Remember the distinction between the real right and personal right.

It’s a real right because it is attached to the property, so regardless of who will be the next owner or
the one who will the next possessor of the property, the right is existing.

In this case, unless there is a specific provision in the contract that the death of the usufructuary will
terminate that contract, then the right to usufruct can still be handed down to the compulsory heirs.

Remember the definition of succession, it is a mode of acquiring property and rights — the “right” there
refers to a real right.

50
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

12/5

Distinction between mode and title?


- Mode - Process of acquiring ownership
- Title - Justification or proof of ownership

[LTD] Title is a proof of ownership, same thing when we distinguish mode from title.

Original Mode vs. Derivative Mode - Is there a difference?


- Yes.
- Original mode - a direct act of acquiring ownership.
- Derivative mode - consequent only to other acts.

[Dean LR] Let’s go back to the different res (res nullius, res alicujus, res derelicta, res communes)
that we defined before. Among the different kinds of res, what can be an object of the original mode
of acquiring ownership?
- Res nullius - nobody owns it.

[LTD]
What is an indication in the title that you are the first owner?

It’s in the kind of the mode itself. What is the mode involved if nobody owns it?
- Original mode.

Thus, what will you see in the title of a real property?


- Original Certificate of Title - original owner; original mode
- Res nullius becomes res alicujus if property is now awarded to you as owner.
- If you sell the property, Transfer Certificate of Title - second owner; derivative mode (through
sale or donation)

How do you acquire an original certificate of title? What procedure is that?


- Open, continuous, notorious, possession and occupation.

Kinds of property based on ownership?


- Private Ownership
- Public Ownership

To be able to get an original certificate of title = Public and patrimonial property.


What should you do so you can acquire ownership over a patrimonial property?
- Positive declaration on the part of the government.
- Go to court and file.

Original Mode:
- Original Certificate of Title
- Property Registration Act - homestead patents, cadastral proceedings

51
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

Derivative Mode:
- Transfer Certificate of Title
- Secondary owner - sale, donation

Donation
Layman’s term? Gift!
Act of liberality

[Family Code] Can a husband and wife donate to one another?


- GR: No, prohibited to prevent undue influence and pressure.
- XPN: Small gifts and during family rejoicing.

- As early as FC, the word “donation” appears.


- Donation is not limited to what is given to charitable institutions.

What can be the object of donation?


- Can be real or personal property.
- Law does not make any classification, as long as it is in the commerce of man.

Is the form necessary for the validity of donation? Is it an absolute rule?


If the question does not mention the object = depends on whether immovable or movable property!
- Immovable
- It has to be in a public instrument, otherwise it is void ab initio.
- Cannot be made orally.
- Must be made in writing and notarized.
- Movable: depends upon the value of the property involved
- More than PHP 5,000
- Acceptance should be made in writing

- Whatever you receive during the lifetime of your parents, which is not part of the support, they
will be collated at the time something will happen to them [parents] in the computation of your
legitime.

Grounds for revocation or reduction of donation:


1) Donor, more or less, reserves something for his sustenance.
2) Donation will not affect the legitime of compulsory heirs of the donor.

When is donation effected?


1) Donation inter vivos
- Acceptance on the part of the donee reaches the knowledge of the donor.
2) Donation mortis causa

Double Donation? Follow rules in Double Sales.


- Determine which was perfected ahead of the other

52
PROPERTY
Dean Liza Lopez-Rosario
’19 - ‘20 Prelims + Finals AKPG

- Reckoning point for the perfection is the time when donor becomes aware of the acceptance
by the donee.

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