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1988 BAR EXAMINATION Question No. 1: (a) Distinguish co-ownership from partnership.

(b) Is the lease of the entire community property in co-ownership an act of administration or an act of ownership or alteration? Explain, in relation to the need of consent of the co-owners. (c) Since 1935, Janice possessed alone a parcel of land which she co-owned with Lenny. In 1970, with the knowledge of Leny, Janice obtained a torrens title over the land in her own name alone. On august 1, 1988, Lenny brought an action against Janice for reconveyance of her share. Janice set up the defense of laches. Will the defense prosper? Reasons Question No. 2: (a) How are easements acquired? (b) In acquiring easement by prescription, how shall the period of possession be computed? (c) About fifteen years ago, Adelaida constructed a house on her lot at Quezon City adjoining a lot owned by Bernie. She provided it with several windows overlooking Bernies lot half a meter away from the boundary line. A month ago, Bernie brought an action against Adelaida for the closure of the windows alleging that they violate the law on distances (1) Has Adelaida acquired an easement of light and view by prescription? (2) Will the action of Bernie prosper? (3) If the action will not prosper, will that not be tantamount to saying that Adelaida has already acquired an easement of light and view? Question No. 3: (a) What is mean by law as a mode of acquiring ownership? What are the different instances under the Civil Code whereby thre is an acquisition of ownership by operation of law? State at least three. (b) A donated to X a parcel of land in 1975. The donation was made in a public instrument, while the acceptance made by X was embodied in the same public instrument. The Deed of Donation was entitled Donation Inter Vivos. There is however a provision in the ded to the effect that, although the land donated shall be delivered immediately to X upon the perfection of the donation with right to enjoy all of the fruits thereof, title shall pass to the done only upon the donors death. Upon the death of A, his widow and only heir, B, brought an action for the recovery of the property on the ground that the donation is a donation mortis causa and not a donation inter vivos. Will the action prosper? Give your reasons.

Question No. 4: (a) 1) Is title to registered land subject to prescription? Explain your answer. 2) How about the right of the registered owner to recover possession, is it equally imprescriptible? Why? 3 )What effect has the equitable principle of laches on the imprescriptibility of Torrens Title? Explain. (b) In passing upon the registrability of a document sought to be registered, what formal requisites is the Register of Deeds charged to determine, under his responsibility, whether or not they have been complied with?

1988 BAR EXAMINATION ANSWER KEY Answer No. 1: Co-ownership is distinguished from an ordinary partnership in the following ways: (1) As to creation: Whereas co-ownership may be created by law, contract, succession, fortuitous event or occupancy, partneship is always created by contract. (2)As to purpose: Whereas the purpose of co-ownershio is the common enjoyment of the thing or right owned in common, the purpose of a partnership is to obtain profits. (3) As to personality: Whereas a co-ownership has no juridical personality which is separate and distinct from that of the owners, a partnership has. (4) As to duration: Whereas an agreement not to divide the community property for more than 10 years is not allowed by law, such an agreement would be perfectly valid in the case of partnerships. (5) As to power of members: Whereas a co-ownership, unless there is an agreement to that effect, a partner has the power to represent the partnership, unless there is stipulation to the contrary. (6) As to effect of disposition of shares: If a co-owner transfers his share to a third person, the latter becomes automatically a co-owner, but if a partner transfers his share to a third person, the latter does not become a partner, unless agreed upon by all of the partners. (7) As to division of profits: Whereas in co-ownership the division of the benefits and charges is fixed by law, in a partnership the division of profits and losses may be subject to the agreement of the partners. (8) As to effect of death: Whereas the death if a co-owner has the effect upon the existence of a co-ownership, the death of a partner shall result in the dissolution of the partnership. (b) Lease of personal property is a mere act if administration, and, therefore, requires the resolution of the majority of the co-owners. However, lease of real property may be an act of administration or an act of alteration depending upon the circumstances of each particular case. (1) If the lease is recorded in the Registry of Property, whatever may be the duration thereof, it is an act of ownership, and therefor, requires the unanimous conset of all the co-owners, since under the unanimous consent if all the co-owners, since under the law, a special power of attorney is required. (3) If the lease, however, i not recorded in the Registry of Property and the duration thereof is only one year or less, it is an act of administration and therefore, merely requires the resolution of the majority of the coowners. (c) It is submitted that the defense of laches will prosper. As held by the Supreme Court in several notable decisions, in order that the doctrine of laches or stale demands can be applied, the following elements must concur: (1) Conduct on the part of the defendant, or of

one under whom he claims, giving rise to the situation of which complaint seeks a remedy; (2) delay in asserting the complainants rights, the complainant having had knowledge or notice, of the defendants conduct and having been afforded an opportunity to institute a suit (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases the suit; (4) injury or prejudice to the defendant in the event relief if accorded to the complainant, or the suit is not held to be barred ( Miguel vs. Catalino, 26 SCRA 234). All of these elements are present in the instant case. As a matter of fact, the doctrine was applied to a case wherein a co-heir and another were able, through fraud. To register a tract of land in their names. According to the Supreme Court, the action for reconveyance brought by the other co-heirs more than twenty year later is now barred not by extinctive prescription but also by laches. (Fabian vs. Fabian, 22 SCRA 231) Answer No. 2: (a) Continuous and apparent easements are acquired either by virtue of title or by prescription of ten year ( At. 620 , CC), while continuous non apparent easements and discontinuous easements whether apparent or non apparent, can only be acquired by virtue of a title (Art. 622, CC) (b) In order that an easement may be acquired by prescription, the time of possession shall be computed thus: In positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. ( Art. 621, CC). (c) (1) Adelaida has not acquired an easement of light and view by prescription after ten years. There are two reasons for this. In the first place, there was no formal prohibition as required by law. This should have been done by means of an instrument acknowledged before a notary public wherein she should have prohibited Bernie from obstructing his light and view. She did not. In the second place, she did not observe the legal requirement that there should eb a distance of at least two meters between the windows and Bernies lot, since the view is direct. According to the Civil Code, nonobservance of this distance foes not give rise to prescription. (2) The action will not prosper because more than ten years has already elapsed from the time of the opening of the windows. Bernies rights of action has already prescribed. (3) This is not tantamount to saying that Adelaida has already acquired an easement of light and view. Under the Civil Code, nobody can prevent Bernie from obstructing Adelaidas light and view by constructing a building on his lot or by raising a wall thereon contiguous to the windows of Adelaida.

Answer No. 3: (A) When the Civil code speaks of law as a distinct mode of acquiring ownership, it refers to those instances where the law, independently of the other modes of acquiring ownership, automatically and directly vests the ownership of the thing in a certain individual once the prescribed requisites or conditions are present of complied with. Examples of this are: (1) Land which belongs exclusively to either of the spouses where a building is constructed with conjugal funds. Here, the ownership of the land is vested automatically in the conjugal partnership one the condition that its value has been reimbursed to the owner has been complied with ( Art. 158, par. 2, CC) (2) Hidden treasure which a stranger discovers by chance on anothers property. Here, one half of the treasure belongs by right of occupation to the stranger, while the other half belongs by operation of law to the proprietor. ( Art. 438, par. 2, CC) (3) Abandoned beds, when a river or stream suddenly changes its course to traverse private lands. The former owners of the new bed shall be the owners of the abandoned bed in proportion to the area lost by each. (Art. 58, P.D. No. 1067) (4) Fruits neutrally falling from a tree upon adjacent land. Here, the ownership of the fruits is vested automatically in the owner of the adjacent land.( Art. 681, CC). (B) Yes, the action will prosper. In Bonsato vs. Court of Appeals, and Howard vs. Court of Appeals, the Supreme Court declared that in order that a donation will be considered a disposition post mortem, it should reveal any or all of the following characteristics: (1) Convey no title or ownership to the transferee before the death of the transferor; or, what amount to the same thing, that the transferor should retain the ownership, full or naked, and control the property while alive; (2) That before his death the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the property conveyed; (3) That the transfer should be void if the transferor should survive the transferee. It is clear from the facts stated in the problem that the donation reveals the first characteristics. Hence, it is a disposition, post mortem. Therefore, in order that the donation can take effect it is essential that it must be made in a will executed in accordance with all of the formalities prescribed by law ( Art. 728, CC). Since this requisite has not been complied with, the donation in the instant case is void or inexistent.

Committees Recommendation Re: No. 4 (a) and (b) (a) It is recommended that the following be likewise considered as instances whereby there is acquisition of ownership by operation of law: (1) The acquisition of property in co-ownership under a marriage governed by the absolute community regime. (2) Estoppel undert article 1434 of the Civil Code which provides that: When a person who is not the owner of a thing sells or alienates and delivers it, and later the seller or grantor acquires title thereto, such title passes by operation of law to the buyer or grantee; and (3) Registration of land under Act 496 where the applicant is not the real owner. (b) It is recommended that the mention of the first characteristic of the three mentioned above, should merit a full credit for this question.

Answer No. 4: (a) 1) No because under Section 47, P.D. 1529, no title to registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession. A similar provision is found in the Civil Code. The reason is that once a piece of land is registered under the Torrens System, it operates as a notice to the whole world. All persons are bound by it. No one can please ignorance of the registration. (2) The right to recover the land from another person holding it is equally imprescriptible, the reason being that possession is a mere consequence of ownership. (3) While Torrens Title is imprescriptible, under certain exceptional circumstances, it may yield to the equitable principle of laches. In other words, certain circumstances such as inaction or utter neglect on the part of the owner and the intervention of rights by third paties may, for reasons of equity, convert the claim of imprescriptibility into a stale demand. (Meijia vs. Gamponia, 100 Phil. 277; Miguel vs. Catalino, G.R. L-23072, Nov. 29, 1968; Heirs of Batiog Lacamen vs. Heirs of Laruan, G.R. L-27058, July 31, 1985).

(b) To be registrable, a voluntary document affecting registered land must be sufficient in law. (Section 51, P.D. 1529) Sufficiency refers to both substance and form. As to form, it is the RODs responsibility to check such items as the full name and signature of vendor or grantor, the marital consent of the wife if the land sold is conjugal, the full name, nationality, the civil status, the name of spouse, if married, the resident and postal address of the grantee. If the grantee is a corporation, the deed must be accompanied with the Articled of Incorporation, a board resolution authorizing the corporation to buy and another resolution of the board naming the corporate officer authorized to execute and sign the contract. This is ot to

mention the proper observance of the requirements in the acknowledgement portion of the deed.