NUISANCE

Definition
A nuisance is any act, omission,
establishment, business, condition of property, or
anything else which
1. Injures or endangers the health or safety of
others; or
2. Annoys or offends the senses; or
3. Shocks, defies or disregards decency or
morality; or
4. Obstructs or interferes with the free
passage of any public highway or street, or any body
of water; or
5. Hinders or impairs the use of property. (Art.
694)
Classification
1.According to Persons Affected
a.
Public nuisance affects a community or
neighborhood or any considerable number of persons.
A nuisance may be considered public although the
extent of the annoyance, danger or damage upon
individuals may be unequal. (Art. 695)
b.
Private nuisance is one that is not included in
the definition of a public nuisance. (Art. 695)
Classification
2.
According to Nature
a.
Nuisance per se a nuisance under any and all
circumstances, because it constitutes a direct menace
to public health or safety and for that reason, may be
abated summarily under the undefined law of
necessity.
i.
resolution.

It may be abated by local ordinance or

ii.
Examples: rabid dog on the loose;
contaminated meat; filthy restaurants, houses
constructed on public streets and esteros.
b.
Nuisance per accidens -- its being a nuisance
depends upon certain conditions and circumstances.
i.
Since its existence is a question of
fact, it can only be abated by judicial proceedings.
ii.
Business or establishment which are
normally legitimate cannot be considered nuisance
per se; at most, they can be considered
nuisance per accidens, depending on the
circumstances.
iii.
Examples: dam or a fishpond
constructed in navigable rivers; terminals impeding
the flow
of traffic;
City of Manila vs. Laguio, JR.
GR No. 118127, April 12, 2005
FACTS:
Private respondent Malate Tourist
Development Corporation (MTDC) is a corporation
engaged in the business of operating hotels, motels,
hostels and lodging houses. It built and opened
Victoria Court in Malate which was licensed as a motel

although duly accredited with the Department of

Tourism as a hotel. On 28 June 1993, MTDC filed a
Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining
Order with the lower court impleading as defendants,
herein petitioners City of Manila, Hon. Alfredo S. Lim,
Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council). MTDC prayed that the
Ordinance, insofar as it includes motels and inns as
among its prohibited establishments, be declared
invalid and unconstitutional.
HELD:
It is well to point out that petitioners also
cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance
per se, or one which affects the immediate safety of
persons and property and may be summarily abated
under the undefined law of necessity. It can not be
said that motels are injurious to the rights of property,
health or comfort of the community. It is a legitimate
business. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. A
motel is not per se a nuisance warranting its summary
abatement without judicial intervention.
Liability for Nuisance
1.
Every successive owner or possessor of
property who fails or refuses to abate a nuisance in
that property started by a former owner or possessor
is liable therefor in the same manner as the one who
created it. (Art. 696)
2.
The abatement of a nuisance does not
preclude the right of any person injured to recover
damages for its past existence. (Art. 697)
3.
Lapse of time cannot legalize any nuisance,
whether public or private. (Art. 698)
Remedies against PUBLIC nuisance
a.A prosecution under the Penal Code or any local
ordinance; or
b.A civil action; or
cAbatement, without judicial proceedings.
- Extrajudicial abatement is available only for nuisance
per
se. Nuisance per accidens can only be abated
by judicial proceedings, because a court would still
have to determine if it is really a nuisance taking into
account the circumstances of the case.
Remedies against PUBLIC nuisance persons
authorized
a.
District health officer shall take care that one
or all of the remedies against a public nuisance are
availed of. (Art. 700) He shall determine whether or
not abatement, without judicial proceedings, is the
best remedy against a public nuisance. (Art. 702)
b.
City or municipal mayor If a civil action is
brought by reason of the maintenance of a public
nuisance, such action shall be commenced by the
mayor. (Art. 701)

c.
Private person may take the following
remedies if a public nuisance is specially injurious to
himself.
i. File an action; (Art. 703) or
ii.Abate the public nuisance by removing, or if
necessary
public nuisance by removing, or if
necessary, bydestroying
the thing which
constitutes the same. (Art. 704)
Remedies against PRIVATE nuisance
a.A civil action; or
b.Abatement, without judicial proceedings. (Art.
705)
Extrajudicial abatement is available only for nuisance
per se. Nuisance per accidens can only be abated by
judicial proceedings because a court would still have
to determine if it is really a nuisance
taking into
account the circumstances of the case.
Any person injured by a private nuisance may abate it
by removing, or if necessary, by destroying the thing
which constitutes the nuisance. (Art. 706) BUT
this is deemed subject to the LIMITATIONS imposed by
the law on nuisance as to the procedure or manner of
abatement.
Limitations
1.The person abating a nuisance must not commit a
breach of the peace or cause unnecessary injury. (Art.
704 and 706)
2.In extrajudicial abatement of a nuisance (whether
public or private) by a private person, it is necessary.
(Art. 704 and 706):
a. That demand be first made upon the owner or
possessor of the property to abate the nuisance;
b. That such demand has been rejected;
c. That the abatement be approved by the district
health officer and executed with the assistance of the
local police; and
d. That the value of the destruction does not exceed
three thousand pesos.
3.A private person or a public official extrajudicially
abating a nuisance shall be liable for damages:
a. If he causes unnecessary injury; or
b. If an alleged nuisance is later declared by the courts
to be not a real nuisance. (Art. 707)
Attractive Nuisance
Hidalgo Enterprises v. Balandan
GR No. L-3442, June 13, 1952
FACTS:
It appears that the petitioner Hidalgo
Enterprises, Inc. was the owner of an ice-plant factory
in the City of San Pablo, Laguna, in whose premises
were installed two tanks full of water, nine feet deep,
for cooling purposes of its engine. While the factory
compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence
or top covers. The edges of the tank were barely a foot
high from the surface of the ground. Through the wide
gate entrance, which was continually open, motor

vehicles hauling ice and persons buying said

commodity passed, and any one could easily enter the
said factory, as he pleased. There was no guard
assigned on the gate. At about noon of April 16, 1948,
plaintiffs' son, Mario Balandan, a boy barely 8 years
old, while playing with and in company of other boys
of his age, entered the factory premises through the
gate, to take a bath in one of said tanks; and while
thus bathing, Mario sank to the bottom of the tank,
only to be fished out later, already a cadaver, having
died of 'asphyxia secondary to drowning.
ISSUE:
Is Hidalgo Enterprises liable for the death of
Mario?
HELD:
No. One who maintains on his premises
dangerous instrumentalities or appliances of a
character likely to attract children in play, and who
fails to exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to a
child of tender years who is injured thereby, even if
the child is technically a trespasser in the premises.
The attractive nuisance doctrine generally is not
applicable to bodies of water, artificial as well as
natural, in the absence of some unusual condition or
artificial feature other than the mere water and its
location.
MODES OF ACQUIRING OWNERSHIP
Mode vs. Title
A mode is the legal means by which dominion
or ownership is created, transferred or destroyed.
Contrast this with title which is the legal basis by
which to affect dominion or ownership.

Put in another way, title is the juridical

justification for the acquisition or transfer of ownership
or real right, while mode is the actual process of
acquisition or transfer of ownership or real right.
For example, a contract of sale serves as title,
as it creates a legal basis or obligation to transfer the
property sold. However, it is the delivery of the thing
sold which serves as mode, as ownership transferred
only upon delivery. (Art. 1495)
How Is Ownership Acquired?
The Civil Code provides for the Different Modes
of Acquiring Ownership, particularly:
1. Occupation
2. Intellectual Creation
3. Succession
4. Donation
5. Prescription
6. Law
7. Tradition

Modes of Acquiring Ownership

1.
Occupation seizing property with no owner.
WHAT MAY NOT BE ACQUIRED BY OCCUPATION?
The ownership of a piece of land cannot be
acquired by occupation (Art. 714, NCC).

WHAT MAY BE ACQUIRED BY OCCUPATION?

Things appropriable by nature which are
without an owner, such as:
1.
Animals that are the object of hunting and
fishing;
2.
Hidden treasure; and
3.
Abandoned movables.
Abandonment requires (a) physical
relingquishment of the thing; and (b) a clear intention
not to reclaim or reassume ownership or enjoyment
thereof. Abandonment converts a thing into res nullius.

Modes of Acquiring Ownership

ANIMALS SUBJECT OF HUNTING AND FISHING

A. GOVERNING LAW : The right to hunt and to fish
is regulated by special laws. (Art. 715)
B. BEES
1. The owner of a swarm of bees shall have a right to
pursue them to anothers land, indemnifying the
possessor of the latter for the damage. (Art. 716)
2. If the owner has not pursued the swarm, or ceases
to do so within two consecutive days, the possessor of
the land occupy or retain the same. (Art. 716)
ANIMALS SUBJECT OF HUNTING AND FISHING
C. DOMESTICATED AND DOMESTIC ANIMALS
1. Domesticated animals are originally wild, but
have been captured and tamed. They belong to the
one who captured and tamed them.
-If they escape, the owner may claim them within 20
days to be counted from their occupation by another
person. (Art. 716)
-If this period has expired, they shall pertain to him
who has caught and kept them. (Art. 716)
2. Domestic animals are born and raised under the
care of people. They are treated like ordinary
movables, and are not subject to occupation unless
abandoned by their owners.
D.PIGEONS AND FISH : Pigeons and fish which from
their respective breeding places pass to another
pertaining to a different owner shall belong to the
latter. (Art. 717)
-Provided they have not been enticed by some article
or fraud. (Art. 717)
RULES ON LOST MOVABLES:
1. If the last possessor is known, the finder must
return the movable to him. (Art. 719)
2. If the last possessor is unknown, the finder shall
immediately deposit it with the mayor of the city or
municipality where the finding has taken place. (Art.
719)

a. The finding shall be publicly announced by the

mayor for two consecutive weeks in the way he deems
best. If the movable cannot be kept without
deterioration, or without expenses which considerably
diminish its value, it shall be sold at public auction
eight days after the publication. (Art. 719)
b. Within 6 months from the publication of the finding:
i. If the owner does not appear, the thing found or its
value shall be awarded to the finder. (Art. 719)
ii. If the owner appears in time, he shall recover the
thing found and reward the finder with one-tenth of
the same or of the price of the thing found. (Art. 720)
c. The finder and the owner shall be obliged, as the
case may be, to reimburse the expenses. (Art. 719)
2. Intellectual Creation works or compositions
created by employment of ones intelligence, skill in
the arts or that resulting from ones discovery or
invention.
3. Succession properties of a person are transmitted
through his death to another or others either by his
will or by operation of law.
The properties can only be transferred to the
name of the heirs after settlement of the estate of the
deceased person. Settlement may either by judicial
(i.e., through a petition in court) or extra-judicial
(without court intervention if decedent left no will,
debts and the heirs are in agreement).
4. Donation a person disposes gratuitously of his
property in favor of another who accepts it.
NOTE: In order for donation of land / buildings
to be VALID, the same must strictly comply with the
formalities required by the law. This means, among
others, that both the donation and the acceptance
must be made through a public document (i.e.,
notarized document).
5. Prescription this is acquisition of ownership of
property by virtue of open, continuous, exclusive and
notorious possession under a claim of title and for the
periods prescribed by law.
NOTES:
- Prescription may be invoked whether the
possessor is in good faith or even in bad faith. The
only difference is that it takes longer for the possessor
in bad faith to acquire ownership by prescription.
- For lands, ownership is acquired by
prescription after 10 years of good faith possession,
and after 30 years if possession is in bad faith. The
present possessor may tack (i.e., add) the possession
of this predecessors-in-interest to that of his
possession in order to satisfy the period required by
law.
- Lands registered under the torrens system
could not be acquired by prescription (Sec. 47,
Property Registration Decree, PD 1529). However,
laches may bar right of action of registered owner to
recover possession.
6. Law by express provision of law ownership is
vested. Example: Alluvium in favor of owners of lands

adjoining rivers. Here ownership is expressly given by

Article 457 of the Civil Code.
7. Tradition this means that it is the delivery which
transfers ownership over the property. This mode of
acquisition of ownership is merely a consequence of
certain contracts. Delivery may either be actual or
constructive (e.g., execution of formalities or symbolic
acts)
Are the following also modes of acquiring
ownership?
Registration of title over land in ones name
Sale of property to a person
Are the following also modes of acquiring
ownership?
a.

Registration of title over land in ones name

ANS: No. Registration does not vest title.

Certificates of title merely confirm or record title
already existing and vested. (Lopez vs. Lopez, G.R.
No. 161925, November 25, 2009)
b.

Sale of property to a person

ANS: No. A perfected sale does not transmit

ownership. It is the delivery or tradition which conveys
ownership. (See Art. 1477, NCC)

There is still a donation in the following

instances:

1. Giving on account of anothers

merits (Art. 726)

2. Giving on account of services

rendered to donor provided they do
not constitute a demandable debt (Art.
726)

3. When a burden less than the value

of the gift is imposed upon the donee
(Art. 726)

Acceptance
The donation is perfected from the moment
the donor knows of the acceptance by the
donee. (Art. 734)
The donee must accept the donation
personally or through an authorized person.
(Art. 745)
Acceptance must be made during the lifetime
of both the donor and donee. (Art. 746)
Donations According to Cause
Pure or Simple Donations
Remuneratory Donations
Conditional Donations
Donations with Onerous Cause
Pure or Simple Donations
1. Made out of plain gratuity or pure liberality.
It is thus donation in its truest form. (Republic
v. Silim, GR 140487, April 2, 2001)
2. No condition, charge or burden is imposed.
3. Governed by law of donations.

Example: A Christmas gift from a parent to his child.

Remuneratory Donations
1. Made to reward the donee for past services
rendered to the donor which do not constitute
a demandable debt. (Art. 726)
If the donation is for debts which are
demandable, it is actually a payment.
2. No condition, charge or burden is imposed.

3. Governed by law of donations.

Example: Donation in favor of a person who
saved the donor from drowning.

DONATIONS
Definition:
Donation is an act of liberality whereby a
person disposes gratuituously of a thing or right in
favor of another, who accepts it. (Art. 725)

A donation is actually a contract since

it requires the consent of both parties.

3 Essential Elements
Reduction of the patrimony of the donor

A donor cannot lawfully donate or

convey what is not his property (De
Guzman v. CA, 156 SCRA 701)
Increase in the patrimony of the donee
Intent to do an act of liberality or intent to
donate (animus donandi)
Liberality

Conditional Donations
1. Made in consideration of future services or
where the donor imposes certain conditions,
limitations or charges upon the donee.
2. Imposes condition, charge or burden, the
value of which is less than that of the gift.
The condition here is not the same as
that in the law of obligations which
determines the existence or
extinguishment of the rights of the
donee. Non-compliance is merely a
ground to revoke on the part of the
donor.
Illegal or impossible conditions are
merely not considered as imposed
unlike in the law on obligations where
said conditions make the obligation
void.

Example: Prohibition to
alienate for 100 years is an
unreasonable restriction on
ownership, and is therefore an
illegal condition. (See Roman
Catholic Archbishop of Manila
v. CA, 198 SCRA 300 (1991)

3. Governed by law of donations as to the

portion which exceeds the value of the burden
imposed.
Example: Donation of land on the condition
that it can only be used for religious purposes.

Donations with Onerous Cause

1. Made for valuable consideration
2. Imposes a reciprocal burden, obligation or
prestation on the donee, the value of which is
equal to or more than the donation given

3. Governed by the law of contracts (i.e., these

are not true donations)
Thus, the prescriptive period to rescind
an onerous contract is 10 years (based
on Art. 1141[1]), and not the 4-year
prescriptive period to revoke
donations. (De Luna v. Abrigo, GR
57455, January 18, 1990)
Thus, an onerous donation of real
property need not be in a public
instrument. (Manalo v. De Mesa, 29
Phil. 495 (1915)
Example: Donation of land on the condition
that the donee will build a school.

Donations According to Time of

Effectivity
Inter Vivos those which take effect during the
lifetime of the donor (art. 729)
Mortis Causa those which take effect upon
the death of the donor (Art. 728)
Donations Inter Vivos
Primarily, they are governed by the Civil Code
provisions on donations. Suppletorily, they are
governed by the general provisions on
obligations and contracts.
There is a donation inter vivos when the donor
intends that the donation shall take effect
during the lifetime of the donor - Even though the property shall not be
delivered until after the donors death

In such a case, the fruits of the

property from the time of
acceptance of the donation,
shall pertain to the donee
unless the donor provides
otherwise
Even though an event is fixed or a
suspensive condition is imposed which
may take place beyond the life of the
donor.

Unless a contrary intention

appears
Even though the donation is subject to
the resolutory condition of the donors
survival.

Donations Inter Vivos

The title or name given to a deed of donation
is not determinative of whether it is inter vivos
or mortis causa.
Distinguishing features or characteristics of a
donation inter vivos (not exclusive):
The transfer of ownership is
immediate and independent of the
donors death.
The donation is not revocable at will.

If the deed of donation

specifies the grounds for
revocation, the donation is not
revocable at will. The
specification in a deed of the
causes whereby the act may
be revoked by the donor
indicates that the donation is
inter vivos, rather than a
disposition mortis
causa.Villanueva v. Sps.
Branoco, infra.
There is an acceptance clause.

However, this is not a

conclusive indicator as it is
merely a matter of form.
The donation is made for an onerous
consideration.
Donations Mortis Causa
They partake the nature of testamentary
provisions, and shall be governed by the rules
on Succession.

Thus, to be valid, they have to be in

the form of a will;

They are also revocable at will by the

donor/testator.
The distinguishing characteristics of a
donation mortis causa are:

It conveys no title or ownership before

the death of the donor/testator who
retains the ownership (full or naked)
and control of the property while alive.

Before the testators death, he can

revoke the transfer at will.

Revocability may be provided

for indirectly by means of a
reserved power in the donor to
dispose of the properties
conveyed.

Irrevocability is a distinctive
feature of a donation inter
vivos.

The transfer becomes void if the

transferor should survive the
transferee.
Donations Mortis Causa
Examples:

A donation with the phrase to

become effective upon the death of
the donor or with a provision stating
that if the donee should die before the
donor, the donations shall be deemed
rescinded.

A donation which denies the transferee

the right to dispose of the property
without the consent of the donor.
In case of doubt, the conveyance should be
deemed donation inter vivos rather than
mortis causa, in order to avoid uncertainty as
to the ownership of the property subject of the
deed. (Puig v. Peaflorida, GR No. L-15939,
November 29, 1965)
SAMPLE DONATION INSTRUMENT:
Inter Vivos? OR Mortis Causa?

KNOW ALL MEN BY THESE PRESENTS:

That I, ALVEGIA RODRIGO, Filipino, of legal
age, widow of the late Juan Arcillas, a resident of
Barrio Bool, municipality of Culaba, subprovince of
Biliran, Leyte del Norte, Philippines, hereby depose
and say:
That as we lived together as husband and wife
with Juan Arcillas, we begot children, namely: LUCIO,
VICENTA, SEGUNDINA, and ADELAIDA, all surnamed
ARCILLAS, and by reason of poverty which I suffered
while our children were still young; and because my
husband Juan Arcillas aware as he was with our
destitution separated from us and left for Cebu; and
from then on never cared what happened to his family;
and because of that one EUFRACIA RODRIGUEZ, one of
my nieces who also suffered with our poverty,
obedient as she was to all the works in our house, and
because of the love and affection which I feel for
her, I have one parcel of land located at Sitio
Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878
declared in the name of Alvegia Rodrigo, I give
(devise) said land in favor of EUFRACIA RODRIGUEZ,
her heirs, successors, and assigns together with all the
improvements existing thereon, which parcel of land is
more or less described and bounded as follows:
1. Bounded North by Amambajag River; East,
Benito Picao; South, Teofilo Uyvico; and West, by Public
land; 2. It has an area of 3,492 square meters more or
less; 3. It is planted to coconuts now bearing fruits; 4.
Having an assessed value of P240.00; 5. It is now in
the possession of EUFRACIA RODRIGUEZ since May 21,
1962 in the concept of an owner, but the Deed of
Donation or that ownership be vested on her
upon my demise.
That I FURTHER DECLARE, and I reiterate that
the land above described, I already devise in favor of
EUFRACIA RODRIGUEZ since May 21, 1962, her heirs,
assigns, and that if the herein Donee predeceases
me, the same land will not be reverted to the
Donor, but will be inherited by the heirs of
EUFRACIA RODRIGUEZ;
That I EUFRACIA RODRIGUEZ, hereby accept
the land above described from Inay Alvegia Rodrigo
and I am much grateful to her and praying further for
a longer life; however, I will give one half (1/2) of
the produce of the land to Apoy Alve during her
lifetime.

Villanueva vs. Sps. Branoco

G.R. No. 172804, January 24, 2011

What Rodrigo reserved for herself was

only the beneficial title to the Property, evident
from Rodriguez's undertaking to "give one [half] . . . of
the produce of the land to Apoy Alve during her
lifetime." Thus, the Deed's stipulation that "the
ownership shall be vested on [Rodriguez] upon my
demise," taking into account the non-reversion clause,
could only refer to Rodrigo's beneficial title
It will not do, therefore, for petitioner to
cherry-pick stipulations from the Deed tending to
serve his cause (e.g., "the ownership shall be vested
on [Rodriguez] upon my demise" and "devise").
Dispositions bearing contradictory stipulations
are interpreted wholistically, to give effect to the
donor's intent. In no less than seven cases featuring
deeds of donations styled as "mortis causa"
dispositions, the Court, after going over the deeds,
eventually considered the transfers inter vivos,
consistent with the principle that "the designation of
the donation as mortis causa, or a provision in
the deed to the effect that the donation is 'to
take effect at the death of the donor' are not
controlling criteria [but] . . . are to be construed
together with the rest of the instrument, in
order to give effect to the real intent of the
transferor." Indeed, doubts on the nature of
dispositions are resolved to favor inter vivos
transfers "to avoid uncertainty as to the
ownership of the property subject of the deed."
Nor can petitioner capitalize on Rodrigo's
post-donation transfer of the Property to Vere
as proof of her retention of ownership. If such
were the barometer in interpreting deeds of
donation, not only will great legal uncertainty
be visited on gratuitous dispositions, this will
give license to rogue property owners to set at
naught perfected transfers of titles, which,
while founded on liberality, is a valid mode of
passing ownership. The interest of settled
property dispositions counsels against licensing
such practice.
Persons Who May Give or Receive Donations
The following aspects should be considered:
Capacity of Donor
Capacity of Donee
Prohibited Donations
Capacity of Donor
All persons who may contract and dispose of
their property may make a donation (Art. 735)
The donors capacity shall be determined as of
the time of the making of the donation (Art.
737)

Making means the time of perfection

of the donation, i.e., the moment the
donor knows of the donees
acceptance

Guardians and trustees cannot donate the

property entrusted to them.(Art. 736)**

A donor cannot lawfully donate or

convey what is not his property.

Capacity of Donee

All those who are not specially disqualified by

law may accept donations. (Art. 738)
Examples of those specially disqualified by
law are:

Donations between husband and wife

or between those living as husband
and wife. (Art. 87, FC)

Prohibited donations listed in Art. 739

Those who are incapacitated to

succeed by will are also incapacitated
to accept donations inter vivos.
Those Incapacitated to Succeed by Will

The priest who heard the confession of

the donor during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period.

The relatives of such priest or minister

within the 4th degree, the church,
community or organization to which
such priest or minister belongs.

A guardian with respect to donations

given by a ward in his favor before the
final accounts of the guardianship
have been approved, even if the donor
should die after the approval thereof.

Nevertheless, any provision

made by the ward in favor of
the guardian when the latter is
his ascendant, descendant,
brother, sister, or spouse, shall
be valid.

Any physician, surgeon, nurse, health

officer or druggist who took care of the
donor during his last illness.

Individuals, associations and

corporations not permitted by law to
inherit. **
Capacity of Donee
Minors and others who cannot enter into a
contract may become donees but acceptance
shall be done through their parents or legal
representatives.
Donations made to conceived and unborn
children may be accepted by those persons
who would legally represent them if they were
already born.
Donations made to incapacitated persons shall
be void though simulated under the guise of
another contract or through a person who is
interposed.

Those made between persons found guilty of

the same criminal offense, in consideration
thereof.

Rationale: to discourage criminality

Those made to a public officer or his

wife, descendants and ascendants, by
reason of his office.

Rationale: to prevent corruption or

bribery

NOTE: Any person who is forbidden from

receiving any donation herein cannot be
named beneficiary of a life insurance policy by
the person who cannot make a donation to
him. (Art. 2012)

Rules on Double Donations

This situation shall be governed by the same
rules on double sales, thus:
As to movable: ownership belongs to person
who may have first taken possession in good
faith.
As to immovable: ownership belongs to

Person acquiring it in good faith and

first recorded it in Registry of Property
**

Should there be no inscription, then to

the person first in possession in good
faith

In the absence of such inscription or

possession, then to the person who
presents the oldest title, in good faith.
**

Prohibited Donations
Those made between persons who were guilty
of adultery or concubinage at the time of the
donation.

The action for nullity may be brought

by spouse of donor/donee.

No conviction necessary; guilt may be

proved by preponderance of evidence
in same civil action.

Rationale: to discourage immorality

FORM OF DONATIONS
In General: Donations is a solemn contract,
that is, form is essential to its validity. Without
the required form, the donation is void.

This is an exception to the general rule

that contracts are perfected by mere
consent

While a void donation is not effective

to transfer title, it may explain the
adverse and exclusive character of
possession, which may ripen into
ownership by prescription (See
Rumarate v. Hernandez, GR 168222,
April 18, 2006)
Donation of a Movable: Formality requirement
depends on the value of the movable.

If Php 5,000 or less donation can be

made orally (but if orally, there must
be simultaneous delivery) or in writing;
law does not require that acceptance
be in writing, so it may be oral or even
implied

If more than Php 5,000 donation and

acceptance shall be in writing; this
may be in a public or private
instrument**

FORM OF DONATIONS
Donation of an Immovable: Formality is the
same regardless of the value .

Must be made in a public instrument.

The deed of donation must

specify therein the property
donated and the value of the
charges which the donee must
satisfy.

The requirement of Art. 749

(2nd par.) that the acceptance
must be in the same deed of
donation or in a separate
public instrument is deemed
satisfied in a case where the
donee signed the same
instrument of donation but the
acknowledgment portion of the
same only pertained to the
donors s execution thereof.
(See Quilala vs. Alcantara, et
al., GR 132681, Dec. 3, 2001)
Donation of an Immovable: Cont.
Acceptance may be made in the same
deed or in a separate public
instrument.

If the acceptance is made in a

separate instrument, the donor
shall be notified thereof in an
authentic form, and this step shall
be noted in both instruments.

The donation of realty made in

a public instrument is null and
void when the deed fails to
show the acceptance, or where
the formal notice of the
acceptance made in a
separate instrument is either
not given to the donor or else
not noted in the deed of
donation and in the separate
acceptance. (Legasto v.
Versoza, 54 Phil. 766)

However, the notation

requirement is intended
as an evidence that the
donor knew of the
acceptance. Where it is
admitted that the donor
knew of such
acceptance, the absence
of notation may be
excused and the
donation may still be
enforced. (Pajarillo v.
IAC, GR 72908,
August 11, 1989)

Persons who accept donations

in representation of others
who may not do so by
themselves, shall be obliged to
make the required notification
and notation.
Donation of an Immovable: Cont.
Acceptance shall not take effect unless
it is done during the lifetime of the
donor. (Art. 749)

If the donor dies before he

knows of the acceptance, the
donation does not take effect.

The donors heirs may

ratify the donation and
become bound
thereby, but if the
donor/decedent has
creditors who would be
prejudiced, said
creditors are not
bound by the
ratification. (Abragan
v. De Centenera, 46
Phil. 213)

SCOPE OF DONATIONS
Present Property
General Rule:

The donation may comprehend all the

present property of the donor, or part
thereof.
Limitations:

The donor must reserve, in full

ownership, or in usufruct, sufficient
means for the support of himself, and
of all relatives who, at the time of the
acceptance of the donation, are legally
entitled to be supported by the donor.

Without such reservation, the

donation shall be reduced on
petition of any person
affected.

SCOPE OF DONATIONS
Present Property
Limitations: (Cont.)

No person may give or receive, by way

of donation, more than he may give or
receive by will. (Art. 752)

This means that the donation

must not impair the legitime of
the donors compulsory heirs.

The donation shall be

inofficious in all that it may
exceed this limitation. It shall
be reduced insofar as it
exceeds the portion that may
be freely disposed of by will.

Inofficiousness may arise only

upon the death of the donor as
the value of the donation may
then be contrasted with the
net value of the donors
estate.

SCOPE OF DONATIONS
Future Property
Rules:

Donations cannot comprehend future

property. (Art. 751)

Future property is anything which the

donor cannot dispose of at the time of
the donation.

The law requires the donor to have

ownership of the thing or the right he
donates at the time of its perfection
since a donation constitutes a mode,
and not just a title, in the acquisition
and transmission of ownership (unlike
an ordinary contract which is merely
title, and requires delivery). (See

Hemedes v. CA, GR 107132, Oct. 8,

1999, J. Vitug, concurring)

EFFECT OF DONATIONS
JOINT DONEES:
1. Equal Shares. When a donation is made to several
persons jointly, it is understood to be in equal shares.
(Art. 753)
2. Accretion. There shall be no right of accretion
among joint donees. (Art. 753)
Exceptions:
i.If he donor has otherwise provided. (Art. 753)
ii.If the donation is made to the husband and
wife jointly,
between whom there shall be a right
of accretion. Unless
the contrary has been
provided by the donor. (Art. 753)

The donation is always presumed to be in fraud of

creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to the
donation. (Art. 759)
DONEES LIABILITY FOR DONORS DEBTS:
If there is stipulation. When the donation imposes
upon the donee the obligation to pay the debts of the
donor, the donor is liable to pay but:
a.Such liability is only for the debts which appear to
have been previously contracted. Unless a declaration
to the contrary appears. (Art. 758)
b.In no case shall the donee be responsible for the
debts exceeding the value of the property donated.
Unless a contrary intention clearly appears. (Art 758)

SUBROGATION & WARRANTIES:

1. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the
donor. (Art. 754)
2. The donor is not obliged to warrant the things
donated. (Art. 754)
Exceptions: The donor is liable in the following cases:
i.When the donation is onerous, in which case the
donor shall be liable for eviction to the
concurrence of the burden;
(Art. 754) or
ii.In case of bad faith on the part of the donor. (Art.
754)
RESERVATION:
1.The donor may reserve:
a.The right to dispose of some of the things
donated, or
b.The right to dispose of some amount which
shall be a
charge on the things donated. (Art.
755)
2. But if the donor should die without having made use
of this right, the property or amount reserved shall
belong to the donee. (Art. 755)
SEPARATE DONATION & REVERSION:
SEPARATE DONATION OF OWNERSHIP AND
USUFRUCT. Ownership of property may also be
donated to one person and the usufruct to another or
others. Provided, that all donees are living at the time
of the donation. (Art. 756)
REVERSION . The donor may validly
establish reversion in his favor for any case and
circumstances. If in favor of other persons, they must
all be living at the time of the donation. Otherwise, the
reversion in favor of third person shall be void, but
shall not nullify the donation. (Art. 757)
DONEES LIABILITY FOR DONORS DEBTS:
If there is no stipulation. If there is no stipulation
regarding the payment of debts, the donee shall not
be responsible therefor. (Art. 759)
Except only when the donation has been made in
fraud of creditors. (Art. 759)

REVOCATION & REDUCTION

OF DONATIONS
BRA (Birth, Reappearance or Adoption)
Failure to Comply with Conditions
Ingratitude
Inofficiousness

Birth, Reappearance & Adoption

1. Ground. Every donation inter vivos, made
by a person having no children or descendants
(whether legitimate or legitimated by subsequent
marriage, or illegitimate) may be revoked or reduced
by the happening of any of these events. (Art. 760)
a. BIRTH: If the donor, after the donation,
should have legitimate or legitimated or illegitimate
children, even though they be posthumous;
b. REAPPEARANCE: If the child of the donor,
whom the latter believed to be dead when he made
the donation, should turn out to be living;
c. ADOPTION: If the donor subsequently adopts
a minor child.
i. The presumption behind this rule is that the
donor would not have donated his property if he had,
or knew he had, a child who would naturally be
entitled to his affection and property.
ii. The birth or reappearance of a grandchild is
not a ground for revocation or reduction.
iii. The revocation or reduction takes place by
operation of law (by the happening of the events
specified in Art. 760), but court action may be
necessary if the donee refuses to honor the revocation
or reduction or refuses to return the property.
2. Extent. The donation shall be revoked or reduced
insofar as it exceeds the free portion, i.e., the portion
that may be freely disposed of by will.
In computing the free portion, the whole estate of the
donor at the time of the birth, appearance or adoption
of a child shall be taken into account. (Art. 761)
Compare this with revocation or reduction of
inofficious donations, where the net estate of the
donor at the time of his death is taken into account.

(Art. 771) Thus a donation which cannot be reduced

under Art. 760 may still be reduced for being
inofficious under Art. 771(when the donor dies).
3.
Return
a.Upon revocation or reduction, the property affected
shall be returned. (Art. 762)
i. If the donee has sold the property, the value
of the property shall be returned. (Art. 762)
ii. If the property is mortgaged, the donor may
redeem the mortgage, by paying the amount
guaranteed, with a right to recover the same from the
donee. (Art. 762)
iii.When the property cannot be returned, it
shall be estimated at what it was worth at the time of
the donation. (Art. 762)
b.As to fruits, the donee shall not return them except
from the filing of the complaint. (Art. 768)
4.

2. Return.
a. The property donated shall be returned to
the donor. (Art. 764)
b. The alienations made by the donee and the
mortgages imposed
thereon by him are void. (Art.
764)
However, this is subject to the limitations established,
with regard to third persons, by the Mortgage Law and
the Land Registration laws. (Art. 764)
c. The donee shall return not only the property
but also the fruits
thereon which he may have
received after having failed to fulfill the condition.
(Art. 768)
3.Extent. The donation is revoked (not
merely reduced or partially revoked). Art. 764
provides that the property donated shall be returned
to the donor.

Prescription and Transmissibility

a.The action for revocation or reduction shall prescribe

after 4 years counted as follows: (Art. 763)
i.From the birth of the first child, or
ii.From the childs legitimation, recognition or
adoption, or
iii.From the judicial declaration of filiation, or
iv.From the time information was received
regarding
the existence of the child believed to
have been dead.
b. The action cannot be renounced. (Art. 763)
c. The action is transmitted, upon the death of the
donor, to his legitimate and illegitimate children and
descendants. (Art.
763)

Failure to Comply with Conditions

1. Ground. The donation shall be revoked, at the

instance of the donor, when the donee fails to comply
with any of the conditions which the former imposed
upon the latter. (Art. 764)
a. Conditions means obligations or charges imposed
by the donor on the donee, and not conditions as
uncertain events the happening of which gives rise or
extinguishes juridical relation. This may be inferred
from the language of the provision which refers to
conditions as something which the donee must
comply with.
b. When the donation imposes conditions but does not
fix the period within which to comply with them, the
court must fix the period under Art. 1197.
In one case, the Supreme Court held that compliance
with a condition to build a school had already been
delayed for more than 50 years, it was no longer
necessary to fix a period. The correctness of this
ruling is doubtful. First, there is no such exception in
Art. 1197) requiring the fixing of a period. Second, it is
necessary to fix a period if only to fix the time from
which the 4-year prescriptive period for revocation
should be reckoned.

4.Prescription and Transmissibility

a.The action for revocation shall prescribe
after 4 years from the non-compliance with the
condition. (Art. 764)
b.The action may be transmitted to the heirs
of the donor, and may be exercised against the
donees heirs. (Art. 764)

Ingratitude

1.Grounds. The donation may be revoked at the

instance of the donor, by reason of ingratitude in the
following cases: (Art. 765)
a.If the donee should commit some offense
against the person, the honor or the property of the
donor, or of his wife or children under his parental
authority; Conviction of the donee is not necessary.
b.If the donee imputes to the donor any
criminal offense, or any act involving moral turpitude,
even though he should prove it. Unless the crime of
the act has been committed against the donee
himself, his wife or children under his authority;
c.If he unduly refuses him support when the
donee is legally or morally bound to give support to
the donor.
2. Extent. The donation is revoked (not merely
reduced or partially revoked). (Art. 765)
3. Return.
a. If the property is alienated or mortgaged before the
notation of the complaint for revocation in the Registry
of Property, such alienation and mortgages shall
subsist. (Art. 766)
i. The donor shall have a right to demand from
the donee the value of property alienated which he
cannot recover from third persons, or the sum for
which the same has been mortgaged. (Art. 767)

ii.The value of said property shall be fixed as of the

time of the donation. (Art. 767)
b. If the alienation or mortgage is after the notation, it
shall be void. (Art. 766)
c. As to fruits, the donee shall not return them except
from the filing of the complaint. (Art. 768)
4.

Prescription and Transmissibility

a.This action prescribes within 1 year, to be

counted from the time the donor had knowledge of the
fact and it was possible for him to bring the action.
(Art. 769)
b.The action cannot be renounced in advance.
(Art. 769)
c. This action shall not be transmitted to the
heirs of the donor, if the latter did not institute the
same, although he could have done so; even if the
donor should die before the expiration of 1 year. (Art.
770)
d.Neither can this action be brought against
the heir of the donee unless upon the donees death
the complaint has been filed. (Art. 770)

Inofficiousness

1. Ground. Donations may be reduced for being

inofficious (Art. 771), i.e., in excess of what the donor
may give by will which impairs the legitime of
compulsory heirs. (Art. 752)
a.In determining inofficiousness, the estimated
net value of the donors property at the time of his
death shall be taken into account. (Art. 771)
b. Inofficiousness shall not prevent the
donation from taking effect during the life of the
donor, nor shall it bar the donee from appropriating
the fruits. (Art. 771)
2. Extent. The donation shall be reduced with regard
to the excess. (Art. 771)
As to fruits, the donee shall not return them except
from the filing of the complaint for reduction. (Art.
768)
3. Right of Action

a. Who may ask for reduction Only those who

at the time of the donors death have a right to the
legitime and their heirs and successors-in-interest.
The said persons cannot renounce their right during
the lifetime of the donor, either by express declaration
or by consenting to the donation. (Art. 772)
b. The donees, devisees and legatees, who are
not entitled to the legitime and the creditors of the
deceased can neither ask for the reduction nor avail
themselves thereof. (Art. 772)
4. Prescription. The action prescribes in 10 years
from the death of the donor-decedent. (Art. 1144)
5. Procedure.
A. Donations shall be respected as long as the
legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
(Art. 911)
B. If there are two or more donations, and the
free or disposable portion is not sufficient to cover all
of them, those of the more recent date shall be
suppressed or reduced with regard to the excess. (Art.
773)
C. The reduction of the devises or legacies (or
donation, if needed) shall be pro rata, without any
distinctions whatever. However, if the testator has
directed that a certain devise or legacy be paid in
preference to others, it shall not suffer any reduction
until the latter have been applied in full to the
payment of the legitime. (Art. 911)
D. If the devise/donation subject to reduction
should consist of real property, which cannot be
conveniently divided:
(1)If the reduction does not absorb one-half of its
value, the real property shall go to the devisee/donee;
and
(2)If the reduction absorbs at least one-half of its
value, the real property shall go to the compulsory
heirs. (Art. 912)
In either (1) or (2), the devisee/donee or the
compulsory heir (as the case may be) shall reimburse
the other in cash. (Art. 912)
(3)The devisee/donee who is entitled to a legitime may
retain the entire property, provided its value does not
exceed that of the disposable portion and of the share
pertaining to him as legitime. (Art. 912)