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Summary

on

PROPERTY, OWNERSHIP, AND ITS


MODIFICATION

Title I. CLASSIFICATION OF PROPERTY

By:

Julius Christopher T. Buela


PRELIMINARY PROVISIONS

ARTICLE 414. All things which are or may be the object of appropriation are considered Susceptibility to Appropriation
either:
Pursuant to Article 414, a thing must be susceptible of appropriation before it can be
(1) Immovable or real property; or considered as property, things which cannot be subjected to human control by reason of
(2) Movable or personal property. (333) sheer physical impossibility are not considered as property.

Concept of things and property Examples are the following:

The word “property” is derived from the Latin word proprius, (1) Things which, because of their distance, their depth or their
meaning belonging to one or one’s own. Therefore, in the traditional sense, property immensity are not capable of human control such as the sun, the stars
extended only to those things which are owned by man. and the ocean, are not properties;
The concept of “property” (bienes) is intimately related with the (2) Ordinarily, forces of nature such as lightning and rain are not properties because
concept of “things” (cosa). Things are those objects which are external to man and under the of impossibility of appropriation in their diffused state. However, when they are brought
under human control through the help of science, i.e., electricity, they may now be regarded
concept of the Civil Coderefers to both material objects and rights.
as property.
The concept of property under Code refers to those things which are susceptible of
appropriation. Thus, it also refers to those things which are not found in the possession of The criteria of susceptibility to appropriation must be distinguished from those things
man, as the rule is as long as a thing is susceptible of appropriation then it can become a which are “outside the commerce of man” which cannot be the object of contracts, because
property. certain things such as properties of public dominion, although outside the commerce of man,
may still be considered as property under the code.

Additional Requisites

Aside from the criterion of susceptibility to appropriation, most authors provide for
two additional requisites before considering a thing as property:

(1) Utility – This means that a thing can serve as a means to satisfy human needs,
wherein almost everything is capable of doing so.
(2) Substantivity or individuality – that the thing must have an autonomous and separate
existence and not simply a part of a whole. However, if a thing is separated from a
whole and it is still able to satisfy a human need or want, it can then be considered as
a property such as when the stone in a diamond ring is removed or separated from the
ring, the diamond then is considered as a separate property from the ring.

Classification of Property
(3) For purposes of determining the formalities of a donation: If the value of the
Although there are many classifications of property, Book II of personal property donated exceeds P5,000.00, the donation and the acceptance are
the New Civil Code enumerates the more important classifi cations, as required to be in writing; otherwise, the donation is void. In order that the donation of
follows: an immovable property may be valid, it must be made in a public document, as well
as the acceptance thereof.
(1) Immovable or movable (Arts. 415 to 417);
(2) Movables, in turn, are classified into consumable or nonconsumable (4) In extrajudicial deposit: Only movable things may be the object of extrajudicial
(Art. 418); deposit.
(3) From the viewpoint of ownership, property is classified either as property of public
dominion or of private ownership (Arts. 419 to 425). (5) In crimes of theft, robbery and usurpation: Only personal property can be the
object of the crimes of theft and robbery.18 However, the crime of usurpation defined
It is obvious from Article 414 that the term “immovable” is used synonymously with in Article 312 of the Revised Penal Code can be committed only with respect to a real
the term “real” property and the term “movable” is used synonymously with the term property.
“personal” property.
(6) For purposes of determining the venue in remedial law: In the law of procedure, it
Importance of Classification is important to know the classification of property for purposes of venue. If the action
affects title to or possession of real property, or interest therein, the action (referred to
The classification of property in Article 414 into immovable (real) and movable as “real action”) must be filed in the proper court wherein the real property involved,
(personal) is based on the nature of the thing itself and is the most important in point of law or a portion thereof, is situated. All other actions (referred to as “personal action”)
because of the various legal consequences f owing therefrom, as follows: may be commenced and tried where the plaintiff or the defendant resides, at the
election of the plaintiff.
(1) For purposes of applying the rules of acquisitive prescription: The ownership of
movables prescribes through uninterrupted possession for four years in good faith or
through uninterrupted possession for eight years, without need of any other condition.
Ownership and other real rights over immovable property, on the other hand, are
acquired by ordinary prescription through possession of ten years10 or thirty years,
without need of title or of good faith

(2) In determining the propriety of the object of the contracts of pledge, chattel
mortgage and real estate mortgage: Only movables can be the object of the
contracts of pledge and chattel mortgage. On the other hand, only immovables can be
the object of a real estate mortgage contract. As a consequence, should the parties
execute a chattel mortgage over a real property, the same is null and void and
registration of the instrument in the Registry of Property does not validate it insofar as
third parties are concerned.

Chapter 1
IMMOVABLE PROPERTY
Notwithstanding the enumeration in the above article, property may be classified into
Art. 415. The following are immovable property: four general classes:
(1) Land, buildings, roads and constructions of all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they are attached to the land or form an (1) Immovable by nature – those which are immovable by their nature such as those
integral part of an immovable; found in paragraph 1 and 8.
(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot (2) Immovable by incorporation – those which are by reason of their attachment to the
be separated therefrom without breaking the material or deterioration of the object; immovable are considered as one, such as lands or buildings in paragraph 1 and trees
(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in and plants in paragraph2 while still attached to the soil; and those attached to an
buildings or on lands by the owner of the immovable in such a manner that it reveals immovable in a fixed in manner as mentioned in paragraph 3.
the intention to attach them permanently to the tenements; (3) Immovable by destination – those which are essentially movable, but by the purpose
(5) Machinery, receptacles, instruments or implements intended by the owner of the for which they have been placed in an immovable, partake of the nature of the latter
tenement for an industry or works which may be carried on in a building or on a piece because of the added utility derived therefrom, such as those mentioned in paragraphs
of land, and which tend directly to meet the needs of the said industry or works; 4, 5, 6, 7 and 9; and
(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar (4) Immovable by analogy or by law – those that are mentioned in paragraph 10 of
nature, in case their owner has placed them or preserves them with the intention to Article 415.
have them permanently attached to the land, and forming a permanent part of it; the
animals in these places are included Real Property under Article 415
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries and slug dumps, while the matter thereof forms part of the bed, and (A) Lands and Roads
waters either running or stagnant;
(9) Docks and structures which, though floating, are intended by their nature and object There is no doubt that lands and roads are always immovable.
to remain at a fixed place on a river, lake, or coast;
(10) Contracts for public works, and servitudes and other real rights over (B) Buildings
immovable property.
A house (or a building) is immovable by incorporation, or by reason of its
Definition of Property adherence to the soil. Thus, a building which is merely superimposed to the soil on is
not a real property. Neither is a house an immovable property once it is demolished, it
Because of the difficulty in drawing a precise definition the term the law does not now ceases to exist as such and hence its character as an immovable likewise ceases.
define the word “property” but simply goes by way of enumeration.
A building shall remain to be an immovable even if treated separately from
the land, therefore a real estate mortgage pertaining to a building is still valid. Even if
the parties to a contract treat the building as a personal property, the immovable
character of the building is not affected. The same shall apply even if the building is
erected on a land owned by another person.

Kinds of Immovable Property Exceptions (Principle of estoppel)


The classification of property into real or personal is provided for by law and may not Trees and plants are immovable while they are attached to the land. Once they are
therefore, be changed by the agreement of the parties into a contract. However, when a removed by means of cutting or uprooting for purposes of making them firewood or
building becomes the object a chattel mortgage, an exception may apply. That is when the timber, they become movable except when timber used as a product of a tenement
parties to a contract treated a building as a personal or movable property, as they have making it an integral part of an immovable.
entered into a chattel mortgage wherein the object is a building, neither of the parties can
assert or claim, later on that the chattel mortgage is invalid by claiming that the building is an (E) Growing Fruits
immovable due to the principle of estoppel. Therefore, as between the parties of that contract,
the court shall consider the building as a personal property. Growing fruits are considered immovable property so long as they are still attached to
It must be noted, that such a rule shall only apply if there is no third person assailing the soil. However, there exceptions that ungathered fruits may be considered as personal
the validity of the chattel mortgage. The reason behind is that the third person is not a privy or movable property. Such as (1) for the purpose of sale of the whole or part of the crops,
to the contract entered by its parties. Therefore, when two parties enter into a contract of (2) for purposes of attachment and execution and (3) in applying the provisions of the
chattel mortgage where the object is a building, the court shall not declare the contract null Chattel Mortgage Law.
and void, however once it is assailed by a third person, the court shall have no choice but to
declare the contract null and void as a contract does not bind third persons who are not a (F) Everything attached to an immovable in a fixed manner
privy thereto.
Everything attached to an immovable in a fixed manner is an immovable property.
Classification of property into real or personal, a question of law The fact that the thing was not attached by the owner of the land or the immovable
himself does not alter the immovable character of the thing.
It is important to note that the Registry of Deeds cannot refuse to accept a registration However, there is an exception. When the parties to a contract treat a machinery, even
of a Chattel Mortgage by reason of the subject property is a real property because such act of if bolted or attached in a fixed manner, as a personal property, they shall be bound by
classifying properties into real or personal is a question of law and therefore is a domain of their agreement under the principle of estoppel notwithstanding the fact that the
the judiciary. machinery is attached in a fixed manner in such a way that it cannot be separated
therefrom without breaking the material or deterioration of the object.
(C) Construction Adhered to the Soil
(G) Statues, reliefs, paintings or other objects for use or ornamentation
To be immovable, the construction must be attached permanently to the land. It
becomes immovable by incorporation. The adherence to the soil must not be of provisional These are real properties by destination. In order that the properties mentioned in this
or temporary character but fixed or integral. Thus anything even though built on the soil but paragraph may be considered as real property, the following requisites must concur: (1)
may be removed and taken from place to place such as steel towers are not immovable they must be placed in buildings or on lands by the owner of the immovable or by his
property. agent; and (2) the attachment must be intended to be permanent.
Distinguished from those mentioned in paragraph 3, the immovable here must be
placed by the owner of the immovable or by his agent, as compared to everything
attached to an immovable which may have been attached by anyone. In paragraph 3 the
separation of the thing attached is impossible whereas in paragraph 4 the separation is
possible without the destruction of the material.

(D) Trees and Plants (H) Machineries, receptacles, instruments or implements;


The properties herein mentioned are essentially movable but by reason of the their The structures mentioned in paragraph 6 are immovable by destination and the Code
purpose they are converted into real properties. However, in order to be immobilized, the requires that they be placed by the owner of the land in order to acquire the same nature or
following requisites must be satisfied: consideration of real property. Even if not placed by the owner, however, such structures
may still qualify as real property under paragraph 1 of Article 415, being a construction
(1) They must be machinery, receptacles, instruments or implements; attached to the soil, provided that such attachment must be of a permanent character.
(2) They must be placed by the owner of the tenement or by his agent; It is worthy to note that animals in the pigeon-houses, beehives, fishponds and breeding
(3) There must be an industry or work carried in such building or on the piece of land; places mentioned in paragraph 6 of Article 415 are likewise considered as real property.
and However, these animals will be considered as personal property under laws which so provide
(4) They must tend directly to meet the needs of said industry or work. for them pursuant to the second paragraph of Article 416 — referring to “real property which
by any special provision of law is considered as personal property.” Thus, the fish in
For the 2nd requisite, it must be noted that when the machinery is placed by the lessee fishponds will be considered as personal property for purposes of theft under the Revised
or tenant, the machinery remains to be a movable property. However, if the lessee did so Penal Code.
place such machinery, by virtue of a contract where it is stipulated that such machinery,
receptacles, instruments or implements shall belong to the owner at the termination of the (J) Fertilizers
lease, such property will become immovable as the lessee or tenant acted as an agent of
the owner of the tenement. These are immovables by destination. The fertilizers must actually be used on the land
For the 4th requisite, aside from the requirement that there must be an industry or because it is only then that the intention of the owner to use them on the tenement is beyond
work carried in such building or on the piece of land, such equipment or machinery must doubt.87 Hence, fertilizers kept in the farmhouse are not immovable.88
be essential and principal elements of the industry or works. Thus, typewriters, cash
registers, etc. usually found in hotels, restaurants and theaters are not essentials. The (K) Mines, quarries, slag dumps, waters …
same goes for forklifts, jeep wagons and pressure pumps, and IBM machines are also
incidentals and are not essentials. On the other hand, machineries of breweries used in the They are considered immovable property “while the matter thereof forms part of the
manufacture of liquor and softdrinks, though movable in nature, are immovable as they bed,” that is, the matter thereof remains unsevered from the soil. Once separated they are no
are essential and principal elements of such industry. longer mines but minerals and are considered as personal property. The waters, either
It is also of clear importance that the work or industry must be carried on a building running or stagnant, referred to here are those which are found in their natural beds such as fl
or on a piece of land, otherwise the machineries cannot be considered as immovables. owing streams, rivers or canals.
Also, the principle of estoppel may apply in this case as when parties to a contract treat a
machinery as a movable property, as long as there is no third party assailing its validity (L) “Docks and Structures”
who is not a privy to the contract thereof, the contract shall be binding upon the parties.
They are considered as immovables, though floating, as long as they are intended by their
nature and object to remain at a fixed place on a river, lake, or coast. In one case, the
Provincial Assessor of Batangas City assessed a real estate tax on the power barges operated
by FELS Energy, Inc., which power barges were moored at Balayan Bay in Calaca,
Batangas. On the question of whether the power barges are real property, the Court held that
they are so and are categorized as immovable property by destination pursuant to the
provisions of Article 415(9) of the Civil Code.

(I) Animal houses, pigeon-houses, etc. …” (M) Rights as Property


The concept of property extends to rights provided that the same is patrimonial in In the area of real property taxation, according to Manila Electric Co. v. CBAA,
nature. Patrimonial rights, in turn, are either: classification of property into personal or real is not the exclusive domain of the Civil Code
specifically article 415. In order to classify whether a property is movable or immovable, the
(1) Real — the power belonging to a person over a specific thing, without a passive pertinent tax laws should be applied.
subject individually determined against whom such right may be personally
exercised; it is enforceable against the whole world; or Under the Title on Real Property Taxation in the Local Government Code of 1991,
(2) personal — the power belonging to one person to demand of another, as a definite the term “machinery” is defined, thus:
passive subject, the fulfillment of a prestation to give, to do or not to do.
(o) “Machinery” embraces machines, equipment, mechanical contrivances,
Real or personal right instruments, appliances or apparatus which may or may not be attached, permanently or
temporarily, to the real property. It includes the physical facilities for production, the
(1) Whether it is a personal or real right installations and appurtenant service, facilities, those which are mobile, self-powered or self-
propelled, and those not permanently attached to the real property which are actually, directly
It will be a real right if the subject matter thereof is a real property, it would be and exclusively used to meet the needs of the particular industry, business or activity and
personal if the subject matter is personal property. As an example, a real estate which by their very nature and purpose are designed for, or necessary to its manufacturing,
mortgage is a real right while a chattel mortgage is a personal right mining, logging, commercial, industrial or agricultural purposes;

(2) Except for rights arising from contracts for public works which are classified as real In the present law on Real Property Taxation
property under paragraph 10 of Article 415, all personal rights will fall under personal
property regardless of the subject matter thereof. (m) Improvement is a valuable addition made to a property or an amelioration in its
condition, amounting to more than a mere repair or replacement of parts involving capital
expenditures and labor, which is intended to enhance its value, beauty or utility or to adapt it
for new or further purposes.

Therefore, for purposes of taxation, a machinery is classified into real property when
it is essential or necessary for the operation of the business, while as to improvements, the
same shall be considered as immovable property also when it enhances the value of the land
beauty or utility intended to be placed permanently, that is to be used as long as the business
should operate.

Concept of Real Property in Realty Taxation


Chapter 2
MOVABLE PROPERTY

Art. 416. The following things are deemed to be personal property: Chose in Action

(1) Those movables susceptible of appropriation which are not included in the preceding A chose in action is personal property and it is an intangible or incorporeal right. A
article; “chose in action” means, literally, a thing in action, and is the right of bringing an action, or a
(2) Real property which by any special provision of law is considered as personal right to recover a debt or money, or a right or proceeding in a court of law to procure the
property; payment of a sum of money, or a right to recover a personal chattel or a sum of money by
(3) Forces of nature which are brought under control by science; and action. Since a chose in action is merely a personal right, it is to be classified as a personal
(4) In general, all things which can be transported from place to place without property. Example: right of redemption
impairment of the real property to which they are fixed. Every obligation creates a personal right on the part of the creditor to demand for its
fulfillment or performance. The right to demand for the performance of the obligation is, by
Art. 417. The following are also considered as personal property: itself, a property. Since the right to demand the performance of the obligation is simply a
personal right on the part of the creditor, such right is classified as personal property.
(1) Obligations and actions which have for their object movables or demandable sums;
and
(2) Shares of stock of agricultural, commercial and industrial entities, although they may Art. 418. Movable property is either consumable or non-consumable. To the first class
have real estate. belong those movables which cannot be used in a manner appropriate to their without their
being consumed; to the second class belong all the others.

The 1st paragraph of article 416 simply goes by process of elimination that when a As a simple explanation, a cigarette is a consumable property while a table is a non-
thing is susceptible of appropriation, and is not included under the enumeration in article consumable property.
415, it shall be classified as personal or movable property. A movable property may also be classified as fungible or non-fungible. This
The 2nd paragraph simply qualifies the definition given under article 415, that a classification, as compared to consumable or non-consumable which is derived from the
property, though included in the enumeration under article 415 are classified as personal nature of the property itself, is derived from the intention of the parties. The movable is
property by special provision of law such as fish or animals for purposes of theft under the classified as fungible if, by the intention of the parties, it can be replaced by another of the
revised penal code and ungathered fruits for purposes of attachment and wholesale. same kind; otherwise, it is a non-fungible.
The 3rd paragraph qualifies the definition given in article 414 that forces of nature
such as lightning, naturally cannot be considered as property except when brought under the
control of man through science. Therefore, gas and electricity, are to be considered as
personal property.
The 4th paragraph, by way of elimination, refers to things which may be transported
from place to place but are not included under article 415 are classified as personal property.
Chapter 3
PROPERTY IN RELATION TO THE PERSON
TO WHOM IT BELONGS

Art. 419. Property is either of public dominion or of private ownership. Public dominion as referring to ‘State Ownership”

From the viewpoint of ownership, the Civil Code classifies properties, as follows: In another sense, the term “public dominion” may also mean properties or things held
by the State by regalian right. Under Section 2 of Article XII of the 1987 Philippine
(1) In relation to the State, its properties are either of public dominion or patrimonial Constitution, which reaffirms the regalian doctrine or jura regalia earlier enshrined in the
properties; 1935 Philippine Constitution, all lands of the public domain as well as all natural resources
(2) In relation to the political subdivisions (provinces, cities and municipalities), their are owned by the State. While these properties are owned by the State, they remain to be part
properties are either of public dominion (for public use) or patrimonial properties; of the public dominion. Examples are gold and copper deposits and such.,
(3) In relation to persons and entities other than the State and its political subdivisions (or
private persons, either individually or collectively), their properties are denominated State ownership distinguished from public ownership
as that of private ownership.
State ownership as compared to public ownership, may be alienated or sold as
Art. 420. The following things are property of public dominion: compared to public ownership. An example is the joint venture agreements between private
entities and the government in exploration and exploitation of natural resources. In public
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges ownership, not even the State can alienate or be the object of contracts.
constructed by the State, banks, shores, roadsteads, and others of similar character;
(2) Those which belongs to the State, without being for public use, and are intended for Intent to devote, sufficient
some public service or for the development of the national wealth.
For a property of the State to fall under public dominion, it is not necessary that the
In relation to the State, there are three kinds of property of public dominion: same be actually used for some public use or for some public service. Mere intention to
devote it to public use is already sufficient. Thus, it is not required that a land be actually
(1) those that are intended for public use; used for public purposes or that a plan to use it as such be present, as long as it is intended to
(2) those that are intended for some public service; and be for public use, it shall be considered as public dominion.
(3) those that are intended for the development of national wealth
“Public use” and “public service” distinguished

Public Dominion referring to “Public Ownership” Public use should be distinguished from public service. In the former, such properties may be
used indiscriminately; however as to the latter, only those authorized by law may avail of
Public dominion as referring to public ownership means that the state does not hold such property.
these properties as an owner but simply takes care of them for the welfare of the general
public.
Property of Public Dominion for Public Use (B) Canal

The first paragraph of Article 420 enumerates the properties of public dominion A “canal” is usually an artificial waterway, drainage, irrigation or navigation. The
which are intended for public use, as follows: “roads, canals, rivers, torrents, ports and rule is simple. If a canal is constructed by private person within his private land and devoted
bridges constructed by the State; banks, shores, roadsteads, and others of similar it exclusively for private use, the same is of private ownership.
character.” Articles 5 and 6 of P.D. No. 1067, as amended, otherwise known as “The Water However, if the canal is situated within a public property or the same is constructed
Code of the Philippines,” add to the above enumeration, the following: by the State and devoted to public use, such canal is property of public dominion.
Therefore, a canal constructed on private land but was used by the public for a long
“Art. 5. The following belong to the State: period, say 22 years, is of public ownership because of prescription. On the other hand, a
canal constructed on public land, even if constructed by a private person, is of public
a. Rivers and their natural beds; ownership.
b. Continuous or intermittent waters of springs and brooks running in their natural
beds and the bed themselves; (C) Rivers
c. Natural lakes and lagoons;
d. All other categories of surface waters such as water flowing over lands, water River is a composite term. It has three parts mainly the running water, the bed, and
from rainfall whether natural or artificial, and water from agriculture runoff, the banks. All these compose the river, therefore all are property of public dominion.
seepage and drainage; Article 70 of the Law of Waters of August 3, 1866 defines the “natural bed” or
e. Atmospheric water; “channel” of a creek or river as “the ground covered by its waters during the highest floods.”
f. Subterranean or ground waters; and Given this definition, a river bed shall extend up to that part being reached by the water
g. Seawater.” during the highest floods or which is the rainy season. Therefore, as long as a land besides a
river, becomes submerged to it during rains and in the highest floods, it is to be considered as
“Art. 6. The following waters found on private lands also belong to the State: part of the bed, thus a property of public dominion.
Riverbanks are expressly declared to be property of public dominion in paragraph 1
a. Continuous or intermittent waters rising on such lands. of Article 420 of the New Civil Code. The phrase “banks of a river” is understood to be those
b. Lakes and lagoons naturally occurring on such lands; “lateral strips or zones of its beds which are washed by the stream only during such high
c. Rain water falling on such lands; floods as do not cause inundations.” In other words, the banks refer to the lateral lines or
d. Subterranean or ground waters; and strips reached by the waters when the river is at high tide.
e. Waters in swamps and marshes.’’ Accretions on river banks, however, belong to the owner of lands adjoining the
banks, provided that the deposit is due to the effects of the current of the river.156 Where the
deposit of land was not formed solely by the natural effect of the water current of the river
(A) Roads bordering said land but is also the consequence of the direct and deliberate intervention of
man, it is deemed a man-made accretion and, as such, part of the public domain.
The “roads” referred to under Article 420(1) of the New Civil Code are the national
highways and roads constructed and maintained by the national government through the
Department of Public Works and Highways.
On the other hand, provincial, city and municipal roads and streets are properties of
public dominion of the local government unit concerned and are governed by Article 424 of
the Civil Code and the provisions of the Local Government Code.
(D) Ports (F) Foreshore Lands

The term “ports” in Article 420(1) of the New Civil Code includes seaports and Foreshore lands are part of the public dominion. The term “foreshore land” was
airports. The MIAA Airport Lands and Buildings constitute a “port” constructed by the State. defined by the Court of Appeals in the case of Hacut v. Director of Lands176 which involved
Hence, they are properties of public dominion and thus owned by the State or the Republic of a parcel of land along Basilan Island. The appellate court, quoting from Bouvier’s Law
the Philippines. Regardless of whether fees are collected on these ports, they are still property Dictionary, defined “foreshore lands” as:
of public dominion.
“that part of the land immediately in front of the shore; the part which is
(E) Shore between high and low water marks, and alternately covered with water and left dry by
the flux and reflux of the tides. It is indicated by a middle line between the highest
“Shore” is understood to be that space which is alternately covered and uncovered by and lowest tides.”
water with the movements of the tides. Its interior or terrestrial limit is the line reached by the
highest equinoctial tides. Where the tides are not appreciable, the shore begins on the land- Once again, therefore, as long as it is reached by the waters, absent any abnormal
side at the line reached by the sea during ordinary storms or tempests. condition, it is a property of public dominion.
Therefore it may be said, that as long as the land beside the sea is reached by water,
not caused by abnormal conditions, such land is classified as the shore and property of public (G) Lakes
dominion.
Natural lakes and lagoons and their beds belong to the State and are part of public
dominion. Lakes and lagoons naturally occurring on private lands also belong to the State.
Natural expropriation Hence, lakes and lagoons developed by a private person on private lands are of private
ownership. The Water Code of the Philippines, however, prohibits any person from
Shores are properties of public dominion. Thus, when the sea advances and private developing a lake, stream or spring for recreational purposes without first obtaining a permit
properties are permanently invaded by the waves, the properties so invaded become part of from the National Water Resources Council.
the shore or beach and they then pass to the public domain. The owner thus dispossessed
does not retain any right to the natural products resulting from their new nature; it is a de What is the natural bed or basin of lakes? In the case of Republic v. Court of Appeals,
facto case of eminent domain, and not subject to indemnity. This process whereby private the Supreme Court defined the extent of a lake bed, as follows:
property is converted into property for public use through the natural action of the sea and the
abandonment by the owner has been called “natural expropriation”. “The natural bed or basin of lakes, ponds, or pools, is the ground covered by
their waters when at their highest ordinary depth.”
Accretions and alluvial deposits caused by the action of the sea are governed by
Article 4 of the Spanish Law of Waters of 1866, an old but still valid law. Under said law, Otherwise stated, where the rise in water level is due to the “extraordinary” action of
“lands added to the shores by accretions and alluvial deposits caused by the action of the nature, rainfall for instance, the portions inundated thereby are not considered part of the bed
sea, form part of the public domain.” Since alluvial formation along the seashore is part of or basin of the body of water in question. The term highest ordinary depth simply refers to
the public domain, it is not open to acquisition by adverse possession by private persons. It is the highest reach of the water in ordinary times such as during summer and not during
outside the commerce of man, unless otherwise declared by either the executive or legislative rainfall. However, if one can argue that a rain is not an extraordinary action of nature then,
branch of the government. the highest ordinary depth shall include the waters reach even in the rainy season.
(H) Others of Similar Character The Doctrine was also adopted by the 1935, 1973 Constitutions. The 1987
Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on “National
A creek is defined as a recess or arm extending from a river and participating in the Economy and Patrimony” to wit:
ebb and flow of the sea. It is a property belonging to the public domain which is not
susceptible to private appropriation and acquisitive prescription, and, as public water, it “Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
cannot be registered under the Torrens System in the name of any individual. mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of agricultural
Property of Public Dominion for Public Service lands, all other natural resources shall not be alienated. The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State.
Paragraph 2 of Article 420 defines properties which, although not for public use, are The State may directly undertake such activities or it may enter into coproduction, joint
for public service and are properties of public dominion. A good example of a property venture, or production-sharing agreements with Filipino citizens, or corporations or
falling under this category is the Roppongi property which is one of the four properties in associations at least sixty per centum of whose capital is owned by such citizens. Such
Japan acquired by the Philippine Government under the Reparations Agreement entered into agreements may be for a period not exceeding twenty-five years, renewable for not more
with Japan in 1956. Under the said agreement, the Roppongi property was specifically than twenty-five years, and under such terms and conditions as may be provided by law. In
designated to house the Philippine Embassy. cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
Property of Public Dominion for The Development of National Wealth
As specifically declared by the above provision, unless it is declared to be an
Under par. 2 of Art. 420, property devoted to the development of the national wealth agricultural land, all other natural resources shall not be alienated.
is also a property of public dominion. Such properties are properties of public dominion
pursuant to the Regalian Doctrine. Fishponds, Watershed Reservation, Submerged Lands

The Regalian Doctrine Fishponds are owned by the state. Therefore they cannot be alienated but only leased.
Under Section 45 of R.A. No. 8550, otherwise known as “The Philippine Fisheries Code of
Under the Regalian Doctrine, all lands not otherwise appearing to be clearly within 1998,” public lands such as tidal swamps, mangroves, marshes, foreshore lands and ponds
private ownership are presumed to belong to the State. suitable for fishery operations shall not be disposed or alienated. They may, however, be the
The Doctrine was first introduced by the Spaniards through the Laws of the Indies subject matter of a fishpond lease agreement.
and Royal Cedulas which were followed by the Ley Hipotecaria or the Mortgage Law of A watershed reservation is also a natural resource and cannot therefore be alienated.
1983. The Spanish Mortgage Law provided for the systematic registration of titles and deeds A positive act (e.g., an official proclamation) of the Executive Department is needed to
as well as possessory claims. declassify land which had been earlier classified as a watershed reservation and to convert it
into alienable or disposable land for agricultural or other purposes. Unless and until the land
classified as such is released in an official proclamation so that it may form part of the
disposable agricultural lands of the public domain, the rules on confirmation of imperfect
title do not apply.
Submerged lands, like the waters (sea or bay) above them, are part of the State’s
inalienable natural resources. Submerged lands are property of public dominion, absolutely
inalienable and outside the commerce of man. This is also true with respect to foreshore
lands. Any sale of submerged or foreshore lands is void being contrary to the Constitution.
Classification of Public Lands

Under Sec 3 of Article XII of the 1987 Constitution, lands of the public domain
cannot be alienated with the exception of agricultural lands. It is clear that prior to a
reclassification of a forest land into an agricultural land, the former are not capable of private
appropriation.
The classification of public lands is an exclusive prerogative of the Executive
Department of the Government and not of the courts. C.A. No. 141, states that it is only the
President, upon recommendation of the proper department head, who has the authority to
classify the lands of the public domain into alienable or disposable, timber and mineral lands.
In the absence of such classification, the land remains unclassified land until it is
released therefrom and rendered open to disposition. Unless public land is shown to have
been reclassified or alieanated to a private person by the State, it remains part of the
inalienable public domain. To overcome this presumption, incontrovertible evidence must be
established that the land subject of the application is alienable or disposable.

When Public Lands Classified as Patrimonial Property

It is clear that only after the Government has declared the land to be alienable and
disposable agricultural lands that the year of entry, cultivation and exclusive and adverse
possession can be counted for purposes of imperfect title.
From the foregoing, it appears that agricultural public lands are classified as
patrimonial property of the State as soon as they are made available for alienation or
disposition.

Characteristics of Properties of Public Dominion

(1) They are outside the commerce of man.

Being outside the commerce of man, it cannot be alienated or leased or


otherwise the subject matter of contracts.

(2) They are not susceptible to private appropriation and acquisitive prescription.
(3) They are not subject to attachment and execution.
(4) They cannot be burdened with voluntary easements.
Title VI. USUFRUCT
Chapter 1
USUFRUCT IN GENERAL

Art. 562. Usufruct gives a right to enjoy the property of another with
the obligation of preserving its form and substance, unless the title constituting
it or the law otherwise provides. Obligation to preserve the “Form and Substance”

Usufruct Defined While the usufructuary is entitled to enjoy and use the property in usufruct, he is,
ordinarily, obliged to preserve its form and substance.
Usufruct is a real right, of a temporary character, which authorizes the holder to enjoy However, in the following instances, which constitute as deviations from the rule, the
all the utilities which result from the normal exploitation of the property of another in usufructuary is not obliged to preserve the form and substance of the thing in usufruct:
accordance with its destination and which imposes the obligation of restoring at the time
specified either the thing itself or in special cases its equivalent. (1) When the law or the title creating the usufruct provides that the usufructuary is not so
The holder of the usufruct is known as the “usufructuary”. obliged;
(2) When the usufruct includes things which, without being consumed, gradually
Usufruct is a real right (subject to specific performance?) deteriorate through wear and tear; and
(3) When the usufruct includes things which cannot be used without being consumed.
Usufruct being a real right grants the enjoyment of the property which includes both
the jus utendi and jus fruendi. It is, therefore, a real right and in the nature of an encumbrance Meaning of Form and Substance
upon another’s property which does not suppose a disintegration of ownership.
“Substance,” according to some commentators, refers to the matter of the thing, the
The holder of the right of usufruct, called the “usufructuary,” is entitled to exercise integral elements that compose it; and “form” refers to the extrinsic characteristics of the
the right to enjoy the property (jus utendi)8 and the right to receive the fruits thereof (jus same, those that make it apt and adequate for the use, destination and particular purpose to
fruendi). In usufruct, the usufructuary becomes entitled to all the natural, industrial and civil which the owner intends it.
fruits of the property in usufruct10 even in the absence of an agreement to that effect, except The following are not alterations which destroy the form and substance of the
when there is a different agreement between the parties. property:

Temporary (1) When the improvement can be removed without damage to the property at the end of
the usufruct;
Usufruct is of a temporary character since the right is extinguished upon expiration of (2) When although the improvement cannot be removed it will not cause the successor in
the period for which it was constituted or upon the death of the usufructuary, as a rule. the use of the thing to spend considerable expenses or attention in its preservation or
exploitation considering the circumstances of the case; and
(3) When although the alteration may be burdensome to the successor in the use of the
property, the usufructuary guarantees that he will restore thing to its original state.
CONSTITUTION OF USUFRUCT Other Classifications

Art. 563. Usufruct is constituted by law, by the will of private persons expressed in (1) Total and partial — A usufruct may be constituted on the whole (“total”) or part
acts inter vivos or in a last will and testament, and by prescription. (“partial”) of a thing.
(2) Simple and multiple — A usufruct may be constituted in favor of one person, in
Art. 564. Usufruct may be constituted on the whole or a part of the fruits of the thing, which case, it is called a “simple usufruct;” or it may be constituted in favor of two or
in favor of one more persons, simultaneously or successively, and in every case from or to a more persons, in which case, it is called a “multiple usufruct.” A multiple usufruct, in
certain day, purely or conditionally. turn, may either be “simultaneous” or “successive.” In the former (simultaneous), all
It may also be constituted on a right, provided it is not strictly personal or the persons in whose favor the usufruct is constituted are to enjoy the usufruct at the
intransmissible. same time. In the latter (successive), they will enjoy the usufruct one after another.
(3) Pure, with a condition or with a period — A usufruct may be constituted from or to a
Art. 565. The rights and obligations of the usufructuary shall be those provided in the certain day (with a period), purely or conditionally.
title constituting the usufruct; in default of such title, or in case it is deficient, the provisions (4) Proper (normal) and improper (abnormal) — A usufruct is proper or normal when it
contained in the two following Chapters shall be observed. is constituted over a non-consumable thing; it is improper or abnormal (quasi-
usufruct in Roman Law) when it is constituted over a consumable thing. Examples of
Manner or modes of Creation abnormal usufruct, Art. 573, 574).

Contract is only one of the ways of creating a usufruct. Pursuant to Article 563 of the Object or subject matter of usufruct
New Civil Code, a usufruct may be created through any of the following modes:
A usufruct may fall upon a corporeal thing or a right, whether real or personal. With
(1) By law. A usufruct that is constituted by law is called “legal usufruct.” An example of respect to rights, however, it is necessary that the following requisites be satisfied:
this is the usufruct of the parents over the property of their minor children living in
their custody and under their parental authority under the provisions of Article 226 of (1) It must not be strictly personal;
the Family Code. (2) It must not be intransmissible; and
(2) By the will of private persons expressed in acts inter vivos, such as contracts and (3) It must have its own independent existence. Hence, a servitude cannot be the
donations, or expressed in a last will and testament. A usufruct which is created object of usufruct because it has no existence independent of the tenements.
through this manner is called “voluntary usufruct.” In this kind of usufruct, it is
necessary that the usufruct be constituted by the owner of the property.
(3) By prescription. In this case, the usufruct is called a “mixed usufruct.”
Chapter 2
Rights of the Usufructruary
(566 to 582) Rule as to pending natural and civil fruits

“Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong
Essence or general sense in the rights of the usufructuary to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner.
In the preceding cases, the usufructuary, at the beginning of the usufruct, has no
Usufruct, in essence, is nothing else but simply allowing one to enjoy another’s obligation to refund to the owner any expenses incurred; but the owner shall be obliged to
property. It is also defined as the right to enjoy the property of another temporarily, including reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the
both the jus utendi and the jus fruendi. Since possession is essential to free enjoyment of the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the
property, the right to the possession of the property held in usufruct also belongs to the usufructuary.
usufructuary, at least during the effectivity of the usufruct. The provisions of this article shall not prejudice the rights of third persons, acquired
In other words, the usufructuary has the right to enjoy the property, to the same extent either at the beginning or at the termination of the usufruct.”
as
the owner, but only with respect to its use and the receipt of fruits. “Art. 568. If the usufructuary has leased the lands or tenements given in usufruct, and
the usufruct should expire before the termination of the lease, he or his heirs and successors
Rights of the Usufructuary shall receive only the proportionate share of the rent that must be paid by the lessee.”

(1) Right to the fruits “Art. 569. Civil fruits are deemed to accrue daily, and belong to the usufructuary in
proportion to the time the usufruct may last.”
“Art. 566. The usufructuary shall be entitled to all the natural, industrial and civil
fruits of the property in usufruct. With respect to hidden treasure which may be found on “Art 570. Whenever a usufruct is constituted on the right to receive a rent or
the land or tenement, he shall be considered a stranger.” periodical pension, whether in money or in fruits, or in the interest on bonds or securities
payable to bearer, each payment due shall be considered as the proceeds or fruits of such
As an exception to the rule that the owner is entitled to the fruits of the property, the right.
usufructuary, in the essence of usufruct, therefore is entitled to such fruits. This right of the Whenever it consists in the enjoyment of benefits accruing from a participation in
usufructuary to receive the entirety of the fruits presupposes that: (1) the usufruct is any industrial or commercial enterprise, the date of the distribution of which is not fixed,
constituted upon the whole property, otherwise, the usufructuary shall only be entitled to the such benefits shall have the same character.
fruits of that portion over which he has a usufruct; and (2) the parties do not have an In either case they shall be distributed as civil fruits, and shall be applied in the
agreement to the contrary. manner prescribed in the preceding article.”
However, when the fruits pertain to minerals gathered through mining, it is
considered to diminish the substance and as a result they cannot be considered as fruits but as Explanation
part of the capital except, when the property has been previously subjected to such activity,
only then can they be considered as fruits. Article 567, for the rules pertains to pending natural fruits which provides that the
When it comes to stocks, the dividends whether cash or stocks shall represent the usufructuary owns the growing fruits when the usufruct begins without having to reimburse
fruits thereof. the owner the necessary expenses, whereas at the termination of the usufruct, the growing
fruits shall belong to the owner but with the obligation to reimburse the usufructuary for the
expenses.
Article 568 and 569 applies to rents in case the usufructuary leases the property. It
provides that the usufructuary shall be entitled to such rents only during the period of the
usufruct. Article 570 is self-explanatory.
(2) The right to enjoy accessions, servitudes and easements (5) Usufruct over fruit-bearing trees and shrubs

“Art. 571. The usufructuary shall have the right to enjoy any increase which the thing “Art. 575. The usufructuary of fruit-bearing trees and shrubs may make use of the
in usufruct may acquire through accession, the servitudes established in its favor, and, dead trunks, and even of those cut off or uprooted by accident, under the obligation to
in general, all the benefits inherent therein.” replace them with new plants.”

In these cases, if the owner would have enjoyed such benefits, it follows that the “Art. 576. If in consequence of a calamity or extraordinary event, the trees or
usufructuary is also entitled to enjoy such benefits. shrubs shall have disappeared in such considerable number that it would not be possible
or it would be too burdensome to replace them, the usufructuary may leave the dead,
(3) Right of the usufructuary to bring an action fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove
them and clear the land.”
“Art. 578. The usufructuary of an action to recover real property or a real right, or
any movable property, has the right to bring the action and to oblige the owner thereof to
give him the authority for this purpose and to furnish him whatever proof he may have. If (6) The right to lease the property
in consequence of the enforcement of the action he acquires the thing claimed, the “Art. 572. The usufructuary may personally enjoy the thing in usufruct, lease it to
usufruct shall be limited to the fruits, the dominion remaining with the owner.” another, or alienate his right of usufruct, even by a gratuitous title; but all the contracts he
may enter into as such usufructuary shall terminate upon the expiration of the usufruct,
saving leases of rural lands, which shall be considered as subsisting during the
(4) The right to enjoy the benefits in the usufruct of woodland agricultural year.”
“Art. 577. The usufructuary of woodland may enjoy all the benefits which it may (7) Right to avail of the Doctrine of Self-Help
produce according to its nature. If the woodland is a copse or consists of timber for
building, the usufructuary may do such ordinary cutting or felling as the owner was in the “Art. 429. The owner or lawful possessor of a thing has the right to exclude any
habit of doing, and in default of this, he may do so in accordance with the custom of the person from the enjoyment and disposal thereof. For this purpose, he may use such force
place, as to the manner, amount and season. as may be reasonably necessary to repel or prevent an actual or threatened unlawful
In any case the felling or cutting of trees shall be made in such manner as not to physical invasion or usurpation of his property.”
prejudice the preservation of the land.
In nurseries, the usufructuary may make the necessary thinnings in order that the
The preceding 2 rights is a result or consequence of the right to possession or jus
remaining trees may properly grow.
With the exception of the provisions of the preceding paragraphs, the usufructuary possessionis , hence such possession being protected by law, such protection as it extends to
cannot cut down trees unless it be to restore or improve some of the things in usufruct, the owner, also extends or applies to the usufructuary.
and in such case he shall first inform the owner of the necessity for the work.”
Right does not include disposal
The jus utendi and jus fruendi over the property, including the jus possessidendi, are
transferred to the usufructuary. However, the power to encumber, alienate, transform and
even destroy the same, remains to the owner of the property. Hence, the owner maintains the
jus disponendi and does not transfer to the usufructuary.
Rights that may be exercised by the owner (4) The right to impose voluntary easement

(1) Right to alienate the property “Article 689. The owner of a tenement or piece of land, the usufruct of which
belongs to another, may impose thereon, without the consent of the usufructuary, any
“Art. 581. The owner of property the usufruct of which is held by another, may servitudes which will not injure the right of usufruct.”
alienate it, but he cannot alter its form or substance or do anything thereon which may be
prejudicial to the usufructuary.” “Article 690. Whenever the naked ownership of a tenement or piece of land
belongs to one person and the beneficial ownership to another, no perpetual voluntary
The above article provides for the right of owner to alienate the property subject to easement may be established thereon without the consent of both owners.”
the exception that the owner may not alter it which may be prejudicial to the
usufructuary. NOTE: the owner cannot lease the property as the possession of the usufruct is the
essence of usufructuary. However, as discussed above, the usufructuary may lease the
(2) Right to encumber property if he so desires.

This right is contained in article 600. This and the preceding right is premised on
the fact that the jus dispossessionis or the right to dispose remains with the owner of the Right to introduce improvements
property.
“Art. 579. The usufructuary may make on the property held in usufruct such useful
(3) The right to construct and make improvements improvements or expenses for mere pleasure as he may deem proper, provided he does not
alter its form or substance; but he shall have no right to be indemnified therefor. He may,
“Article 595. The owner may construct any works and make any improvements however, remove such improvements, should it be possible to do so without damage to the
of which the immovable in usufruct is susceptible, or make new plantings thereon if it be property.”
rural, provided that such acts do not cause a diminution in the value of the usufruct or
“Art. 580. The usufructuary may set off the improvements he may have made on the
prejudice the right of the usufructuary.”
property against any damage to the same.”
The owner also has the right to construct in the property provided that it will not
cause a diminution of the value of the usufruct. Explanation

The two articles specifically apply to usufructuary. In cases of improvements under a


contract of usufruct, the articles on accession and possession of the Civil Code do not apply.
Articles 579 and 580 are the ones which governs such cases under a usufruct.
deducting the sums which may be agreed upon or judicially allowed him for such
administration.”

Chapter 3
Obligations of the Usufructruary
(583 to 588) “Art. 588. After the security has been given by the usufructuary, he shall have a right
to all the proceeds and benefi ts from the day on which, in accordance with the title
In general, the obligations of the usufructuary may be grouped into three (3) different stages: constituting the usufruct, he should have commenced to receive them.”

(1) Those required at the commencement of the usufruct; Explanation


(2) Those required during the life of the usufruct; and
(3) Those required at the termination of the usufruct. Article 583 provides for the two general obligations of the usufructuary at the
commencement of the usufruct.
Article 586 provides for the effect upon failure of the usufructuary to give security.
OBLIGATIONS REQUIRED AT THE COMMENCEMENT One may ask then, what is the effect of failure to make an inventory? It was held by several
civilists that the effect to give security and to make an inventory are the same, thus article
“Art. 583. The usufructuary, before entering upon the enjoyment of the property, is 586 shall apply to either or both. Under said article the owner has the following rights:
obliged:
Since the usufructuary cannot, as yet, take possession of the property prior to his
(1) To make, after notice to the owner or his legitimate representative, an inventory compliance with the foregoing obligations, the owner may, if he so desires,
of all the property, which shall contain an appraisal of the movables and a
description of the condition of the immovables; (1) retain in his possession the property in usufruct as its administrator.
(2) To give security, binding himself to fulfill the obligations imposed upon him in
accordance with this Chapter.” If he prefers not to retain possession of the property, he may demand instead:

“Art. 586. Should the usufructuary fail to give security in the cases in which he is (2) that the immovables be placed under administration;
bound to give it, the owner may demand that the immovables be placed under administration, (3) that the movables be sold and its proceeds be invested in safe securities;
that the movables be sold, that the public bonds, instruments of credit payable to order or to (4) that the public bonds, instruments of credit payable to order or bearer be converted
bearer be converted into registered certificates or deposited in a bank or public institution, into registered certificates or deposited in a bank or public institution; or that the
and that the capital or sums in cash and the proceeds of the sale of the movable property be capital or sums in cash be invested in safe securities.
invested in safe securities.
The interest on the proceeds of the sale of the movables and that on public securities In these cases, the interest on the proceeds of the sale of the movables and that on
and bonds, and the proceeds of the property placed under administration, shall belong to the public securities and bonds, and the proceeds of the property placed under administration,
usufructuary. shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until the usufructuary gives security or
is excused from so doing, retain in his possession the property in usufruct as administrator, Article 588 provides for the effect upon compliance with article 583 which provides
subject to the obligation to deliver to the usufructuary the net proceeds thereof, after for the retroactive effect of such compliance from the beginning of the constitution of the
usufruct.
Exemptions to give security alienate his usufuctuary right or lease the same for that would mean that he does not need the
house or the furniture or the implements.
“Art. 584. The provisions of No. 2 of the preceding article shall not apply to the OBLIGATIONS DURING THE LIFE OF THE USUFRUCT
donor who has reserved the usufruct of the property donated, or to the parents who are
usufructuaries of their children’s property, except when the parents contract a second Once the usufructuary has entered into the possession and enjoyment of the property subject
marriage.” matter of a proper or normal usufruct, he has the obligation to:

The above provision cites those exempted to give security in order to exercise the (1) Art. 589. The usufructuary shall take care of the things given in usufruct as a good
rights of possession and the benefits of the usufruct. father of a family.
(2) Preserve its form and substance (art. 1562)
Instances where usufructuary may be relieved of such obligations
To further carry out this obligation, the law specifically tasks the usufructuary to:
Art. 587. If the usufructuary who has not given security claims, by virtue of a promise
under oath, the delivery of the furniture necessary for his use, and that he and his family be (1) Make the ordinary repairs on the property held in usufruct (Art. 592)
allowed to live in a house included in the usufruct, the court may grant this petition, after due (2) Pay the annual charges and taxes. which are imposed on the fruits of the property held
consideration of the facts of the case. in usufruct; (Art. 596)
(3) Notify the owner of the need of urgent extraordinary repairs; (Art. 593)
The same rule shall be observed with respect to implements, tools and other movable (4) Notify the owner of any act of a third person that may be prejudicial to the rights of
property necessary for an industry or vocation in which he is engaged. If the owner does not the owner. (Art. 601)
wish that certain articles be sold because of their artistic worth or because they have a (5) Pay the expenses, costs and liabilities for suits involving the usufruct; (Art. 602)
sentimental value, he may demand their delivery to him upon his giving security for the
payment of the legal interest on their appraised value.”

The following are instances where the usufructuary may be relieved of the obligation
to give security and make an inventory

(1) The usufructuary may be excused from the obligation of making an inventory or of
giving security when no one will be injured thereby.
(2) When the enjoyment of the property subject of the usufruct is to be acquired through
caucion juratoria.

Caucion juratoria refers to the promise under oath made in court by the usufructuary
who has not given security for the purpose of acquiring the use of the following:

(1) furniture necessary for his use;


(2) dwelling house; or
(3) implements, tools and other movable property necessary for an industry or
vocation in which he is engaged. In this kind of usufruct, the usufructuary has no right to
Ordinary and Extraordinary Repairs Payment of Annual Taxes and Charges

“Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the “Art. 596. The payment of annual charges and taxes and of those considered as a lien
thing given in usufruct. By ordinary repairs are understood such as are required by the wear on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct
and tear due to the natural use of the thing and are indispensable for its preservation. Should lasts.”
the usufructuary fail to make them after demand by the owner, the latter may make them at
the expense of the usufructuary.” “Art. 597. The taxes which, during the usufruct, may be imposed directly on the
capital, shall be at the expense of the owner.
“Art. 593. Extraordinary repairs shall be at the expense of the owner. The If the latter has paid them, the usufructuary shall pay him the proper interest on the
usufructuary is obliged to notify the owner when the need for such repairs is urgent.” sums which may have been paid in that character; and, if the said sums have been advanced
by the usufructuary, he shall recover the amount thereof at the termination of the usufruct.”
“Art. 594. If the owner should make the extraordinary repairs, he shall have a right to
demand of the usufructuary the legal interest on the amount expended for the time that the Self-Explanatory
usufruct lasts.”
Real Estate Taxes on Land (Whether tax on capital or not)
Explanation
According to the Supreme Court, land tax directly burdens the capital, that is, the real
The above articles governs the rules on repairs of the object of the usufruct. Under value of the property and should be paid by the owner. This is also the view of Senator
article 592, the ordinary repairs are to be borne by the usufructuary. If he fails to do so after Tolentino despite the fact that such kind of taxes are paid annually. Citing Sanchez Roman,
demand by the owner, the latter may make them at his expense. Tolentino explains that “annual charges and taxes” in Article 596 of the New Civil Code are
Article 593 and 594 applies to extraordinary repairs only. Note that, when it comes to chargeable against the usufructuary only when they may be considered as a lien upon the
extraordinary repairs, the owner cannot be compelled by the usufructuary to make such fruits.
extraordinary repairs. The owner, after notification of the usufructuary merely has the option
and not the obligation to do so and in such a case has the right to be reimbursed the interest Obligation to Notify Owner of Prejudicial Acts
on the principal cost.
In case the usufructuary makes the extraordinary repair himself, he is entitled to be “Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third
reimbursed the increase in value of the property and has the right to retain possession until person, of which he may have knowledge, that may be prejudicial to the rights of ownership,
reimbursed. However, he may not exercised his right of retention and reimbursement when and he shall be liable should he not do so, for damages, as if they had been caused through
he has failed to notify the owner the property first, and only after such owner has refused, his own fault.”
may the usufructuary do such extraordinary repairs. Absent such notice, the expenses shall
be borne by him alone. Explanation
The following REQUISITES MUST CONCUR in order that the thing be an
ordinary repair, otherwise, it shall be considered as an “extraordinary repair” Since any issue affecting the title of the usufructuary may also affect the title of the
owner, notification of such is proper. This is because the usufructuary is obliged to return the
(1) It is required by the wear and tear due to the natural use of the thing; and property to the owner at the termination of the usufruct.
(2) It is indispensable for the preservation of the thing. The usufructuary is not, however, obliged to give notice of any act of a third person
which does not affect the right of ownership, such as when the act of a third person affects
only the rights of the usufructuary with respect to the fruits of the property.
Chapter 4 In case of town, corporation or association
EXTINGUISHMENT OF USUFRUCT
“Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or
Extinguishment of usufruct association for more than fifty years. If it has been constituted, and before the expiration of
such period the town is abandoned, or the corporation or association is dissolved, the usufruct
“Art. 603. Usufruct is extinguished: shall be extinguished by reason thereof.”

(1) By the death of the usufructuary, unless a contrary intention clearly appears; Explanation
(2) By the expiration of the period for which it was constituted or by the fulfillment of
any resolutory condition provided in the title creating the usufruct; Unlike a natural person, the lifetime of a corporation or association may be extended
(3) By merger of the usufruct and ownership in the same person; indefinitely. For this reason, the law limits the life of such usufruct.
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the usufruct; Exceptions when usufruct is not terminated upon death of usufructuary
(7) By prescription.”
By way of exceptions, the death of the usufructuary shall not result in the
extinguishment of the usufruct in the following situations:
Aside from the foregoing causes, usufruct is also extinguished:
(1) When the contrary intention clearly appears.
(1) by the non-compliance with any condition agreed upon by the parties as grounds for
terminating the usufruct; Hence, when the parties stipulate that the death of the usufructuary will not extinguish
(2) by the rescission or annulment of the contract which is the source of the right of the usufruct then it shall continue. It is essential, however, that there must be an express
usufruct; and agreement that the usufruct shall continue even after the death of the usufructuary; otherwise,
(3) by any causes which extinguish legal usufruct. the death of the usufructuary will extinguish the usufruct. In other words, even if a period or
condition is stipulated, the usufruct is extinguished upon the death of the usufructuary unless
there is an express agreement that it shall continue even after such death.
By the Death of the Usufructuary
(2) In multiple usufructs, the usufruct is extinguished only upon the death of the last
A usufruct is meant only as a lifetime grant. Ordinarily the death of the usufructuary survivor.
extinguishes the usufruct. However, it is important to note that it is the death of the
usufructuary and not the naked owner which extinguishes the usufruct, even after the death “Art. 611. A usufruct constituted in favor of several persons living at the time of
of the naked owner, the usufruct is not extinguished unless the parties expressly so stipulates. its constitution shall not be extinguished until the death of the last survivor.”
By Expiration of the period Exceptions to loss of the thing

The expiration of the period for which the usufruct was constituted or the fulfillment “Art. 607. If the usufruct is constituted on immovable property of which a building
of the resolutory condition imposed on the usufruct by the person constituting it shall forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary
likewise result in the extinguishment of the usufruct. shall have a right to make use of the land and the materials.
However, even prior to the arrival of the period or prior to the fulfillment of the The same rule shall be applied if the usufruct is constituted on a building only and the
resolutory condition, the usufruct is already extinguished upon the death of the usufructuary same should be destroyed. But in such a case, if the owner should wish to construct another
unless there is an express agreement that the usufruct shall continue even after such death. building, he shall have a right to occupy the land and to make use of the materials, being
obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon
“Art. 606. A usufruct granted for the time that may elapse before a third person the sum equivalent to the value of the land and of the materials.”
attains a certain age, shall subsist for the number of years specified, even if the third person
should die before the period expires, unless such usufruct has been expressly granted only in “Art. 608. If the usufructuary shares with the owner the insurance of the tenement
consideration of the existence of such person.” given in usufruct, the former shall, in case of loss, continue in the enjoyment of the new
building, should one be constructed, or shall receive the interest on the insurance indemnity if
An example of the above article would be when A creates a usufruct in favor of B, the owner does not wish to rebuild.
which is to last until his child C shall reach 18 years. If C dies at 10, the usufruct shall Should the usufructuary have refused to contribute to the insurance, the owner
continue for 8 years, except when the usufruct is made in order for B to be able to support C, insuring the tenement alone, the latter shall receive the full amount of the insurance
in such case the usufruct is extinguished upon the death of C. indemnity in case of loss, saving always the right granted to the usufructuary in the preceding
article.”

By loss of the thing “Art. 609. Should the thing in usufruct be expropriated for public use, the owner shall
be obliged either to replace it with another thing of the same value and of similar conditions,
A thing is lost when it perishes, or goes out of commerce, or disappears in such a or to pay the usufructuary the legal interest on the amount of the indemnity for the whole
manner that its existence is unknown or it cannot be recovered. Hence, loss may either be period of the usufruct. If the owner chooses the latter alternative, he shall give security for
physical or juridical. the payment of the interest.”

Explanation
“Art. 604. If the thing given in usufruct should be lost only in part, the right shall
continue on the remaining part.” The two articles provide for cases where the usufruct is not terminated upon loss of
the thing. Article 607 provides for the rules in case where the usufruct is constituted upon a
land with a building or upon the building itself, is lost. The second paragraph provides the
right of the parties in case the owner wants to rebuild.
Article 608 provides for the rules in cases where insurance payment are either shared
or not by the parties.
Artilce 609 provides for the rules in case the object of the usufruct has been
expropriated by the government.
Effect of Bad Use
Obligation of usufructuary upon termination
“Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the
abuse should cause considerable injury to the owner, the latter may demand that the thing be “Art. 612. Upon the termination of the usufruct, the thing in usufruct shall be
delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the delivered to the owner, without prejudice to the right of retention pertaining to the
same, after deducting the expenses and the compensation which may be allowed him for its usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed.
administration.” After the delivery has been made, the security or mortgage shall be cancelled.”
TITLE VII. EASEMENTS OR SERVITUDES

Chapter 1
EASEMENTS IN GENERAL Easement is Real Right

Concept Easement is a real right which right consists of a limited use and enjoyment of the
thing without possession and gives rise to an action in rem in favor of the owner of the
“Art. 613. An easement or servitude is an encumbrance imposed upon an immovable tenement of the easement and against any possessor of the servient estate. Unlike a lease, an
for the benefit of another immovable belonging to a different owner. The immovable in favor easement does not give its holder a right of possession over the property, but only a right of
of which the easement is established is called the dominant estate; that which is subject use for a special and limited purpose. It gives the holder of the easement an incorporeal
thereto, the servient estate.” interest on the land, which is non-possessory in character, but grants no title thereto.

“Art. 614. Servitudes may also be established for the benefit of a community, or of Constituted over immovable property
one or more persons to whom the encumbered estate does not belong.”
Whatever may be the kind of easement, the right is always enjoyed over an
Easement defined immovable property.”Immovable property” must be understood in its vulgar sense which
pertains to anything which cannot be moved from place to another.
The foregoing definition (Art. 613), however, represents only one of the two aspects
of easement or servitude. The other aspect of easement or servitude refers to the right of
servitude (jus servitutes), or the right which corresponds to the burden imposed. From this Constituted over another’s property
viewpoint, an easement or servitude may thus be defined as “a real right, constituted on the
corporeal immovable property of another, by virtue of which the owner has to refrain from In Bogo-Medellin Milling Co., Inc. v. Court of Appeals 407 SCRA 518 (2003),
doing, or must allow someone to do, something on his property, for the benefit of another Medellin declared the property they owned to be “a railroad right of way”. After sometime,
thing or person.” the owners of the property filed an action to recover the said property. Medellin, as a defense
interposed prescription. The court held:

Easement and Servitude, distinguished “An easement or servitude is a real right, constituted on the corporeal immovable
property of another, by virtue of which the owner has to refrain from doing, or must allow
Properly speaking, “easement” refers to the right enjoyed by one while “servitude” someone to do, something on his property, for the benefit of another thing or person. It exists
refers to the burden imposed upon the other. Put a little differently, easement and servitude only when the servient and dominant estates belong to two different owners. It gives the
are but the two aspects of the same concept. The passive aspect of being an encumbrance is holder of the easement an incorporeal interest on the land but grants no title thereto.
what should properly be referred to as the “servitude;” whereas the active aspect of being a Therefore, an acknowledgment of the easement is an admission that the property belongs
right is what should properly be referred to as an “easement.” to another.”
The Court also held that upon expiration of the period of easement, the period of
acquisitive prescription did not run because Medellin did not possess the land as an owner as
it continued to acknowledged that the property to be an easement thus not under the color of
title.
Kinds of Easements Jabonete v. Monteverde

Easements are classified, as follows: Plaintiff entered into a compromise agreement with the defendant, whereby the said
defendant granted the plaintiffs and their family, friends, drivers, servants and jeeps a right of
(1) As to the recipient of the benefit, it is either real or personal; way. Subsequently, the plaintiffs vacated their property, resulting in the closure of the right
(2) As to its source, it is either legal or voluntary. In case of legal easements, it is of way by defendant. When the property was acquired by another through DBP, they
either: demanded that the right of way be heeded by defendant, which defendant refused. Is
defendant in contempt for defying the compromise agreement?
(a) public legal easement; or No, The servitude established was clearly for the benefit alone of the plaintiffs and
(b) private legal easement. the persons above enumerated and it is clear that the lower court, as well as the parties
addressed by the said order, did not intend the same to pass on to the plaintiffs’ successors-
(3) As to its exercise, it is either: continuous or discontinuous, apparent or non- in-interest. In other words, the right acquired by the original plaintiffs was a personal
apparent, and positive or negative. servitude under Article 614 of the Civil Code, and not a praedial servitude that inures to the
benefit of whoever owns the dominant estate.
Real and Personal Easements

A real or praedial servitude is said to be imposed upon one of the two estates, called Legal and Voluntary Easements
the servient estate or praedium serviens, for the use or advantage of the other, called the
dominant estate or praedium dominans. In the ultimate analysis, the right of servitude resides “Art. 619. Easements are established either by law or by the will of the owners. The
in the estate (praedium) itself and not in the physical person who successively former are called legal and the latter voluntary easements.”
occupies or enjoys it.
A personal servitude, on the other hand, is due, not to a thing, but to a person, Legal easements are those which can be enforced by force of law and, therefore, may
independently of the latter’s ownership of any immovable or estate. If the servitude is be established even against the will of the owner of the servient estate. Legal easements may
established for the advantage of a given person, the same is inseparable from his person, and have for their objects either public use, in which case the easement is called “public legal
necessarily ceases at his death, unless there is a stipulation to the contrary. In addition, the easement,” or the interest of private persons, in which case the easement is called “private
right to personal servitude does not extend to the successors-in-interest of the person to legal easement.
whom the right is granted. A voluntary easement is that which is created by reason of the will of the owner of
the servient estate. Note that only the owner can constitute a servitude over his property since
it operates as a limitation upon his title or ownership. Or, to be more accurate, it is only the
owner who can create a servitude that will bind the servient estate (praedium serviens). All
other servitudes which are imposed by non-owners (such usufructuary, possessors-in-good
faith, lessee, etc.) do not bind the servient estate but only the person establishing the same.
Necessarily, such servitudes shall terminate upon the termination of the right of the person
establishing the same.
Continuous and discontinuous; apparent and non-apparent; positive and negative Characteristics of Easements
easements
Art. 617. Easements are inseparable from the estate to which they actively or
“Art. 615. Easements may be continuous or discontinuous, apparent or non-apparent. passively belong.
Continuous easements are those the use of which is or may be incessant, Art. 618. Easements are indivisible. If the servient estate is divided between two or
without the intervention of any act of man. more persons, the easement is not modified, and each of them must bear it on the part which
Discontinuous easements are those which are used at intervals and depend corresponds to him.
upon the acts of man.
Apparent easements are those which are made known and are continually kept
in view by external signs that reveal the use and enjoyment of the same. Inseparability
Non-apparent easements are those which show no external indication of their
existence.” In the words of Article 617 of the New Civil Code, the easement is inseparable from
the estate to which it actively or passively belongs. It cannot, therefore, be alienated or
Thus, an easement is continuous if its use is, or may be, incessant without the mortgaged separately from the estate to which it forms part. In addition, the servitude can be
intervention of any act of man, like the easement of drainage; and it is discontinuous if it is availed of against every person who may subsequently acquire ownership of the estate
used at intervals and depends on the act of man, like the easement of right of way. A good subject to such encumbrance.
example of a continuous easement is the easement of light and view. On the other hand,
easement of right of way is an example of a discontinuous easement because its use is at Indivisibility
intervals and depends upon the acts of man; it can be exercised only if a man passes or puts
his feet over somebody else’s land. Easements are indivisible. As a consequence, even if the servient and dominant
estates are divided between two or more persons, the easement or the servitude continues to
Thus,it is the presence of physical or visual signs that classifies an easement into attach to the estates originally affected. In case of division of the servient estate into several
apparent or non-apparent. Thus, a road (which reveals a right of way) and a window (which parts, for example, all such parts, though divided, shall continue to bear the encumbrance. In
evidences a right to light and view) are apparent easements, while an easement of not case of division of the dominant estate into several parts, each and every part shall continue
building beyond a certain height is non-apparent. to enjoy the easement in its entirety and without any modification.

“Art. 616. Easements are also positive or negative.”

A positive easement is one which imposes upon the owner of the servient estate the
obligation of allowing something to be done on his property (servitutes in patendo); it is
negative when it prohibits the owner of the servient estate from doing something which he
could lawfully do if the easement did not exist (servitutes in non faciendo).
An example of a positive easement is the easement of right of way. An example of a
negative easement is an easement not to build higher (altius non tollendi).
Acquisition of Easements Acquisition through prescription

“Article 620. Continuous and apparent easements are acquired either by virtue of a “Article 621. In order to acquire by prescription the easements referred to in the
title or by prescription of ten years.” preceding article, 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
“Article 622. Continuous non-apparent easements, and discontinuous ones, whether the easement, commenced to exercise it upon the servient estate; and in negative easements,
apparent or not, may be acquired only by virtue of a title.” 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
The above articles provide for how easements may be acquired which is either by which would be lawful without the easement.”
prescription or by virtue of a title.
It is important to take note that in order for an easement to be acquired by virtue of Explanation
prescription it must be both continuous and apparent.
By title as a mode of acquiring servitude, the Civil Code refers to the “juridical act” In easements of light and view, it is confusing, perhaps to read again would help. If
which gives birth to the servitude, such as the law, donations, contracts and wills. Hence, the the window is constructed by the owner either on his wall or in his own property, in order for
act may either be inter vivos or mortis causa, may be onerous or gratuitous. the light to pass, such is not an easement, because there is no restriction yet. However, when
An easement of right of way may be apparent but it is not a continuous easement there is a demand by a notarial act, that such window not be closed, an easement exists,
because its use is at intervals and depends upon the acts of man. It can be exercised only if a which is a negative easement.
man passes or puts his feet over somebody else’s land. Hence, a right of way is not If the window, on the other hand, is opened in a party wall, and not in a wall the sole
acquirable by prescription. and exclusive property of the owner of the dominant tenement, the easement of lights is
positive and the 10-year period of prescription commences from the time of the opening of
the window. The reason for this is because no part owner can, without the consent of the
other, make in a party wall a window or opening of any kind, as provided in Article 667 of
the New Civil Code. Hence, the very fact of making such openings in such a wall might,
therefore, be the basis for the acquisition of a prescriptive title without the necessity of any
active opposition, because it always presupposes the express or implied consent of the other
part owner of the wall, which consent, in turn, implies the voluntary waiver of the right of
such part owner to oppose the making of such openings or windows in such a wall
The same rule will apply if the window is opened on the wall belonging to one’s
neighbor. The 10-year prescriptive period commences from the time of the opening of the
window. Stated otherwise, if anyone shall open a window in the wall of his neighbor, through
which the light enters his house, by this sole fact he shall acquire a prescriptive title to the
easement of light, if the time fixed by law (ten years) expires without opposition on the part
of the owner of the wall.
Proof of Easement For the acquisition of easement by title under Article 624 to apply,the following requisites
must concur:
“Art. 623. The absence of a document or proof showing the origin of an easement
which cannot be acquired by prescription may be cured by a deed of recognition by the (1) that there exist an apparent sign of servitude between two estates;
owner of the servient estate or by a final judgment.” (2) that at the time of the establishment of such sign, the ownership of the two estates
resides in one person;
The presumption is always against the existence of easements for property is always (3) that the sign of the easement be established by the owner of both estates because the
presumed free from any and all encumbrances. article will not apply when the easement is established by person different from the
If the easement is acquired through prescription, necessarily there is no document owner;
evidencing its existence and the same may only be established in a judicial proceeding (4) that the ownership over the two estates is later on divided, either by alienation or
through preponderance of evidence. partition; and
If the easement, however, is one which cannot be acquired through prescription and (5) that at the time of division of ownership, nothing is stated in the document of
there is no document evidencing the same, or such document is no longer available for alienation or partition contrary to the easement nor is the sign of the easement
whatever reason, the absence of such proof may be cured by a deed of recognition by the removed before the execution of the document. It will thus be seen that under Article
owner of the servient estate. 624 the existence of the apparent sign has for all legal purposes the same character
If the owner of the servient estate denies the existence of the easement or refuses to and effect as a title of acquisition of the easement.
execute the deed of recognition, the existence of the easement may nonetheless be
established in a judicial proceeding through preponderance of evidence. Furthermore, the
Statute of Frauds do not apply here.

Easement by apparent sign or Legal Presumption

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

The above provision also applies to co-owned properties and properties divided by
succession.
Rights and Obligations of the Dominant and Servient Estates Extent of the rights granted or its inclusions

Rights and obligations of the Dominant Estate “Article 625. Upon the establishment of an easement, all the rights necessary for its
use are considered granted.”
“Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever,
the use of the servitude. Nevertheless, if by reason of the place originally assigned, or of the “Article 627. The owner of the dominant estate may make, at his own expense, on
manner established for the use of the easement, the same should become very inconvenient to the servient estate any works necessary for the use and preservation of the servitude, but
the owner of the servient estate, or should prevent him from making any important works, without altering it or rendering it more burdensome.
repairs or improvements thereon, it may be changed at his expense, provided he offers For this purpose he shall notify the owner of the servient estate, and shall choose the
another place or manner equally convenient and in such a way that no injury is caused most convenient time and manner so as to cause the least inconvenience to the owner of the
thereby to the owner of the dominant estate or to those who may have a right to the use of the servient estate.”
easement.”
“Article 628. Should there be several dominant estates, the owners of all of them
“Art. 630. The owner of the servient estate retains the ownership of the portion on shall be obliged to contribute to the expenses referred to in the preceding article, in
which the easement is established, and may use the same in such a manner as not to affect the proportion to the benefits which each may derive from the work. Any one who does not
exercise of the easement.” wish to contribute may exempt himself by renouncing the easement for the benefit of the
others.
Article 630 recognizes the rule that ownership of the easement still remains with the If the owner of the servient estate should make use of the easement in any manner
owner, thus the holder of the easements merely has an incorporeal right over the property. whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated,
Article 629 provides for the rules when the owner of the servient estate may change saving an agreement to the contrary.”
the location of the easement which has the following requisites:
Article 629 provides for the accessory rights deemed included in the establishment of
(1) The place originally assigned or the manner established for the use of the easement an easement. For example, under article 641an easement for drawing waters carries with it
has become very inconvenient to the owner of the servient estate or it has prevent him the easement of right of way.
from making any important works, repairs or improvements thereon; As a consequence of such right, article 627 provides for the requisites when the
(2) the servient owner offers another place or another manner of use equally convenient owner of a dominant estate may make the necessary works in order to preserve the servitude.
(3) no injury is caused thereby to the owner of the dominant estate or to those who may Article 628 provides for the rules on the shouldering of expenses in the works
have a right to the use of the easement; and referred to under article 627.
(4) the expenses that will be incurred in the process shall be borne by the owner of the
servient estate. Limitations upon the right of the dominant estate

“Article 626. The owner of the dominant estate cannot use the easement except for
the benefit of the immovable originally contemplated. Neither can he exercise the easement
in any other manner than that previously established.”

Easements are inseparable.Article 626 provides that the limitation upon the dominant
estate that when an easement has been established in a general way, it cannot be used
otherwise except when the change of use does not make the easement more burdensome.
Extinguishment of Easements
Non-user
“Art. 631. Easements are extinguished:
Non-user, as a mode of extinguishment of easement, presupposes that the easement
(1) By merger in the same person of the ownership of the dominant and servient estates; was used but later abandoned. For easement to be extinguished under this mode, it is
(2) By non-user for ten years; with respect to discontinuous easements, this period shall necessary that the non-user must have lasted for a period of ten (10) years. For discontinuous
be computed from the day on which they ceased to be used; and, with respect to easements, the period shall start from the day on which they ceased to be used; and with
continuous easements, from the day on which an act contrary to the same took place; respect to continuous easements, from the day on which an act contrary to the same took
(3) When either or both of the estates fall into such condition that the easement cannot be place. In case of co-owned properties the use of one co-owner benefits the other co-owners.
used; but it shall revive if the subsequent condition of the estates or either of them
should again permit its use, unless when the use becomes possible, sufficient time for “Article 633. If the dominant estate belongs to several persons in common, the use of
prescription has elapsed, in accordance with the provisions of the preceding number; the easement by any one of them prevents prescription with respect to the others.”
(4) By the expiration of the term or the fulfillment of the condition, if the easement is
temporary or conditional; Impossibility of use
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient If the easement due to circumstances had become impossible to use, as a general rule,
estates.” it is merely suspended and hence can be used again if circumstance should allow it.
However, if the impossibility becomes permanent or if possible to revive but such is not
An easement may be extinguished through any of the following modes: (1) merger; (2) acted by the holder of the easement within 10 years, such will be considered extinguished.
non-user; (3) impossibility of use; (4) expiration of term; (5) fulfillment of condition; (6)
renunciation; and (7) redemption. In addition to the foregoing causes enumerated in Article Renunciation
631 of the New Civil Code, the following may be added: (1) annulment or rescission of title
constituting the easement; (2) termination of the right of the grantor; and (3) abandonment of The renunciation of the easement by the owner of the dominant estate must be
the servient estate; and (4) eminent domain. specific, clear and express. Hence, a tacit renunciation will not be sufficient.

Merger Redemption

The redemption being referred to in paragraph 6 of Article 631 of the New Civil Code
A real or praedial easement requires the existence of two distinct immovables
is the release of the servient estate from the servitude upon agreement of the owners of both
belonging to different owners. As a consequence, if there is a merger in the same person of
estates and upon payment by the owner of the servient estate of the corresponding
the ownership of the dominant and servient estates, the easement is extinguished. But if the
consideration to the owner of the dominant estate.
personal easement is established for the benefit of a community, the fact that one of the
members of the community acquires ownership of the servient estate will not result in a
genuine merger that will terminate the personal easement.
For a real or praedial easement to be extinguished by way of merger, the merger
must involve full ownership of both the dominant and servient estates It is not necessary,
however, that the merger takes place to the full extent of the property, it being suffi cient that
the merger takes place with regard to that part affected by the servitude or that part for the
benefit of which the servitude was established.
Chapter 2
LEGAL EASEMENTS
Easement of Public Use
Legal easements in general
“Article 638. The banks of rivers and streams, even in case they are of private
Easements Relating to Waters ownership, are subject throughout their entire length and within a zone of three meters along
their margins, to the easement of public use in the general interest of navigation, floatage,
Easements of Drainage of Waters fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject
“Article 637. Lower estates are obliged to receive the waters which naturally and to the easement of towpath for the exclusive service of river navigation and floatage.
without the intervention of man descend from the higher estates, as well as the stones or If it be necessary for such purpose to occupy lands of private ownership, the proper
earth which they carry with them. indemnity shall first be paid.”
The owner of the lower estate cannot construct works which will impede this
easement; neither can the owner of the higher estate make works which will increase the
burden.” However, no person shall be allowed to stay in this zone longer than what is
necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any
The owner of the higher estate shall also have the right to resort to artificial means kind.
for the purpose of draining waters from higher to lower estates but in the exercise of such
right, he is obliged: (1) to select the routes and methods of drainage that will cause the Easement for Drawing Waters
minimum damage to the lower lands; and (2) to pay just compensation to the owner of the
lower estate. “Article 640. Compulsory easements for drawing water or for watering animals
Since the enjoyment of this servitude does not depend upon acts of man because the can be imposed only for reasons of public use in favor of a town or village, after payment
descent of water from the higher to the lower estates is due to the force of gravity, this of the proper indemnity.”
easement must be classed among the continuous ones and it is subject to extinction by non- “Article 641. Easements for drawing water and for watering animals carry with them
user for a period of ten years computed from the day on which an act contrary to the the obligation of the owners of the servient estates to allow passage to persons and animals to
easement took place, such as building of dikes. the place where such easements are to be used, and the indemnity shall include this service.”

(1) Easement relating to waters (Arts. 637-648, NCC); Easement of Abutment of Dam
(2) Easement of right of way (Arts. 649-657, NCC);
(3) Easement of party wall (Arts. 658-666, NCC); “Article 639. Whenever for the diversion or taking of water from a river or brook, or
(4) Easement of light and view (Arts. 667-673, NCC); for the use of any other continuous or discontinuous stream, it should be necessary to build a
(5) Easement of drainage of buildings (Arts. 674-676, NCC); dam, and the person who is to construct it is not the owner of the banks, or lands which must
(6) Easement of distances (Arts. 677-681, NCC); support it, he may establish the easement of abutment of a dam, after payment of the proper
(7) Easement of nuisance (Arts. 682-683, NCC); and indemnity.”
(8) Easement of lateral and subjacent support (Arts. 684-687,
Easement of Aqueduct (water passing from land of others through pipe to your land) Nature of Easement

The following articles provides for the requisites regarding easement of aqueduct “Article 646. For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not be continuous, or its use
Article 642. Any person who may wish to use upon his own estate any water of depends upon the needs of the dominant estate, or upon a schedule of alternate days or
which he can dispose shall have the right to make it flow through the intervening estates, hours.”
with the obligation to indemnify their owners, as well as the owners of the lower estates upon
which the waters may filter or descend. Therefore, an easement of aqueduct may be acquired either by title or by prescription
of 10 years.
Article 643. One desiring to make use of the right granted in the preceding article is
obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is
intended;
(2) To show that the proposed right of way is the most convenient and the least onerous to
third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and
regulations. (558)

Article 644. The easement of aqueduct for private interest cannot be imposed on
buildings, courtyards, annexes, or couthouses, or on orchards or gardens already existing.

Right of the Owners of the Servient Estate (Aqueduct)

“Article 645. The easement of aqueduct does not prevent the owner of the servient
estate from closing or fencing it, or from building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary repairs and cleanings impossible.”

Take note that the owner of the servient estate, however, may not refuse the entry of
the holder of the easement on his estate if the purpose of such entry is the cleaning, repair or
replacement of the aqueduct or removal of any obstruction therefrom.
EASEMENT OF RIGHT OF WAY Inadequacy of the outlet to Public Highway

Article 649. The owner, or any person who by virtue of a real right may cultivate or Mere isolation is not enough, it is important that the outlet be inadequate although
use any immovable, which is surrounded by other immovables pertaining to other persons existing in order to be entitled to a compulsory right of way
and without adequate outlet to a public highway, is entitled to demand a right of way To be entitled to a compulsory right of way, it is necessary that the estate of the
through the neighboring estates, after payment of the proper indemnity. claimant of a right of way must be isolated and without adequate outlet to a public
Should this easement be established in such a manner that its use may be highway.The true standard for the grant of the legal right is “adequacy.” Hence, when there is
continuous for all the needs of the dominant estate, establishing a permanent passage, the already an existing adequate outlet from the dominant estate to a public highway, even if the
indemnity shall consist of the value of the land occupied and the amount of the damage said outlet, for one reason or another, be inconvenient, the need to open up another servitude
caused to the servient estate. is entirely unjustified.
In case the right of way is limited to the necessary passage for the cultivation of
the estate surrounded by others and for the gathering of its crops through the servient
estate without a permanent way, the indemnity shall consist in the payment of the At the point least prejudicial
damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the “Article 650. The easement of right of way shall be established at the point least
proprietor's own acts. prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the shortest.”
Voluntary and compulsory easements
The criterion of least prejudice to the servient estate must prevail over the criterion of
A voluntary easement of right of way is constituted by covenant and does not, shortest distance although this is a matter of judicial appreciation. In other words, where the
therefore, require that the dominant estate be isolated and without an adequate outlet to a easement may be established on any of several tenements surrounding the dominant estate,
public highway. If an estate, however, is so isolated and without an adequate outlet to a the one where the way is shortest and will cause the least damage should be chosen.
public highway, the grant of easement of right of way is compulsory and hence, legally However, if these two (2) circumstances do not concur in a single tenement, the way
demandable, subject to indemnity and the concurrence of other conditions enumerated under which will cause the least damage should be used, even if it will not be the shortest. This is
Articles 649 and 650 of the New Civil Code. the test

Isolation of the dominant estate

In order to entitle the owner of the dominant estate to demand for a compulsory right
of way, it is required that his estate must be “surrounded by other immovables pertaining to
other persons.” The estate, however, need not be totally landlocked as the isolation of the
dominant estate is also dependent on the particular need of the dominant owner. What is
important to consider is whether or not a right of way is necessary to fill a reasonable need
therefor by the owner.
Payment of Indemnity Width of the Easement

“Article 652. Whenever a piece of land acquired by sale, exchange or partition, “Article 651. The width of the easement of right of way shall be that which is
is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged sufficient for the needs of the dominant estate, and may accordingly be changed from time
to grant a right of way without indemnity. to time.”
In case of a simple donation, the donor shall be indemnified by the donee for the
establishment of the right of way.” “Article 657. Easements of the right of way for the passage of livestock known as
animal path, animal trail or any other, and those for watering places, resting places and
“Article 653. In the case of the preceding article, if it is the land of the grantor that animal folds, shall be governed by the ordinances and regulations relating thereto, and, in
becomes isolated, he may demand a right of way after paying a indemnity. However, the the absence thereof, by the usages and customs of the place.
donor shall not be liable for indemnity.” Without prejudice to rights legally acquired, the animal path shall not exceed in any
case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters.
Explanation Whenever it is necessary to establish a compulsory easement of the right of way or for a
watering place for animals, the provisions of this Section and those of articles 640 and 641
shall be observed. In this case the width shall not exceed 10 meters.”
The 2nd and 3rd paragraph of article 649 provides for the indemnity in such cases.
On the other hand, the above two articles provides the rules in case the easement is to The above articles provides for the width of the easements of right of way.
be exercised by sale, and the surrounding estates are owned by the same vendor, he shall be
obliged to grant a right of way without receiving indemnity from the buyer. As for the case of Extinguishment of Right of Way
a donation, the donor shall be indemnified by the donee for the easement while the donor is
not bound to pay such indemnity in case he is to the one to avail of the easement. “Article 655. If the right of way granted to a surrounded estate ceases to be
necessary because its owner has joined it to another abutting on a public road, the
owner of the servient estate may demand that the easement be extinguished, returning
what he may have received by way of indemnity. The interest on the indemnity shall
Who may demand the right of way be deemed to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving access to the
Under Article 649 of the New Civil Code, it is the owner, or any person who by isolated estate.
virtue of a real right may cultivate or use any immovable or any surrounded by other In both cases, the public highway must substantially meet the needs of the dominant
immovable pertaining to other persons, who is entitled to demand a right of way through the estate in order that the easement may be extinguished.”
neighboring estates. person who by virtue of a real right may cultivate or use any immovable.
While a usufructuary is entitled to demand a right of way pursuant to Article 649, a NOTE: Note, however, that the extinguishment of the right of way in the foregoing
mere lessee does not enjoy the same right. With respect to the latter, his action is against the manner does not take place ipso jure. The owner of the servient estate must ask for the
lessor who is bound to maintain him in the enjoyment of the property. release of his estate from the servitude upon the return of the indemnity he received.
Easement of Party Wall Right to use

“Article 659. The existence of an easement of party wall is presumed, unless there is “Art. 666. Every part-owner of a party wall may use it in proportion to the right he
a title, or exterior sign, or proof to the contrary: may have in the co-ownership, without interfering with the common and respective uses by
(1) In dividing walls of adjoining buildings up to the point of common elevation; the other co-owners.”
(2) In dividing walls of gardens or yards situated in cities, towns, or in rural
communities; Right to Increase Height of Party Wall
(3) In fences, walls and live hedges dividing rural lands.”
“Art. 664. Every owner may increase the height of the party wall, doing so at his own
“ Article 660. It is understood that there is an exterior sign, contrary to the easement expense and paying for any damage which may be caused by the work, even though such
of party wall: damage be temporary.”
(1) Whenever in the dividing wall of buildings there is a window or opening;
(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, Note: If the party wall cannot bear the increased height, the owner desiring to raise it
and on the other, it has similar conditions on the upper part, but the lower part shall be obliged to reconstruct it at his own expense, and, if for this purpose it be necessary to
slants or projects outward; make it thicker, he shall give the space required from his own land
(3) Whenever the entire wall is built within the boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of the binding beams, floors and
roof frame of one of the buildings, but not those of the others; Ownership in the increased height
(5) Whenever the dividing wall between courtyards, gardens, and tenements is
constructed in such a way that the coping sheds the water upon only one of the Art. 665. The other owners who have not contributed in giving increased height,
estates; depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein,
(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at by paying proportionally the value of the work at the time of the acquisition and of the land
certain intervals project from the surface on one side only, but not on the other; used for its increased thickness.
(7) Whenever lands inclosed by fences or live hedges adjoin others which are not
inclosed. The co-ownership is maintained up to the point where the original wall extended. But
with respect to the additional height, the same shall be exclusively owned by the part-owner
In all these cases, the ownership of the walls, fences or hedges shall be deemed to at whose instance the party wall was raised. As a consequence, the expenses in maintaining
belong exclusively to the owner of the property or tenement which has in its favor the the additional height, as well as the increase in expenses which may be necessary for the
presumption based on any one of these signs.” preservation of the party wall by reason of the greater height, shall be borne by him.
In article 665 which case, all shall bear the expenses of maintaining the additional
“Article 661. Ditches or drains opened between two estates are also presumed height in proportion to their respective interest in it.
as common to both, if there is no title or sign showing the contrary.
There is a sign contrary to the part-ownership whenever the earth or dirt removed to
open the ditch or to clean it is only on one side thereof, in which case the ownership of the
ditch shall belong exclusively to the owner of the land having this exterior sign in its favor.”
Repairs and Maintenance

“Art. 662. The cost of repairs and construction of party walls and the maintenance of
fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners
of the lands or tenements having the party wall in their favor, in proportion to the right of
each. Nevertheless, any owner may exempt himself from contributing to this charge by
renouncing his part-ownership, except when the party wall supports a building belonging to
him.”
“Art. 663. If the owner of a building, supported by a party wall desires to demolish
the building, he may also renounce his part-ownership of the wall, but the cost of all repairs
and work necessary to prevent any damage which the demolition may cause to the party wall,
on this occasion only, shall be borne by him.”
Easement Of Light And View Effect of Non-observance of distance

Making of opening in party wall Now, what is the effect of violation of the foregoing distance requirement? When
windows or balconies are opened in violation of the distance requirement in Article 670 of
“Art. 667. No part-owner may, without the consent of the others, open through the the Civil Code, the same may be ordered closed because they constitute unlawful openings.
party wall any window or aperture of any kind.” And as discussed in supra §114.2, the mere making of such opening does not result in the
running of the 10-year prescriptive period for the acquisition of an easement of light and
“Art. 668. The period of prescription for the acquisition of an easement of light and view. Since the easement is a negative one, the 10-year period begins to run only from the
view shall be counted: time of the formal prohibition mentioned in Articles 621 and 668 of the New Civil Code.

(1) From the time of the opening of the window, if it is through a party wall; or

(2) From the time of the formal prohibition upon the proprietor of the adjoining land Opening where distances are not observed
or tenement, if the window is through a wall on the dominant estate.”
“Article 669. When the distances in article 670 are not observed, the owner of a wall
which is not party wall, adjoining a tenement or piece of land belonging to another, can make
in it openings to admit light at the height of the ceiling joints or immediately under the
Observance of Distances ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating
imbedded in the wall and with a wire screen.
“Article 670. No windows, apertures, balconies, or other similar projections which
afford a direct view upon or towards an adjoining land or tenement can be made, without Nevertheless, the owner of the tenement or property adjoining the wall in which the
leaving a distance of two meters between the wall in which they are made and such openings are made can close them should he acquire part-ownership thereof, if there be no
contiguous property. stipulation to the contrary.

Neither can side or oblique views upon or towards such conterminous property He can also obstruct them by constructing a building on his land or by raising a wall
be had, unless there be a distance of sixty centimeters. thereon contiguous to that having such openings, unless an easement of light has been
acquired.”
The nonobservance of these distances does not give rise to prescription.”
“Article 671. The distance referred to in the preceding article shall be measured in
cases of direct views from the outer line of the wall when the openings do not project, from
the outer line of the latter when they do, and in cases of oblique view from the dividing line
between the two properties.”
Article 672. The provisions of article 670 are not applicable to buildings separated by
a public way or alley, which is not less than three meters wide, subject to special regulations
and local ordinances.”
EASEMENT OF DRAINAGE OF BUILDINGS Legal Easement of Drainage

“Art. 676. Whenever the yard or court of a house is surrounded by other houses, and
Defined it is not possible to give an outlet through the house itself to the rain water collected thereon,
the establishment of an easement of drainage can be demanded, giving an outlet to the water
The easement of drainage of buildings is the right to divert or empty the rain waters at the point of the contiguous lands or tenements where its egress may be easiest, and
from one’s own roof or shed to the neighbor’s estate either drop by drop or through conduits establishing a conduit for the drainage in such manner as to cause the least damage to the
servient estate, after payment of the property indemnity.”
Ownership of rain water
The above article provides for the requisites of legal easement of drainage. To wit:
Pursuant to the provisions of the Water Code of the Philippines, rain waters falling on
private lands shall belong to the State. However, any person who captures or collects water An easement of drainage may be demanded subject to compliance with the following
by means of cisterns, tanks or pools shall have exclusive control over such water and he shall requisites:
also have the right to dispose of the same. The owner of the land where the rain waters fall
may use the same even without securing a permit from the National Water Resources (1) The yard or court of a house must be surrounded by other houses (“the dominant
Council but only for domestic purposes. The obligation under rain water is provided under estate”) and it is not possible to give an outlet through the house itself to the rain
article 674 to wit: collected therefrom;
(2) The outlet to the water must be at the point of the contiguous lands or tenements (“the
“Article 674. The owner of a building shall be obliged to construct its roof or servient estate”) where its egress may be easiest;
covering in such manner that the rain water shall fall on his own land or on a street or public (3) The conduit for the drainage must be established in such manner as to cause the least
place, and not on the land of his neighbor, even though the adjacent land may belong to two damage to the servient estate; and
or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, (4) Proper indemnity must be paid to the owner of the servient estate.
the owner shall be obliged to collect the water in such a way as not to cause damage to the
adjacent land or tenement.”
Intermediate Distances and Works for Certain Constructions and Plantings

Distance to be observed in case of plantings

“Art. 679. No trees shall be planted near a tenement or piece of land belonging to
another except at the distance authorized by the ordinances or customs of the place, and, in
the absence thereof, at a distance of at least two meters from the dividing line of the estates if
tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are
planted. Every landowner shall have the right to demand that trees hereafter planted at a
shorter distance from his land or tenement be uprooted. The provisions of this article also
apply to trees which have grown spontaneously.”

The above article provides for the remedy in case of plantings either by the owner
himself or trees which have grown spontaneously where the distance as provided herein is
not observed.

Right to cut branches and roots

“Article 680. If the branches of any tree should extend over a neighboring estate,
tenement, garden or yard, the owner of the latter shall have the right to demand that they be
cut off insofar as they may spread over his property, and, if it be the roots of a neighboring
tree which should penetrate into the land of another, the latter may cut them off himself
within his property.”

Note that with respect to the roots of a neighboring tree which penetrated into the
land of another, the owner of the latter may himself cut off the roots found within his
property as compared to branches. The reason for the difference is that with respect to the
roots, the same belong to the owner of the land where it is found by reason of incorporation.
This right of the adjacent owner does not prescribe unless he has been, by a formal act,
prohibited by the owner of the tree from cutting off the roots of the tree, in which case, the
ten-year prescriptive period for the establishment of a negative easement will commence to
run.

Right to fruits naturally falling

“Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said land.”
Easement Against Nuisance Lateral and Subjacent Support

“Art. 682. Every building or piece of land is subject to the easement which prohibits “Art. 684. No proprietor shall make such excavations upon his land as to deprive any
the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, adjacent land or building of sufficient lateral or subjacent support.”
smoke, heat, dust, water, glare and other causes.”
“Art. 685. Any stipulation or testamentary provision allowing excavations that cause
“Art. 683. Subject to zoning, health, police and other laws and regulations, factories danger to an adjacent land or building shall be void.
and shops may be maintained provided the least possible annoyance is caused to the
neighborhood. “Art. 686. The legal easement of lateral and subjacent support is not only for
buildings standing at the time the excavations are made but also for constructions that may be
erected.”

“Art. 687. Any proprietor intending to make any excavation contemplated in the three
preceding articles shall notify all owners of adjacent lands.”

Concept

The right of lateral and subjacent support is the right to have land supported by the
adjoining land or the soil beneath. Each of two adjoining landowners is entitled to the support
of the other’s land. Support is lateral when the supported and the supporting lands are divided
by a vertical plane. Support is subjacent when the supported land is above and the supporting
land is beneath it.

Easement of Lateral and Subjacent Support

The right of lateral support ordinarily exists only with respect to the soil in its natural
condition, but our Civil Code expressly includes buildings in the protection of this easement.
In the words of the Code Commission, this kind of easement or servitude is so essential to the
stability of buildings.202 With this purpose in mind, the law prohibits any excavation upon
one’s land if the same will deprive any adjacent land or building of sufficient lateral or
subjacent support. In addition, the law prohibits any stipulation or testamentary provision
allowing such kind of excavation. Any such stipulation or testamentary provision is
expressly declared to be void. Note that the easement of lateral and subjacent support is a
negative one it is in the form of prohibition on the part of a landowner from making any
excavation that will deprive the adjacent land or building of sufficient lateral or subjacent
support. If the right of lateral and subjacent support is violated, the adjoining landowner is
entitled to seek injunctive relief, in addition to the right to recover damages.
Voluntary Easements Easement over co-owned property

Concept “Art. 691. In order to impose an easement on an undivided tenement, or piece of land,
the consent of all the co-owners shall be required. The consent given by some only, must be
As discussed beforehand an easement may either be compulsory or voluntary. It is held in abeyance until the last one of all the co-owners shall have expressed his conformity.
compulsory if it can be demanded by the claimant as a matter of right upon payment of the But the consent given by one of the co-owners separately from the others shall bind the
proper indemnity. If theclaimant is not entitled to demand for an easement as a matter of grantor and his successors not to prevent the exercise of the right granted.”
right because the requisites for legal easement are not present, the easement may only be
constituted upon the will of the owner of the servient estate in which case, the easement is
classified as voluntary. Note that only the owner of the property may constitute an easement Abandonment of Property
over a tenement because the creation of a servitude is a disposition of a part of the right of
ownership and only an owner can do that. “Art. 693. If the owner of the servient estate should have bound himself, upon the
establishment of the easement, to bear the cost of the work required for the use and
Easement in property held in usufruct preservation thereof, he may free himself from this obligation by renouncing his property to
the owner of the dominant estate”.
“Art. 689. The owner of a tenement or piece of land, the usufruct of which belongs to
another, may impose thereon, without the consent of the usufructuary, any servitudes which Comment
will not injure the right of usufruct.”
The owner of the servient estate need not renounce his ownership over the entire
The above article provides for the right of the owner to impose any servitudes in his property if the servitude affects only a part thereof in which case, he may abandon only that
property even if held in usufruct. If it is the usufructuary who will impose the same servitude part which is burdened with the servitude. Needless to say, if the servitude affects the entire
upon the property held in usufruct, it is not, in reality, an easement or servitude because it servient tenement, the abandonment must be total. Must the abandonment be reduced in
will not bind the owner or the property itself. In short, the right created is not a real one but a some form?
mere personal right which is binding against the usufructuary only. Hence, upon the Since the abandonment contemplated in Article 693 of the New Civil Code produces
termination of the usufruct the burden so imposed by the usufructuary likewise ceases. the transmission of ownership over a real property, the law (Article 1358, par. 1 of the New
Civil Code) requires that the same must appear in a public document.
NUISANCE Classification of Nuisance

“Article 694. A nuisance is any act, omission, establishment, business, condition of Article 695. Nuisance is either public or private. A public nuisance affects a
property, or anything else which: community or neighborhood or any considerable number of persons, although the extent
of the annoyance, danger or damage upon individuals may be unequal. A private
(1) Injures or endangers the health or safety of others; or nuisance is one that is not included in the foregoing definition.
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or Aside from the two class given in the above article, a third one may be added. A
(4) Obstructs or interferes with the free passage of any public highway or street, mixed nuisance is of the kind last described; that is, it is one which is both public and
or any body of water; or private in its effects, public because it injures many persons or all the community, and private
(5) Hinders or impairs the use of property. in that it also produces special injuries to private rights.

Definition
Private Nuisance Distinguished from Trespass
Aside from article 694 a nuisance could be “anything” — it could be an act or
omission of a person or simply an establishment, business or condition of a property or In principle, the boundary between trespass and nuisance is fixed by the nature of the
anything else — which interferes with the rights of a citizen, either in person, property, the interests these actions are said to protect: Trespass is said to protect the interest in possession
enjoyment of his property, or his comfort. of land, while nuisance is said to protect the use and enjoyment of land.

Nuisance and tort Requisites for recovery under private nuisance

Nuisance may be a class of tort. If a nuisance will result in injury to another person, As distinguished from trespass to land, a private nuisance has been defined as “a
the provisions of Articles 696, 697, 699, 703 and 705 allow recovery of damages. But in such substantial and unreasonable interference with the private use and enjoyment of another’s
cases, the source of obligation of the person responsible to pay damages is quasi delict or land.” Hence, the essence of a private nuisance claim is the protection of a property owner’s
tort. As explained by Judge Sangco, “a nuisance is a tort, governed by the rules on tort interest in the private use and enjoyment of his land.
generally, so that, as in the case of other torts, legal liability for a nuisance is predicated In order for a private nuisance suit to prosper, the plaintiff must be able to prove two
on an invasion of the plaintiff’s legal rights by an act not warranted by law, or from a neglect things:
of duty imposed by law, that results in damage to another. (1) that there was damage to the property; and
(2) the interference is either:
Distinguished from negligence (a) intentional and unreasonable; or
(b) or unintentional and otherwise negligent or reckless conduct; or
The two may be distinguished in that liability for negligence is based on want of a (c) resulting in abnormally dangerous activities in an inappropriate place.
proper care, while, ordinarily, a person who creates or maintains a nuisance is liable for the
resulting injury to others regardless of the degree of care or skill exercised to avoid such
injury. However, a nuisance may be and frequently is the consequence of negligence, or the
same acts or omissions which constitute negligence may give rise to a nuisance.
There must be damage Nuisance per se and Nuisance per accidens

Damage may be proved in one of two ways: The first is recognized as a nuisance under any and all circumstances, regardless of
location or surroundings, because it constitutes a direct menace to public health or safety.
(1) by proving physical damage to the property (otherwise known as “tangible The second is not a nuisance per se but may become a nuisance by reason of the
nuisance”); or circumstances of the location and surroundings or manner in which it is performed or
(2) by proving personal discomfort (loss of amenity) in the claimant’s use of the premises operated, and its existence being a question of fact, it cannot be abated without due hearing
(otherwise known as “intangible nuisance”). thereon in a tribunal authorized to decide whether such a thing does in law constitute a
nuisance.
Substantial, Intentional and Unreasonable Interference

After proving that there is damage to the property, the plaintiff is likewise required to
prove that the interference with the private use and enjoyment of another’s land is either:
(a) intentional and unreasonable; or
(b) or unintentional and otherwise negligent or reckless conduct; or
(c) resulting in abnormally dangerous activities in an inappropriate place

Interference is intentional when the actor knows or should know that the conduct is
causing a substantial and unreasonable interference.

The unreasonableness of an intentional interference must be determined by a


balancing of the landowners’ interests. Interference is unreasonable when the gravity of the
harm outweighs the social value of the activity alleged to cause the harm. In other words,
there is only a nuisance if the annoyance outweighs the utility to the actor and to society as a
whole. This is known as the doctrine of comparative utility or balancing of utilities
doctrine.
In determining what is reasonable interference, the following factors are generally
considered:

(1) the locality of the plaintiff because inhabitants of industrial areas must expect
more interference;
(2) the extent of the interference (even in industrial areas, there are limits);
(3) and the time of day (a continuous loud noise made during the middle of the night,
for example, is considered less acceptable than the same during the day.
Provisional Remedies on nuisance

Art. 699. The remedies against a public nuisance are:

(1) A prosecution under the Penal Code or any local ordinance; or


(2) A civil action; or
(3) Abatement, without judicial proceedings.

Art. 701. If a civil action is brought by reason of the maintenance of a public


nuisance, such action shall be commenced by the city or municipal mayor.

Art. 703. A private person may file an action on account of a public nuisance, if it is
specially injurious to himself.

Art. 704. Any private person may abate a public nuisance which is specially injurious
to him by removing, or if necessary, by destroying the thing which constitutes the same,
without committing a breach of the peace, or doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate
the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with
the assistance of the local police; and
(4) That the value of the destruction does not exceed Three thousand
pesos (P3,000).

Art. 705. The remedies against a private nuisance are:


(1) A civil action; or
(2) Abatement, without judicial proceedings.

Art. 706. Any person injured by a private nuisance may abate it by


removing, or if necessary by destroying the thing which constitutes the
nuisance, without committing a breach of the peace or doing unnecessary
injury. However, it is indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private person be followed.

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