Property 2016-2017 | Atty.

Gravador
PROPERTY FINALS TRANSCRIPT 1. Dominant estate is surrounded by other immovables and has no adequate outlet to a
public highway;
September 13, 2016 (FIRST HOUR)
If you are not surrounded by other immovables or naa kay lain kaagian, no right of way.
Specific Types of Easement
2. After payment of the proper indemnity;
I. Legal Easement/Compulsory Easement - regardless of whether the adjacent owners can
agree or not, there is still an easement (pinugsanay, wa kay mahimo), i.e. right of way, How do you comply with this na wa paman ka kahibalo pila ibayad?
aqueduct.
In Costabella Corporation case, the SC said that just a mere allegation in the complaint that you
Types: are WILLING, ABLE, and READY TO PAY is already compliance with this requisite.

1. Easement relating to waters – i.e, natural drainage, drainage of buildings 3. Isolation was not due to acts of the proprietor of the dominant estate;

i. Natural Drainage Dili nimo sala nga wa kay agianan. If naa unta kay agianan but imo gi fence kay landscape,
imong sala. You cannot claim a right of way.
Article 637. Lower estates are obliged to receive waters, which naturally and without the
intervention of man descend from the higher estates… (wala kayo niya gi expound) 4. Right of way claimed is at the point least prejudicial to the servient estate; and
insofar as consistent with this rule, where the distance from the dominant estate to a
ii. Drainage of buildings (owner of buildings obliged to construct roof so that rain water public highway may be the shortest.
shall fall on his own land)
iii. Easement on riparian banks for navigation, floatage, etc. If mag agi2 ka sa imong FJ cruiser diha nya imong silingan tawon tagaan ka og increase sa
iv. Easement of a dam imong right of way, mag tindog nalang matulog kay perteng gamaya sa iyang lote, that’s
v. Esement for drawing water or for watering animals already a violation of this criterion.
vi. Easement of aqueduct (a person who may use water upon his estate shall have right
to make it flow through intervening estates) Ideally, it should be the shortest distance because the assumption is that it is least prejudicial.
However, it doesn’t follow in all cases. If the shortest distance would require the destruction of
 Easement of aqueduct – the right to make water flow through or under intervening the house, compared to the long distance nga saging ray putlon, katong long distance ang
or lower estates. pilion kay LEAST PREJUDICE CRITERION man mu prevail over SHORT DISTANCE.

vii. Easement for construction of stop lock or sluice gate Quimen vs CA: When the two circumstances (meaning, the shortest and least prejudicial) do
not concur, the way where damage will be least shall be used even if not the shortest way.
2. Easement of right of way
As much as possible, walay gub.on nga kahoy, walay gub.on nga structure. Bahala nag
If your right of way arises from an agreement, nya kada agi pabayron ka, that is VOLUNTARY magliko2, basta walay gub.on.
EASEMENT. Here, pinugsanay ni type of easement (COMPULSORY EASEMENT)
Mintanilla vs Abangan (??): If in the establishment of the right of way, the house will be
Requisites (memorize): destroyed, the least prejudice criterion will be applied.

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Note: If any of the requisites is not present, then YOU ARE NOT ENTITLED TO AN EASEMENT OF
RIGHT OF WAY. In other words, if the case you are handling is compulsory easement of right of
way, the allegations in your complaint should jive with the requisites.
Article 651. The width of the easement of right of way shall be that which is sufficient for the
needs of the dominant estate, and may accordingly be changed from time to time.
Except for animal path and animal trail, which shall not exceed 75 meters and 37.5 meters,
respectively, (as provided under Article 657), the normal right of way would be dependent on
the needs of the dominant estate.
In Encarnacion case, the petitioner was into plant nursery business. Initially, pushcart ra ila
gamit to tow the plants to the national highway. But the business grew and so kailangan na
siyag jeepney. So, niingon cya sa iyang silingan mangayo siyag increase sa right of way but di
man muhatag ang silingan. Nag kasohay sila. SC allowed the increase because of Art. 651, that
the width of the right of way shall depend on the needs of the dominant estate, and may be
adjusted from time to time. Here, walay prejudice kay the owner of the dominant estate
expressed nga iyang i.exchange iyang lot. SC described the act of the owner of the servient
estate in refusing to accede to the increase as sheer pigheadedness.
Article 652. Whenever a piece of land acquired by sale, exchange or partition, is surrounded by
other estates of the vendor, exchange, or co-owner, he shall be oblighed to grant a right of way
without indemnity.
For example, palit ka og yuta nga barato but ang seller is the owner of the surrounding lots. He
is obliged to give you a right of way, FREE OF CHARGE. Di cya kaingon nga tagaan kag right of
way basta i.adjust ang price. No. He is bound by law.
Note: Mere convenience to the dominant estate is not determinative for the grant of the
compulsory easement of right of way.
Ramos vs Gatchalian Realty, Inc: A subdivision resident wanted to agi sa road provided by the
neighboring subdivision kay paved man. Ang yuta sa iyang subdivision di man paved, bumpy
man. SC said this cannot be a case for compulsory easement kay dili man ang inconvenience
nimo ang criterion diri. For as long as maagian bahala inconvenient para nimo, that is still and
adequate outlet. The fact that the said lot is still undeveloped and causes inconvenience to the
petitioner when he uses it to reach the public highway does not bring him within the ambit of
the legal requisite.
Property 2016-2017 | Atty. Gravador
Costabella Corporation case: It was established during the trial that there was another outlet,
although inconvenient.
When we decide what is an adequate outlet, it must be something that is passable. In
Costabella case, SC lifted the observation by Manresa. An estate bordering a public road
through an inaccessible slope of precipice is isolated. For example, ikaw tag.iya kag balay, diha
sa ilawm imong balay dapit sa highway. Nya imong silingan nay agianan ana nga paved. Gusto
ka muagi didto kay imong agianan sloped man. Nya ingnon ka sa imong silingan “ngano diri
man jud ka muagi nga naa man kay agianan?” Nya unsaon mana nimo pag agi, mag kamang ka
padung sa highway? DILI NA PWEDE. That’s still an inadequate outlet.
Compensation requirement in compulsory easement of right of way – dominant owner ka but
it doesn’t mean that you will be using a part of the servient estate for free.
Article 649. xxx the indemnity shall consist of the value of the land occupied and the amount of
the damage caused to the servient estate
So mura rani siyay imong gipalit. So, would this not somehow go against the principle that in
easement there is no transfer of ownership? No. Because if di na necessary ang easement, the
servient owner is bound to return the money. Mura kag ning bond while the easement
continues to exist. Nya kung di na kailangan ang easement, iuli pud to niya imong gibayad.
Unsa may compensation while you were using it? Interest. So ang iuli ra kay minus the legal
interest (6%).
Aerial right of way – when your land is traversed by transmission lines.
SEPTEMBER 13 (SECOND HOUR)
Please refer to the Power Point slides of Atty. Gravador for the illustrations/examples
EASEMENT OF PARTY WALL
Another type of easement is what is known as easement of party wall. What is a party wall? It’s
just a wall. The wall serves as the dividing line between two estates. Not all walls in the dividing
line is a party wall, especially a firewall just because it is in the middle of your estate and
another’s estate. It is not necessarily a party wall, especially when the same is located entirely
on your property (In this case it is just your wall because a party wall presupposes that there
are two owners). Why is this an easement? Is there an encumbrance here? There is an
encumbrance because when one of the owners will use it as a support for a beam in his house
or when one of the owners will make an opening (window) in that party wall.
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 Property 2016-2017 | Atty. Gravador
The law provides for certain presumptions in the existence of a party wall. Every co-owner of a
party wall may use it in proportion to the right that he may have in the co-ownership (1/2). No September 19, 2016
co-owner may, without the consent of the others, open to the party wall any window.
However, if your co-adjacent owner makes an opening on a party wall, the prescriptive period 1. Easement of View
will immediately run right at the time of the opening. So, if you are the affected party, dapat
As a property owner you can build up to the boundary line but if you choose to build
muobject ka by filing the case to compel the closure of the party wall, otherwise (after 10
up to the boundary line you must not make any opening. That is a restriction on your right of
years) it may be said that the other owner already acquired easement of light and view.
ownership. The law prohibits you from making an opening when you build up to the boundary
line. If you want to make regular windows on your property you must observe the setback rule
EASEMENT OF LIGHT AND VIEW
which is 2 meters from the boundary line.
What is the essence of easement of light and view? It is the right to make an opening (The
The 2-meter requirement for windows also applies to terrace with railings. You must
adjacent owner cannot build structures that may block your light and view). The adjacent
observe the two meter set back rule. You cannot argue that it is not a window. You don’t have
owner may still construct pero dapat muset back sya. However, if you already have easement
to observe the setback rule if it is a terrace without railing. Why? What is prohibited is the
of light, it doesn’t follow that you already have easement of view. If you are the property
right to have direct view.
owner, you can actually use your property up to the boundary line, provided that you do not
Even if the opening is illegal meaning it did not observe the rule. By the way the
construct a window, terrace, and the like. If you want a terrace, muatras kag 2 meters. But
remedy is to file a case of mandatory injunction to close the illegal opening. The law further
what if wa ka niatras? Di nlang gud ka paopenon bsag gamay ra nga opening? There is a law
says that if you for example that made the opening, even if the opening has been there for
that if the distances are not observed (if gigamit nimo imo property up to the boundary), you
several years you cannot claim prescription because of non-observance of setback rule.
are given the right to make an opening with a size of 30 square centimeters .The only purpose
From the perspective of the adjacent owner, the right to demand to close the
for this rule is to admit light and only applicable if di ka mucomply sa 2 meters nga atras (Effect
opening will prescribe. That is an obligation imposed by law. If you are the one asking for it to
of non-observance: does not give rise to prescription). Thus, kung mucomply ka to atras for 2
be enforced, you must enforce within 10 years. However, it doesn’t mean that the one who
meters, you can build a full window, otherwise (if d ka mucomply) your adjacent owner may
made that illegal opening has acquired easement. You still have remedy but it is not to demand
compel you to close (by filing a mandatory injunction within the 10-year period) the opening
closure but it is to build a higher structure to block the opening. (Atty. Showed several pictures
which is more than 30 square meters. This is a continuous and apparent easement.
of violation of the 2-meter setback rule.)
IMPORTANT POINT (OPINION OF PARAS):
TAKE NOTE: The right to demand closure may prescribe but it does not mean the violator has
We have been talking about certain types of easement which may be acquired by prescription
acquired easement of view.
and I said that only those that are continuous and apparent. But at the same time, we
mentioned about negative easement ad we even said that the reckoning point in computing
Exception: Limited opening may be made but the purpose is to admit light not viewing.
the period of prescription is from the time that the notarial prohibition has been served. Take
note that kaning prohibition, this is something nga which is not apparent. When you prohibit
2. Easement of Drainage
somebody that is not apparent dba? But why is it nga pwde man ka makaacquire by
a. When you construct a roof make sure the rainwater falls in your land;
prescription? According to Paras, a notarial prohibition makes apparent what is really non-
apparent. b. The water collected will not cause damage to adjacent land; and

NOTARIAL PROHIBITION c. Surrounded by other houses and no possibility of outlet, establishment of

What is meant by notarial prohibition? It’s not just a simple letter. It must be duly notarized drainage may be demanded.
(Dpat naay intervention of the notary public). Otherwise, if it is not notarized, the 10-year
3. Easement of intermediate distances
prescriptive period will not start to run. What should be the essence or the content of the
notarial prohibition? Even a one paragraph statement stating that “You are prohibited from Distances observed, if you plant big trees for example you need to observe proper
constructing a building this size bla bla bla” will do. distance;

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If you have a mangrove plantation for example, it would serve you well if you check with
your municipality if you have an ordinance since they might order to cut down the mangroves
if you do not observe the ordinance.
Branches extending over your property – demand first before cutting. There is a
possibility of theft or malicious mischief.
In my case I saw the cut branches were gathered in his land so I photographed it and I
formulated theory that he was guilty of theft and he was convicted he was guilty of 5,000. We
had a hearing in Catmon.
TAKE NOTE: Do not cut without demand but if roots protrude in your property then you may
cut if off
4. Easement against Nuisance (to be discussed later)
There are some civil law commentators who do not agree that this shall be included under
easement
This is negative easement. It could not be said that you are doing something that can be
lawfully done. I remember when I was still a law student I passed by a dried pineapple factory.
Every 9pm they discharge their waste. Perting bahoa. Pero ang finished product perting lamia
pud. Murag piggery ba. Suwayi class. Daut jud nang ilung nimu.
7.
5. Easement against Lateral and Adjacent Support
Prohibition on excavation upon a person’s land. As to deprive any adjacent land or building
of sufficient lateral or adjacent support. If there is excavation, there is a danger that your
property may cave in so you may ask it to be stopped based on this article of the civil code.
CASE: Margarita Castro vs Monsod
Whether or not this type of easement needs to be annotated in the title.
ISSUE: If it is not annotated in the title, is it not enforceable?
RULING: It is not necessary because this is a right given to the owner and an obligation
imposed upon another owner by law. Hence, this does not have to be annotated to be
enforceable.
Take note of this case as well as your land titles on annotation of adverse claim.
6. Voluntary easement
These are easements which arise from contract. When you say voluntary easement as
opposed to legal easement. In voluntary easement there is no need to observe the essential
requisites.
Property 2016-2017 | Atty. Gravador
For example, Easement of right of way, you will notice in Art. 649, the requisite is very
strict. If you file for compulsory easement, you have to prove all the requisites. In voluntary
easement, you will forget about the requisites in Article 649 because this is a product of
agreement or by voluntary act by servient owner.
CASE: Commercial vs Chung (take note)
Naa namay laing agianan. Niana na ang servient nga extinguish na kay naa nay laing
agianan. That argument will hold true if that is legal easement. If it arose from contract then
the mode to extinguish is any of the modes of extinguishment of contract (i.e payment,
merger, recission, etc)
CASE: Nova vs Velasco
An easement which is partly voluntary and partly legal. Initially it was an agreement.
When the agreement expired, it became compulsory since there is no other way into the
property.
In the case that I handled, disputed pa ang easement. Ako client pataka pag sturya
nga naa daw syay easement. Pataka sturya naa daw 4 kinds of easement daw. Iya d.i pasabot is
4 contracts diay from which easement arose. In the four documents there was nothing there
about right of way constituted over the lot owned by the defendant so this cannot be voluntary
easement. That was the complaint. It is not voluntary because there is no agreement. The
court said there was no clear legal right because it is not in the document.
Easement over Co-owned Property
This is an Act of alteration so all co-owners must consent. It is not necessarily void because
while the consent of the other co-owners are still being secured, it may be suspended. Consent
given by one of the co-owners separately from the other already binds him and his successors.
CASE: Unisource (read full text)
ISSUE: What is the effect if the easement is not registered
RULING: If the easement is not registered on the servient estate there are some decisions to
the effect that if the servient owner will convey it and there is no annotation in his title that it
is subject to an easement then there will be no easement. Take note: this is for registration in
the title of the servient estate.
What about if in the dominant estates it is not annotated? Is the non-registration of
the easement in the title fatal to the cause? SC said that it is non-registration in the servient
estate that matter not in the dominant. Unsa may gamit ana if naas title sa dominant. Adtu nas
title sa servient estate. The purpose is in case there is transfer of ownership in the servient
estate, it will bound the subsequent transferee. Di sya kaingnung wa ko kabaw ana kay
annotated man.
Although in some cases it is inconsequential because even if it is not annotated,
remember that it is inseparable to the estate to which it is attached. Furthermore, easement
can be acquired not only via title but also via the existence of apparent sign. (EXAMMABLE)
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Nuisance
This is defined as any act or omission, failure to act, establishment, a business, a condition of
property (i.e. tree which is about to fall), or anything else which endangers the health or safety
of others.
Ex: Videoke, billiard, maintaining of poultry and piggery, muffler.
Any act which annoys or offends the senses.
Morality – hubu hubu. That is why prostitution is an example among the notable example of
nuisance per se. Meaning nuisance everywhere because we do not have any red light district.
SEPT 20 (first part)
NUISANCE
Okay, let us now go on the subject about nuisance. As I have mentioned, nuisance should not
be a topic under easement because this is basically a negative easement if we will insist on
considering it as an easement. But this cannot qualify as an easement because a negative
easement has been defined to be an encumbrance or a limitation imposed upon a property
owner not to do things which he could have lawfully done If not for the easement. If you are a
maintainer of a nuisance, it could not be said that you are doing something lawful. Nuisance,
let’s separate this subject from the rest.
NUISANCE has been defined as any:
Act,
Omission- failure to act
Establishment- can be a building, a statute, or can even be a condition of a property for
example you have a property where there is stagnant water
or anything else which:
(1) Injures or endangers the health or safety of others;
(2) Annoys or offends the senses; (excluding common sense ha-ha, sir) HAHAHA. Example of
sense of sight kay kanang mga roofing materials gani na glaring kaayo. An example of sense of
smell well kung imo jud basahun ang balaod class kay maski ang kabaho sa kili-kili kay mu
qualify as a nuisance kay anything man na mu annoy sa senses daw. Unsaon man na pag abate?
How do you deal with that without offending the person? Kanang imo ipa feel good ra gani siya
pero at the same time you can achieve your purpose. Hahaha. Sense of hearing- jarring noise
for example a chainsaw.
(3) Shocks, defies or disregards decency or morality; (for example- prostitution house, a
nuisance per se. being such, can be abated without a court order kay per se man. The violator
cannot argue about due process, granting that it is really a nuisance per se.
(4) Obstructs or interferes with the free passage of any public highway or street (pariha anang
nag baligya ug butong, mga street vendors, or kanang basketball court sa streets. Pero we are a
Property 2016-2017 | Atty. Gravador
society of tolerable people. Maynalang na kaysa mag adik-adik diba? Hahaha), or any body of
water (constructions in foreshore lands or along river banks); or
(5) Hinders or impairs the use of property.
What’s the remedy or the relief available if you are complaining this nuisance?
It can either be PREVENTIVE (abatement of a nuisance) or REACTIVE (presupposes that you
already suffered damages as a result of the nuisance)
Nuisance is a tort because legal liability for a nuisance is predicated on an invasion of the
plaintiff’s legal rights by an act not warranted by law, or from a neglect of duty imposed by law.
But nuisance is NOT negligence. In other words, you can still be held liable for maintaining a
nuisance even if there is no negligence.
Nuisance can be classified as a PUBLIC NUISANCE or a PRIVATE NUISANCE. If public it affects a
community or a group, in your residence for example there is a big piggery or poultry house
that affects the whole sitio or municipality.
Why do we have to know whether it is private or public? Because depending whether private
or public, the issue of WHO MAY AVAIL OR WHO MAY COMMENCE THE APPROPRIATE ACTION
TO ABATE THE NUISSANCE will be raised. If public- only the mayor (general rule) exception- if
the nuisance is specially injurious to you, you may avail. Kanang mas dako ang epekto nimo-
kung ikaw man tuas duol.
A private nuisance is one that is not included in the foregoing definition. Kanang ikaw rajud
intawn.
Nuisance may also be classified as:
NUISANCE PER SE- nuisance at all times- house of prostitution, gambling houses except pagcor.
Bisan pa nay namatyan nya mag tong-its mu, nuisance na! maski mu ingon ka na culture di na
excuse! nuisance gihapun na! pero kani atung palibut class, di ni nato ma solve by applying the
law kay kung istrictuhon ni, ma tukhang ta ani! HAHAHAHAHA
NUISANCE PER ACCIDENS- nuisance only under or because of certain circumstances.
Identifying whether per se or accidens is an issue because we have to determine the necessity
of getting a prior court order first before we abate it. If nuisance per se- NO NEED OF A COURT
ORDER.
When we sa ‘abate’, how do we do it? For example naa nay court order nya writ of execution.
Ang problema ga libog ang sheriff how to abate. Basta abate = stop. It depends unsa i.abate.
Who is liable for nuisance?
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 Owner, successive owner, or possessor of property who fails or refuses to abate a
nuisance started by a former owner. Aside from abatement as a remedy, he may also
be held liable for damages.
Okay, let’s go to remedies.
If it’s a public nuisance,
1.) even if prosecution under the penal code may be a remedy. The question is, what are the
possible crimes that you can think of which will abate the nuisance? Alarms and scandals,
malicious mischief
2.) Civil action- injuction
3.) abatement without judicial proceeding- if nuisance per se
The basis for the exercise of abatement of nuisance is of course, police power, especially if
public nuisance. Police power is inherent power under the constitution with regard to the
state. But with regard to LGUs as represented by the local chief executive, that is not inherent
power. There must be a formal gesture of his right in the form of a provison in the local
government code under the general welfare clause.
If private nuisance,
1.) The civil action should be commenced by the provincial or city mayor but regard to a
person, file I themselves especially if injurious to him
2.) abatement without judicial proceeding- strictly speaking, you yourself may avail it. Pwede
ka! But of course there is a danger if you take the law into your own hands. The rule say that
the one who will actually avail is the district health officer. But of course there are nuisance
that has nothing to do with health issue, so i.interpret pud na in a reasonable manner.
So there is such a thing as ATTRACTIVE NUISANCE, ang possible victim ani kay a child. There are
dangerous instrumentalities or appliances which are likely to attract children at play. Even if
technically the child is a trespasser. Example, ikaw in your property ga butang kag mga swing,
seesaw. Be careful if magbutang ka mga in ana kay if nay bata na ma disgrasya ana you will be
held liable for maintaining an attractive nuisance.
Nuisance
Doctrine of Attractive Nuisance
Hidalgo Enterprise Inc. v. Guillermo Balandan
This is a case where the owner of an establishment had a pool of water inside his premises. So
this is what happened, ni sulod ang bata then ni lumos ang bata. Pagka patay sa bata, gi kiha
ang owner for damages ang owner of the pool of water. Allegedly on the ground that he is a
Property 2016-2017 | Atty. Gravador
detainer of an attractive nuisance. Attractive because it attracts children. SC: it is not an
attractive nuisance because basta pool of water lang they are merely a beautification of
nature, sama ra na sa dagat. Nga naa siay coherent risk. So kung ma lumos ka ana, kinsay ma
blame ana? Ang parents. Way lain ma blame ana, duplication of nature ra ana. Pero lahi ang
story kung naay water pool. So for it be an attractive nuisance, it has to have an artificial
attraction.
Remedies for Abatement, Abatement without Judicial Proceedings, Remedies against a
Private Nuisance
The principle there is can it be abated without any court order? In solving this issue, you have
to determine first if the nuisance is a nuisance per se or a nuisance per accidens.
Estate of Gregoria Francisco Et. Al. v. CA
This is a structure known as a concept building. So ang mayor iyang gi abate without a court
order. Reklamo ang owner: the mayor committed an illegal act, he abated the nuisance per
accidens without a court order. The SC agreed with the business man that the storage of copra
in the building is a legitimate business. So if it’s a nuisance per accidens it can be abated but
only through securing a court order first.
Parayno v. Jovellanos
This is a gasoline station which was further closed because allegedly it violates the zoning code
of the municipality. The problem is the order of closure was contained in a mere Sangguniang
resolution. SC: Cannot be. Operating a gasoline station is a legitimate business. The owner
must first be given a chance to dispute the stance of the municipality that it is a nuisance. So
with no court order, it is an illegal abatement.
Lucena Grand Termina Inc. v. Jac Liner
Ordinance prohibiting the bus-jeepney terminal. There is no problem on the ordinance. But if
you abate it on the basis of that ordinance, that is where the problem lies because this
business is not a nuisance per se but a nuisance per accidens.
All the cases involve the principle that if it is a nuisance per accidens, a court order must be
first secured.
Aquino v. Municipality of Malay, Aklan
However, it is a different sort in this case. This is a hotel structure which was built on a no build
zone in Boracay pero gipadayon ug construct without a building permit. Kung walay building
permit class, then that is an illegal construction. Permit first before build. So the mayor ordered
the demolition of the building on the strength of the ordinance declaring that there shall be no
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construction on the no build zone. There was an order of demolition with no court order. Nag
reklamo ang owner: my building is not a nuisance per se, this is a nuisance per accidens so, Mr.
Mayor, secure first a court order before you order a demolition. Now on that issue, is the
building owner correct? The building owner is correct. But does it follow that it cannot be
ordered demolished without a court order? Diha na sayop ang owner because wala niya gi
resolve in the light of the Civil Code, iyang gi resolve on the light of the Local Government Code
which states under Sec 444 nga ang mayor can demolish an illegal structure. And when you say
illegal structure, those are structures without a building permit.
Registry of Property & Modes of Acquiring Ownership
Art 712 Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.
When you say modes of acquiring ownership class, this answers the question on how did you
become the owner of a thing or a right. So there are only seven modes of ownership
recognized by the Civil Code These are classified as original modes of acquiring ownership and
derivative modes of acquiring ownership. Original meaning wa kay predecessor ani. Occupation
is a mode of acquiring ownership. But take note, the occupation mentioned in Art 712 is not
the occupation as an element of possession. I’ll make that clear when I discuss about
possession. The occupation here has a legal meaning, the occupation here as an element of
possession should be taken in its literal sense. Intellectual creation is also a mode of acquiring
ownership. This happens when you are an author of a thing or a composer. Ownership and
other real rights can be acquired or transmitted by law. Then there is donation which I will
discuss further. Then in consequence of a contract, tradition. Then last is prescription.
You will notice here that obtaining a certificate of title is not a mode of acquiring ownership, it
merely confirms ownership. Kung i.question imong ownership sa yuta, honored by a COT in
your name, as a lawyer dili nga diha ra ka kutob. If we talk about a parcel of land, not all modes
of acquiring ownership is the applicable mode. So unsay possible mode ani, donation? “Ngnanu
tag iya ka ana?” “It was donated to me inter vivos or mortis causa. It was inherited by me
through a last will and testament through succession. Or it was sold to me through a Deed of
Absolute Sale duly notarized.” Remember class, execution in a public document and ___
thereof is a transfer of ownership. That is why I have my COT to confirm my ownership
acquired through any of the means of acquiring ownership. So these are the modes ha?
Property 2016-2017 | Atty. Gravador
Law can also be a mode of acquiring ownership. When you say that law is a mode of acquiring
ownership, what we basically mean is that there is a provision of law that says that you are the
owner of the thing. Example, fruits naturally falling on your land and coming from a tree that
does not belong to you. The fruits belongs to you. Tagak, adto sa imong yuta, imoha to.
Because naay balaod nga specific man. Changes in the course of river- kinsa man nag ingon nga
if your land is traversed by the new river course, you will own the old river bed? It’s the Civil
Code. Although this is under accession, this is an example of a law vesting the right of
ownership. So if you say law, it’s because the provision of law says so.
Occupation
What may be the object of occupation? In other words, unsay ma acquire by ownership?
Art 713 Things appropriable by nature which are without an owner, such as animals that are
object of hunting and fishing, hidden treasure and abandoned movables, are acquire by
occupation.
Abandoned movables- for example, you found a lost movable. What is the procedure? Send a
notice to the mayor, mayor makes an announcement, public auction, etc… So posible ang lost
movable as an object of occupation.
Art 714 The ownership of a piece of land cannot be acquired by occupation.
One thing here in occupation is that a piece of land cannot be acquired through occupation
even when there is no known private owner. I said “no known private owner” because if there
is no known private owner, the State is the owner pursuant to the Regalian Doctrine. Well that
appears to be settled. How about when the piece of land has a known owner then the owner
died with no heirs. Can you acquire ownership through occupation? Well I know ang State may
institute estate proceedings, the fact that the State can institute estate proceeding
presupposes that the Sate is the automatic owner so what if wa naka una ang State? Obviously
you cannot apply the Regalian Doctrine here because there is no legal basis that if the land has
no original owner then it reverts back to the State. Regalian Doctrine mu apply only kung walay
known owner.
1. DONATION ( TITLE III, BOOK III):
a. Donation is an act of liberality, whereby there is a disposal in a gratuitous
manner of a thing or right in favor of another who must expressly accept it.
i. Liberality is a valid consideration in itself. It does not have to
always have a value.
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 Property 2016-2017 | Atty. Gravador
ii. He must expressly accept it. No donation if the acceptance is not subject. In donation it is needed to be
made known to donor during lifetime or before donor is simultaneous. No delivery no donation.
incapacitated. Donor must know the acceptance.
2. Movable exceeds 5k – required to be made in writing.
1. Remember I discussed a case when we were on the Not needed to be public document. It doesn’t even say
topic of property in public dominion, that subdivision on what material. It is still valid.
road lot that’s an open space. It is required by law to be
3. Immovable – stricto kaayu ang law. Not contended by
donated to LGU where it is situated but there must be
plain writing. It must be in PUBLIC document. Based on
acceptance by LGU for it becomes property of public
oblicon it may be be for convenience or it may be
dominion because if no acceptance yet, it is private
validity in donation it not for mere convenience, it is for
property.
is validity. For inter vivos donation.
b. ONLY GRATUITOUS AND REMUNERATORY DONATIONS ARE GOVERNED BY
b. Mortis causa
THE PROVISIONS OF TITLE III
i. After the death
c. DONATIONS WITH AN ONEROUS CAUSE ARE GOVERNED BY THE RULE ON
CONTRACTS ii. Covered by the formalities required in the execution of notarial
will
i. There is another type of donation which is onerous
iii. What is a will
1. Equivalent value is given by done

ii. Pure and unadulterated donation 1. Act of person disposing of gratuitously, properties he
own that will take effect after his death
1. Walay kapalit. Mau bitaw na nga title 3 has nothing to
iv. Requirement
do with onerous but it is covered by laws on contract
1. 805 – every will must be in writing and executed in
d. DONATIONS MORTIS CAUSA GOVERNED BY THE FORMALITIES REQUIRED IN
language or dialect known to testator. You need to
EXECUTION OF NOTARIAL WILL ( Art. 805, CC)
follow this.
2. Two types of donation
a. First there must be 3 witnesses who must sign
a. Inter vivos in the presence of the testator and presence
of one another. Imagine that requirement?
i. Takes effect during lifetime of donor
Ceremony jud ni. Naa na dapat naa jud na
ii. Title 3 there are specific legal requirement as to execution sila. Kada witness dapat naa ang testator at
the same time di pwede nga usa ka witness
1. Movable less than 5k – not required in writing. karon ugma ang sunod. Invalid ang will ana. In
Required that there be simultaneous delivery of the the document naa gyuy attestation clause.
thing. Di pwede ugma ihatag dapat karon jud. Di na
pwede. Donation is not perfected if wala karon b. Attestation clause is what differentiate last
will and testament from an ordinary contract.
a. Sale – it required that the thing must exist. Mortis causa follows last will formalities so
What is required at the time of transfer it is there should be attestation clause without
there. Perfection what is needed is only
8

which it will not be valid. If you go into
practice class pwede ra inyu ivideo. Why do
you have to do that? After ana if mamatay na
ang testator i-probate naman na. probate is
proceeding to prove whether or not testator
signed the will with sound mind or if it
complies with law. After the probated will can
it cause transfer of ownership. You will follow
same formalities in donation mortis causa.
3. 3 types
a. Simple donation
i. Liberality is the consideration
b. Remuneratory
i. There is reason but the reason is does not constitute a
demandable debt.
1. Like saving my life during the gulf war, so I made a
promise to you that this is my second life due to you
and I will give you parcel land. If you did not save my
life I will not give to you. I am not bound of my promise
you cannot file specific performance
c. Purely onerous
i. Not really donation, sukwahi nis description sa donation.
Donation does not require you to give something in return. Here
you have to give something in return.
4. Why is this important?
a. Due to what is the document to execute to make effective the donation
b. Our problem is whether it is inter vivos or mortis causa. That I s a question
that needs to be resolved to determine what formality should be used. Ari
ang sadya. Ang mga kaso or questions kay mga hybrid. Naay mga provisions
on its face inter vivos but if you will analyze it it really is mortis causa
Property 2016-2017 | Atty. Gravador
i. Ex I donate to you parcel of land but I incorporated there the
provision that says in the meantime I'm alive possession and
fruits shall remain with me. If you were a layman, or a student
who thinks like a layman, who does not care what donation is all
about, first impression will be mortis causa assuming you know
mortis causa kay di man i.deliver after my death. If you analyze
and is conscientious as a student and remember that is discussed
something about usufruct so what is usufruct? When somebody
enjoys the use and the fruits he is not necessarily the owner the
owner is naked owner. So in donation where there is no
conveyance of the possession and use of the frits not necessarily
inconsistent with transfer of ownership so inter vivos. Follow
formalities by book 3 of the book. We do not need to follow
requirements under 805.
c. Donation contains reservation to sell property while donor is still alive. I am
donating the property but in the meantime that I am alive, I am reserving
the power to sell the property. nya pakapinan pajud the ownership anyway
is transferred during the lifetime. First of all you have to analyze what is
power to sell? Is this significant to ownership of a person. Significant na kay
if ideprive ka tiaw tiaw imu right. It is indicator that it is mortis causa
donation. If the testator reserves right to sell is in effect reserving right to
revoke. That is essence of mortis causa. Inter vivos is generally irrevocable.
It can be revoked but only in specific grounds like birth or reappearance of
a child. Donate nya limut nga naa man diay ko anak. Muabut ang anak
muana pa nalimut mn ka nako. Pwede irrevoke pero specific. Mortis causa
class the donor does not need to explain. Muana ang donor murag di ko
ganahan sa imu hitsura dah irevoke nako. Pwde na.
d. Donation inter vivos it needs acceptance. Sa format sa donation naa juy
portion nga acceptance nga pirma ang donor there is acceptance clause
because acceptance and conveying the acceptance to donor will perfects
the donation
e. Be meticulous on what is the formalities required, is it book 3 or 805. So be
very careful
5. Book 3 focused on simple and remuneratory
a. Book 3 has nothing to do with onerous donation except in a suppletory
manner
6. Other types
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 Property 2016-2017 | Atty. Gravador
a. Propter nuptias (Please refer to the PPT slides for the example of donation mortis causa and last will and
testament)
i. Donation reason by marriage. Done before celebration
In a donation mortis causa, it follows that this form of donation must follow the formalities of
ii. Governed by rules in ordinary donation. Insofar as not modified the execution of a last will and testament. However, a last will and testament and donation
by article 83 of family code mortis causa are two different things. In donation mortis causa, except for the fact nga it does
not transfer ownership immediately, it looks like an ordinary donation inter vivos (you will not
1. Take note of this and read it find in a last will and testament such considerations as “love and affection”). And since a
donation mortis causa must follow the formalities of a last will and testament, it shall take
7. Elements of donation
effect upon the death of the donor (The main difference between inter vivos and mortis causa
a. Essential reduction of patrimony of the donor because of the incorpation of an attestation clause to the latter; presence of 3 witnesses;
witnesses must sign in the presence of each other and in the presence of the testator). Also
i. In other words if gipahuwamn ra ka no donation because there is remember that an attestation clause is not an empty ceremony that may be disregarded
no reduction of the asset of the donor because your last will and testament may be denied without this (the donation cannot effect a
transfer of ownership).
b. Increase in the patrimony of the donee

i. I must decrease and you shall increase – asa mu kabasa ana? (Atty. Gravador flashes PPT slides on donation inter vivos)
Bible This is donation inter vivos, Sir asa man ang acceptance? In the document. Mere saying that
you are accepting the donation is enough (“I hereby accept the foregoing”). Title 3 is very strict
c. Intent to do an act of liberality in terms of acceptance as an indispensable requirement. The acceptance may be done on a
8. Is donation contract? separate day, not like the attestation clause. There may also be two separate documents, i.e.
the deed of donation itself and the acceptance, provided that it must be noted in each
a. Yes, meeting of minds , consent, does not become perfect until there is document that the donation is already accepted to show that the donor knows of the
acceptance acceptance by the donee.

9. Intervivos
CLASSIFICATION OF DONATIONS INTO SIMPLE, REMUNERATORY, ONEROUS, & MODAL
a. The act is operative and final while mortis causa takes effect after the death of This classification is important for the purpose of determining the rules governing each
the donor situation. If it is an onerous donation, the law on obligations and contracts shall govern (e.g.
impossible conditions which annuls the onerous donation with an impossible condition). On
the other hand, If it is a simple or remuneratory donation, Title III provides that the impossible
SEPTEMBER 26, 2016 condition may simply be considered as not imposed or disregarded.

(Atty. Gravador flashes a PPT slide showing an example of a deed of donation) Formalities to be followed:
In a donation, there must be acceptance by the donee and the deed of donation must be In simple inter vivos:
signed by the donor and the donee. The donee should sign because it is a requirement in a a.1. If object is movable, 5K and below, may be made orally and the requirement on
donation that the donee must accept the donation and it is not mere acceptance because the simultaneous delivery;
acceptance must be made known to the donor when the donor is still alive or still capacitated. a.2. If object is movable, 5K or more, must be in writing and not necessarily in public
instrument;
(Please refer to the PPT slides for the example of donation inter vivos) b. Immovable, must be in a public document
What is the most important in a donation inter vivos is there is already a transfer of ownership.
Onerous donation:

10

a. Perfected by mere consent
b. Kung yuta2, although niingon sa statute of frauds nga not all transactions involving a
property must be in writing, and when the compliance with the condition will exceed 1 year,
unsa may ingon sa statute of frauds? It is not enforceable. Example: I donate to you a parcel of
land with the condition that within 5 years you have to construct a building. Here it is required
that it must be in writing (private document at the very least). But unlike in simple donation
inter vivos, there is a strict rule that it must not only be in writing but also in a public
instrument. By the time you are already to register the property, can you just present the
private document and cause the cancellation of the title of the donor? Of course no, because
under P.D. 1529, you are required to have a registrable document (public document).
ELEMENTS OF DONATION
Donation also partakes of a contract. What do you normally find in a contract? Of course the
elements, i.e., consent, object, consideration. In donation take note that we are very
meticulous about the perfection of the donation because it is only when the donation is
perfected where we can say that the donation is valid. So when is the donation perfected? The
law says it is perfected when there is acceptance.
But if you relate all the other provisions relating to perfection of donation, it is not only the
acceptance which is the determinative factor. THE ACCEPTANCE MUST BE MADE TO THE DONR
DURING HIS LIFETIME. So if ako ang donee, gi accept na nako pero kung wa hibaw ang donor sa
akong acceptance kay akong plano ig Sunday na nako siya pahibaw.un. Is there a perfected
donation? Not yet. It will only be perfected on Sunday, kay Sunday paman nako siya pahibal.un.
So for example from today to Sunday, something happened to the donor, he died on Saturday.
The donation is not perfected and I cannot also deal with the property from the moment I
accepted it unless when I accepted it the donor also knew of my acceptance. For example, pag
accept nako, ni adto dayun kos bangko kay this is “already’’ my property, I will apply for a loan
with this. That mortgage that i executed will be invalid because the donation is not yet
perfected. That’s how important perfection is.
CAPACITY
(with regard to the donor)
He must be capacitated at the time of the making of the donation. “at the time of making”
literally means at the time of signing. So kung ato pa, kung he becomes crazy later, okay ra ang
donation???? Literally yes but if you will consider the rule on when is there is perfection, the
capacity of the donor must not exist only at the time of the making, but it exist as well at the
time he has KNOWLEDGE OF THE ACCEPTANCE of the donee.
(with regard to the donee)
Property 2016-2017 | Atty. Gravador
Not required to be at least 18, basta naa lang kay capacity to act. But who may accept on their
behalf if minor? Iyang mga parents. Pwede pud lain taw ut must be pursuant to an SPA giving
the power to accept. If 50,000 above ang value sa property, you need to file a verified petition
for approval of a bond.
- all those who may contract and dispose
- all those not disqualified by law. (Art 740)
Donations made to incapacitated people are void:
Art. 1032. The following are incapable of succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail
to report it to an officer of the law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein, according to law, there is no obligation
to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue influence should cause the
testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will, or from revoking
one already made, or who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)
Di pud pwede and pari who took the last confession ug and physician/nurse/doctor who took
care of you on your last illness
October 1, 2016 (Part II)
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It is true that the general rule in onerous donation is governed by the law on obligations and
contracts. However, in regard to prescription it has to give way to the specific rule under the
doctrine. In other words, he advocated the view that we will apply the rule in statutory
construction that as between two provisions which are in pari materia, special rule will
prevail over the general rule.
In Atty’s opinion, maybe this will apply only in renumeratory donation. This is because if it is
less than in value, it is governed by Title III. However, it should presuppose that if there is a
burden, the value of the burden must be stated on the first instance, otherwise, if it is silent,
the value of the burden is deemed to be equivalent to the value of the property, hence, it is
onerous.
CASE: De Luna vs. Abrigo
SC said that if the donation is an onerous donation, the period to file an action to revoke
donation is 10 years.
TAKE NOTE: Apply De Luna vs Abrigo rather than Article 764, par. 3 which states that
prescription is 4 years.
CASE: Roman Catholic Archbishop Case
The enforcement of a donation with automatic reversion clause is within 10 years.
Ingratitude – commission of an offense against the person, honor, property of the donor, wife
or children, or any criminal offense by the donee to the donor.
It further provides that “even though he should prove it”. Can you imagine that, unsaon
pagpaprove nimo?
Third, if donee refuses to give support wherein donee is legally or morally required to give
support. This is a thing that Atty cannot understand because, you donate but still asks for
support. It is not only limited to legal support but also for moral support.
The prescriptive period here is one year from the time the donor has the knowledge of the
fact.
Inofficiousness – No person may give or receive, by way of donation, more than he may give or
receive by will.
Property 2016-2017 | Atty. Gravador
When the law says inofficious, it is referring to what can be given. This should be addressed to
the one who would be giving rather than the one who would receive. (Refer to the Simpler
Table of Legitimes)
Example 1: When the testator died, he was survived by his spouse, and legitimate children. 1/3
is reserved to illegitimate children and 1/3 to the surviving spouse. Hence, the maximum
donation that can be made by the testator is only up to 1/3.
Example 2: When testator died, he was survived by his spouse, illegitimate children and
legitimate parents. ¼ children, 1/8 spouse, and 1/2 parents.
To determine if the donation is inofficious, take a look on the legitime because the law says
that a donation is inofficious if it impairs a legitime.
TAKE NOTE: Only those who have a right to the legitime may question.
Is there any other that will question? Yes, those who are legatees (donee of a personal
property) and devisees (donee of a real property) who are not compulsory heirs. They cannot
question because they are not compulsory heirs base on the principle that “First in time, first
in right.”
October 3, 2016
Inofficiousness is a ground to reduce a donation. If the basis is inofficiousness, unlike the other
grounds like ingratitude, breach of condition, birth or appearance of children, the appropriate
cause of action here is reduction. In reduction, we will not totally set aside the donation.In
article 752, donation shall be inofficious in all that it may exceed this limitation.
Although 752 says that no person may give or receive, actually this is more addressed to the
giver. No person may give more than he may give. Ang pangutana karon is what extent of his
property holdings can he give? The answer there is “subject to the limitation that he may not
impair the legitime of his compulsory heirs”. Compulsory heirs only, i.e. surviving spouse,
legitimate children and descendants this includes the grandchildren incase the direct
descendant is already dead or incapacitated. The illegitimate children if he is recognized. I
showed you a table of legitime last time. Katong ⅓ legitime meaning kanang ⅓ di na nila pwede
hilabtan. When I say hilabtan I mean the donor cannot dispose of it gratuitously pero kung
gusto gyud niya hilabtan unya iya ibaligya tanan wala gyuy mahimo ang heir. How shall we
determine the legitime class. The legitime is determined after we determine the net estate. So
ang pag determine sa legitime class, we have to first know what is the net estate. How do we
determine the net estate? Gross estate niya then if there are liabilities we subtract. For
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 Property 2016-2017 | Atty. Gravador
example 10 million unya 5 million ang debt so 5 million ang net estate. After ma determine ang
net estate ara na nimo i determine ang legitime. This cannot be tinkered by the donor by
performing acts in a gratuitous manner. The question is what if the donor has, during his
lifetime, made some donations. (Talks about examples of donation like the SCRA and campaign
funds given by the father) those are called collatable expenses. Unsa may pasabot kung
collatable expenses class. Naa na sa article 1061 sa Civil Code, every compulsory heir, who
succeeds with other compulsory heirs, must bring into the mass of the estate any property or
right which he may have received from the decedent, during the lifetime of the latter, by way
of donation, in order that it may be computed in the determination of the legitime of each heir.
Kasabot mo ani class? So paghuman sa net estate class, tanan nga mga donation which were
given by the donor during his lifetime, ibalik ang value ato. Unsa may purpose ana class? To
determine pila gyud ang legitime to which each compulsory heir is entitled to.

Expenses for the support of children (enumerated under the Family Code), including the
advancement of the professional career, are not collatable. Ang collatable lang kay donations,
election expenses. When we say donation, it does not mean nga ma void ang donation. Gi
account lang nah cya to determine if naapil ba sa free portion. If wala, subject to reduction.

Caveat: Kaning collation doesn’t mean nga automatically ma void ang donation. Ma void rana
only when it impairs the legitime, or if the donation made to strangers exceeds the free
portion.

When you determine whether a donation is inofficious, take note of this Article on Collation.

In collation, you are not bound to return the very same property, but only the value thereof.

Who may ask that the donation be reduced on the ground of inofficiousness? Only those who
are entitled to the legitime, i.e. compulsory heirs. So if donee ka nya ma affected ka but di ka
compulsory heir, wa kay labot diha. (or if compulsory heir ka but the donation kay part of the
free portion) In other words, legatees and devisees have no personality to ask for the
reduction.

When are you supposed to file? 10 years.

13