ESSENTIAL ELEMENTS OF A TAX 1. 2. 3. 4.
It is an enforced contribution. It is generally payable in money. It is proportionate in character. It is levied on persons, property, or the exercise of a right or privilege (Excise tax). It is levied by the State which has jurisdiction over the subject or object of taxation. It is levied by the law-making body of the State. It is levied for public purpose or purposes.
5. 6. 7.
PURPOSES OF TAXATION 1.
Revenue of fiscal: The primary purpose of taxation on the part of the government is to provide funds or property with which to promote the general welfare and the protection of its citizens and to enable it to finance its multifarious activities.
2.
Non-revenue or regulatory: Taxation may also be employed for purposes of regulation or control. e.g.: a)
Imposition of tariffs on imported goods to protect local industries.
b)
The adoption of progressively higher tax rates to reduce inequalities in wealth and income.
the construction and maintenance of highways and, to a much lesser degree, pay for the operating expenses of the administering agency. It is possible for an exaction to be both a tax a nd a regulation. License fees are charges, looked to as a source of revenues as well as means of regulation. The fees may properly be regarded as taxes even though though they also serve as an instrument of regulation. If the purpose is primarily revenue, or if revenue is at least one of the real and substantial purposes, then the exaction is properly called a tax. Tio v. Videogram, 151 SCRA 208 PD 1987 which created the Videogram Regulatory Board also imposed a 30% tax on the gross receipts payable to the local government. SC upheld the validity of the law ruling that the tax imposed is not only a regulatory but also a revenue measure prompted by the realizations that earnings of videogram establishments of around P600 million annually have not been subject to tax, thereby depriving the government of an additional source of revenue. It is a user tax imposed on retailers for every video they make available for public viewing. The 30% tax also served a regulatory purpose: to answer the need for regulating the video industry, particularly the rampant film piracy, the flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes. Caltex v. Commissioner, 208 SCRA 755
c)
The increase or decrease of taxes to prevent inflation or ward off depression.
PAL v. Edu, 164 164 SCRA 320 320 The legislative intent and purpose behind the law requiring owners of vehicles to pay for their registration is mainly to raise funds for
Taxation is no longer a measure merely to raise revenue to support the existence of government. Taxes may be levied with a regulatory purpose to provide means for the rehabilitation and stabilization of a threatened industry which is affected with public interest as to be within the police power of the State. The oil industry is greatly imbued with public interest as it vitally affects the general welfare.
SUMPTUARY PURPOSE OF TAXATION 1
The power of taxation is essential because the government can neither exist nor endure without taxation. “ Taxes are the lifeblood of the government and their prompt and certain availability is an imperious need”, [Bull v. United States, 295 U.S. 247, 15 APTR 1069, 1073]. The collection of taxes must be made without any hindrance if the state is to maintain its orderly existence.
More popularly known as the non-revenue or regulatory purpose of taxation. While the primary purpose of taxation is to raise revenue for the support of the government, taxation is often employed as a devise for regulation by means of which certain effects or conditions envisioned by the government may be achieved.
For example, government may provide tax incentives to protect and promote new and pioneer industries. The imposition of special duties, like dumping duty, marking duty, retaliatory duty, and countervailing duty, promote the non-revenue or sumptuary purpose of taxation.
Government projects and infrastructures are made possible through the availability of funds provided through taxation. The government’s ability to serve and protect the people depends largely upon taxes. Taxes are what we pay for a civilized society, [Commissioner v. Algue, 158 SCRA 9].
THEORY AND BASIS OF TAXATION The power of taxation proceeds upon the theory that the existence of government is a necessity; that it cannot continue without means to pay its expenses; and that for these means, it has a right to compel all its citizens property within its limits to contribute.
The basis of taxation is found in the reciprocal duties of protection and support between the State and its inhabitants. In return for his contribution, the taxpayer received benefits and protection from the government. This is the so called “ Ben efits efits received principle”.
Taxation has been defined as the power by which the sovereign raises revenue to defray the necessary expenses of government. It is a way of apportioning the cost of government among those who in some measure are privileged to enjoy the benefits and must therefore bear its burden, [51 [51 Am. Jur. 34 ]. ].
LIFEBLOOD DOCTRINCE The lifeblood theory constitutes the theory of taxation, which provides that the existence of government is a necessity; that government cannot continue without means to pay its expenses; and that for these means it has a right to compel its citizens and property within its limits to contribute.
In Commissioner v. Algue , the Supreme Court said that taxes are the lifeblood of the government and should be collected without necessary hindrance. They are what we pay for a civilized society. Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. The government, for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values.
2
The power of taxation is essential because the government can neither exist nor endure without taxation. “ Taxes are the lifeblood of the government and their prompt and certain availability is an imperious need”, [Bull v. United States, 295 U.S. 247, 15 APTR 1069, 1073]. The collection of taxes must be made without any hindrance if the state is to maintain its orderly existence.
More popularly known as the non-revenue or regulatory purpose of taxation. While the primary purpose of taxation is to raise revenue for the support of the government, taxation is often employed as a devise for regulation by means of which certain effects or conditions envisioned by the government may be achieved.
For example, government may provide tax incentives to protect and promote new and pioneer industries. The imposition of special duties, like dumping duty, marking duty, retaliatory duty, and countervailing duty, promote the non-revenue or sumptuary purpose of taxation.
Government projects and infrastructures are made possible through the availability of funds provided through taxation. The government’s ability to serve and protect the people depends largely upon taxes. Taxes are what we pay for a civilized society, [Commissioner v. Algue, 158 SCRA 9].
THEORY AND BASIS OF TAXATION The power of taxation proceeds upon the theory that the existence of government is a necessity; that it cannot continue without means to pay its expenses; and that for these means, it has a right to compel all its citizens property within its limits to contribute.
The basis of taxation is found in the reciprocal duties of protection and support between the State and its inhabitants. In return for his contribution, the taxpayer received benefits and protection from the government. This is the so called “ Ben efits efits received principle”.
Taxation has been defined as the power by which the sovereign raises revenue to defray the necessary expenses of government. It is a way of apportioning the cost of government among those who in some measure are privileged to enjoy the benefits and must therefore bear its burden, [51 [51 Am. Jur. 34 ]. ].
LIFEBLOOD DOCTRINCE The lifeblood theory constitutes the theory of taxation, which provides that the existence of government is a necessity; that government cannot continue without means to pay its expenses; and that for these means it has a right to compel its citizens and property within its limits to contribute.
In Commissioner v. Algue , the Supreme Court said that taxes are the lifeblood of the government and should be collected without necessary hindrance. They are what we pay for a civilized society. Without taxes, the government would be paralyzed for lack of motive power to activate and operate it. The government, for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values.
2
By enforcing the tax lien, the BIR availed itself of the most expeditious way to collect the tax. Taxes are the lifeblood of the 1. government and their prompt and certain availability is an imperious 2. need,[CIR need, [CIR v. Pineda, 21 SCRA 105].
The government is not bound by the errors committed by its 3. agents. In the performance of its governmental functions, the State cannot be estopped by the neglect of its agents and officers. Taxes are 4. the lifeblood of the nation through which the government agencies continue to operate and with which the state effects its functions fro the welfare of its constituents. The errors of certain administrative officers should never be allowed to jeopardize the government’s financial position, [CIR v. CTA, 234 SCRA 348].
The BIR is authorized to collect estate tax deficiency through the summary remedy of levying upon the sale of real properties of a decision without the cognition and authority of the court sitting in probate over the supposed will of the decedent, because the collection of the estate tax is executive in character. As such, the estate tax is exempted from the application of the statute on non-claims, and this is justified by the necessity of government funding, immortalized in the maxim “ Taxes are the lifeblood of the government and should be made in accordance with law, as any arbitrariness will negate the very reason for government itself, [Marcos II v. CA, 273 SCRA 47].
Taxes are the lifeblood of the government and so should be collected without unnecessary hindrance. Philex’s claim that it had no obligation to pay the excise tax l iabilities within the prescribed period since it still has pending claims for VAT input credit/refund with the BIR is untenable, [Philex Mining Corporation v. CIR, 294 SCRA 687]
Illustrations of Lifeblood theory
Collection of taxes cannot be enjoined by injunction. Taxes could not be the subject of compensation or set off. A valid tax may result in the destruction of the taxpayer’s property. Taxation is an unlimited and plenary power.
NECESSITY THEORY Taxation as stated in the case of Phil. Guaranty Co., Inc. v. Commissioner [13 SCRA 775], is a power predicated upon necessity. It is a necessary burden to preserve the State’s sovereignty and a means to give the citizenry an army to resist aggression, a navy to defend its shores from invasion, a corps of civil servants to serve, public improvements for the enjoyment of the citizenry, and those which come wit hin wit hin the State’s territory and facilities and protection which a government is supposed to provide.
BENEFITS RECEIVED PRINCIPLE This theory bases the power of the State to demand and receive taxes on the reciprocal duties of support and protection. The citizen supports the State by paying the portion from his property that is demanded in order that he may, by means thereof, be secured in the enjoyment of the benefits of an organized society. Thus, the taxpayer cannot question the validity of the tax law on the ground that payment of such tax will render him impoverished, or lessen his financial or social standing, because the obligation to pay taxes is involuntary and compulsory, in exchange for the protection and benefits one receives from the government.
3
In return for his contribution, the taxpayer receives the general advantages and protection which the government affords the taxpayer and his property. One is compensation or consideration for the other; protection for support and support for protection.
However, it does not mean that only those who are able to and do pay taxes can enjoy the privileges and protection given to a citizen by the government.
In fact, from the contribution received, the government renders no special or commensurate benefit to any particular property or person. The only benefit to which the taxpayer is entitled is that derived from the enjoyment of the privilege of living in an organized society established and safeguarded by the devotion of taxes to public purpose. The government promises nothing to the person taxed beyond what may be anticipated from an administration of the laws for the general good, [Lorenzo v. Posadas].
part of one’s hard -earned income to the taxing authorities, every person who is able must contribute his share in the burden of running the government. The government for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance th eir material and moral values.” What is the scope of the power to tax? The power of taxation is the most absolute of all powers of the government [Sison v. Ancheta 130 SCRA 654]. It has the broadest scope of all the powers of government because in the absence of limitations, it is considered as unlimited, plenary, comprehensive and supreme. However, the power of taxation should be exercised with caution to minimize injury to the proprietary rights of the taxpayer. It must be exercised fairly, equally, and uniformly, lest the tax collector kill “the hen that lays the golden egg” [Roxas v. CTA, 23 SCRA 276]. When is taxation considered as an implement of police power?
Taxes are essential to the existence of the government. The obligation to pay taxes rests not upon the privileges enjoyed by or the protection afforded to the citizen by the government, but upon the necessity of money for the support of the State. For this reason, no one is allowed to object to or resist payment of taxes solely because no personal benefit to him can be pointed out as arising from the tax, [ Lorenzo v. Posadas].
DOCTRINE OF SYMBIOTIC RELATIONSHIP This doctrine is enunciated in CIR v. Algue, Inc. [158 SCRA 9], which states that “Taxes are what we pay for civilized society. Without taxes, the government would be paralyzed for lack of the motive power to activate and operate it. Hence, despite the natural reluctance to surrender
In Walter Lutz v. J. Antonio Araneta, 98 Phil 148 , the SC upheld the validity of the tax law increasing the existing tax on the manufacture of sugar. “The protection and promotion of the sugar industry is a matter of public concern; the legislature may determine within reasonable bounds what is necessary for its protection and expedient for its promotion. If objective and methods alike are constitutionally valid, there is no reason why the state may not levy taxes to raise funds for their prosecution and attainment. Taxation may be made the implement of the s tate’s police power.”
In Tio v. Videogram Regulatory Board, 151 SCRA 208, the levy of a 30% tax under PD1987, was imposed primarily for answering the 4
need for regulating the video industry, particularly t he rampant film piracy, the flagrant violation of intellectual property rights, and the proliferation of pornographic videotapes, and is therefore valid. While the direct beneficiaries of the said decree is the movie industry, the citizens are held to be its indirect beneficiaries. What is the concept of fiscal adequacy?
service, which device or service requires the use in any degree of legal knowledge or skill (Cayetano v. Mons od, 201 SCRA 210).
Bar Admission – act by which one is licensed to practice before courts of
That the sources of revenues must be adequate to meet government expenditures, [Chavez v. Ongpin, 186 SCRA 331] .
a particular state or jurisdiction after satisfying certain requirements such as bar examinations, period of residency or admission on grounds of reciprocity after period of years as member of bar of another jurisdiction (Black Law Dictionary Sixth Edition, p.149).
Legal Profession terms to remember BAR
vs.
Refers
to
the
whole
body of attorneys and
BENCH Denotes
the
whole
body of judges
Lawyer – This is the general term for a person trained in the law and authorized to advise or represent others in legal matters.
counselors, collectively, the
members
of
the
legal profession
Trial Lawyer – A lawyer who personally handles cases in court, administrative agencies or boards which means engaging in actual trial work either for the prosecution or f or the defense of cases of clients.
Practice of Law - - Any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to give notice or render any kind of
Practising Lawyer – One engaged in the practice of law. All trial lawyers are practicing lawyers, but not all practicing lawyers are trial lawyers.
5
Counsel d e o f f i c i o - a counsel, appointed or assigned by the court, from Client – One who engages the services of a lawyer for legal advice or for
among members of the Bar in good standing who, by reason of their experience and ability, may adequately defend the accused.
purposes of prosecuting or defending a suit in his behalf and usually for a fee. Note: In localities where members of the Bar are not available, the court
may appoint any person, resident of the province and of good repute for Attorney-at-Law/Counselor-atlaw/lawyer/attorney/counsel/abogado/boceros – that class of persons
probity and ability, to defend the accused. [Sec. 7 Rule 116, Rules of Court (1985)]
who are by license officers of the courts, empowered to appear, prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities are developed by law as a consequence (Cui v. Cu i, 120 Phil. 729). Attorney a d h o c – a person named and appointed by the court to defend an absentee defendant in the suit in which the appointment is made (Bienvenu v. Factor’s Traders Insurance Corp., 33 La. Ann. 209) Attorney-in-fact – an agent whose authority is strictly limited by the instrument appointing him, though he may do things not mentioned in his appointment necessary to the performance of the duties specifically required of him by the power of attorney appointing him, such authority being necessarily implied. He is not necessary a lawyer.
Attorney of Record – one who has filed a notice of appearance and who hence is formally mentioned in court records as the attorney of the party. Person whom the client has named as his agent upon whom service of papers may be made. (Reynolds v. Reynolds. Cal. 2d580).
6
Of Counsel – to distinguish them from attorneys of record, associate
Barrrister (England) – a person entitled to practice law as an advocate or
attorneys are referred to as “of counsel”(5 Am. Jur. 261)
counsel in superior court.
Lead Counsel – The counsel on their side of a litigated action who is
Solicitor (England) – A person prosecuting or defending suits in Courts of
charged with the principal management and direction of a party’s case.
Chancery.
House Counsel – Lawyer who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Amicus curiae – a friend of the court, not a party to the action; is an experienced and impartial attorney invited by the court to appear and help in the disposition of the issues submitted to it. It implies friendly
Solicitor (Philippines) – A government lawyer attached with the Office of the Solicitor General. Proctor (England) – Formerly,
an
attorney
in
the
admiralty
and
ecclesiastical courts whose duties and business correspond to those of an attorney at law or solicitor in Chancery.
intervention of counsel to call the attention of the court to some matters of law or facts which might otherwise escape its notice and in regard to which
Titulo de Abogado – it means not mere possession of the academic
it might go wrong.
degree of Bachelor of Laws but membership of the Bar after due admission thereto, qualifying one for the practice of law.
Amicus curiae par excellence – bar associations who appear in court as amici curiae or friends of the court. Acts merely as a consultant to guide the court in a doubtful question or issue pending before it.
Bar Association – an association of members of the legal profession. Advocate – The general and popular name for a lawyer who pleads on behalf of someone else.
7
POWER OF TAXATION
essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising
-
Does the power to tax include the power to destroy?
purpose, is within the ambit of this power.
The power to tax includes the power to destroy if it is used as an
The power to grant or issue licenses or business permits must always
implement of the police power (regulatory) of the State. However , it does
be exercised in accordance with law, with utmost observance of the rights
not include the power to destroy if it is used solely for the purpose of
of all concerned to due process and equal protection of the law.
raising revenue. (ROXAS vs. CTA ) NOTES:
Distinction must be made between the grant of a license or permit to > If the purpose of taxation is regulatory in character, taxation is
do business and the issuance of a license to engage in the practice of a
used to implement the police power of the state.
particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate
> If the power of taxation is used to destroy things, businesses,
the particular profession. A business permit authorizes the person, natural
or enterprises and the purpose is to raise revenue, the court will come in
or otherwise, to engage in business or some form of commercial activity. A
because there will be violation of the inherent and constitutional
professional license, on the other hand, is the grant of authority to a
limitations and it will be declared invalid.
natural person to engage in the practice or exercise of his or her
-
Taxes distinguished from Licenses
Acebedo
profession.
Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000,
En Banc [Purisima]
The Life-Blood Doctrine
The scope of police power has been held to be so comprehensive as
Taxes are the life-blood of the Government and their prompt and
to encompass almost all matters affecting the health, safety, peace, order,
certain availability are an imperious need. (CIR v. Pineda, 21 SCRA
morals, comfort and convenience of the community. Police power is
105) 8
against the government or that the collection of a tax is contingent on the The existence of the government is a necessity; the main source of the government is taxes. These are the life-blood of the government.
result of the lawsuit it filed against the government. -
Tax Exemptions
The government will not be able to survive and continue to perform its
Sec. 28[3], Art. VI, 1987 Constitution
functions without taxes. (CIR v. Algue, Inc., 158 SCRA 8)
-
Can taxes be subject to off-setting or compensation?
SECTION 28. (3)
Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-profit cemeteries, and all
Philex
Mining
Corporation
v.
CIR, 294
SCRA
687, Aug.
28,
lands, buildings, and improvements, actually, directly, and exclusively used
1998 [Romero]
for religious, charitable, or educational purposes shall be exempt from taxation.
Taxes cannot be subject to compensation for the simple reason that the government and the taxpayer are not creditors and debtors of each
Sec. 4[3], Art. XIV, 1987 Constitution
other. There is a material distinction between a tax and debt. Debts are due to the Government in its corporate capacity, while taxes are due to
SECTION 4. (3) All revenues and assets of non-stock, non-profit
the Government in its sovereign capacity . It must be noted that a
educational institutions used actually, directly, and exclusively for
distinguishing feature of a tax is that it is compulsory rather than a matter
educational purposes shall be exempt from taxes and duties. Upon the
of bargain. Hence, a tax does not depend upon the consent of the
dissolution or cessation of the corporate existence of such institutions,
taxpayer. If any taxpayer can defer the payment of taxes by raising the
their assets shall be disposed of in the manner provided by law.
defense that it still has a pending claim for refund or credit, this would
Proprietary educational institutions, including those cooperatively
adversely affect the government revenue system. A taxpayer cannot
owned, may likewise be entitled to such exemptions subject to the
refuse to pay his taxes when they fall due simply because he has a claim
limitations provided by law including restrictions on dividends and provisions for reinvestment. 9
CIR v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban]
-
Tax Treaties; International Juridical Double Taxation
Laws allowing tax exemption are construed strictissimi juris. Hence, for the YMCA to be granted the exemption it claims under the abovecited provision, it must prove with substantial evidence that (1) it falls under the
-
CIR v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, 3rd Div. [Gonzaga-Reyes]
classification non-stock, non-profit educational institution; and (2) the
The RP-US Tax Treaty is just one of a number of bilateral treaties
income it seeks to be exempted from taxation is used actually, directly,
which the Philippines has entered into for the avoidance of double
and exclusively for educational purposes. However, the Court notes that
taxation. The purpose of these international agreements is to reconcile
not a scintilla of evidence was submitted by private respondent to prove
the national fiscal legislations of the contracting parties in order to help
that it met the said requisites.
the
Who may grant tax exemptions?
taxpayer
avoid
simultaneous
taxation
in
two
different
jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation .
Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban]
International
juridical
double
taxation is
defined
as
the
imposition of comparable taxes in two or more states on the same
The power to tax and to grant exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies. Section 28(4), Article VI of the Constitution, specifically provides: “No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress.” The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases.
taxpayer in respect of the same subject matter and for identical periods.
The apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.
10
1. Passive and active subject PROPERTY 2. Object is an intangible thing (specific thing) 3. Creates juridical relations through title
Classification (according to mobility): 4. Not extinguished through loss or destruction of thing
1. Immovable – real property 2. Movable – personal property
Requisites:
Immovable property 1. By nature – cannot be moved from place to place because of their nature
1. Utility
a) land, buildings & all k inds of constructions adhered to soil
2. Individuality/Substantivity
b) mine, quarries
3. Susceptibility of appropriation 2. By incorporation – essentially movables but attached to an immovable that it becomes an integral part of it
Real Rights a) trees, plants & growing fruits adhered to soil
1. no passive subject – claim against whole world b) everything attached to an immovable that it will break if separated 2. object is corporeal thing (obligation) c) statues, paintings if intended by owner to be integral part of immovable 3. creates juridical relations through mode & title 4. extinguished through loss or destruction of thing
Personal Rights
d) animal houses if intended by owner to become permanently attached to immovable
3. By destination – movables but purpose is to partake of an integral part of an immovable 11
a) machinery placed by owner of the tenement & tend directly to meet the needs of such works/industry
Classification of Property (according to ownership):
b) fertilizers – when applied to soil 1. Public dominion – c) docks & floating structures a) intended for public use b) intended for public service of state, provinces, cities & municipalities 4. By analogy/by law – contracts for public works, servitude & other real rights over immovable property
Characteristics:
a) outside the commerce of men – cannot be alienated or leased
Movable property
1. susceptible of appropriation that are not included in enumeration in immovable 2. immovable that are designated as movable by special provision of law 3. forces of nature brought under control by science
b) cannot be acquired by private individual through prescription c) not subject to attachment & execution d) cannot be burdened by voluntary easement 2. Private Ownership – a) patrimonial property of state, provinces, cities, municipalities
4. things w/c can be transported w/o impairment of real property where they are fixed
1. exist for attaining economic ends of state
5. obligations which involve demandable sums (credits)
2. property of public dominion when no longer intended for public use/service – declared patrimonial
6. shares of stocks of agricultural, commercial & industrial entities although they may have real estate
b) property belonging to private persons – individually or collectively
Classification of Movables
1. consumable – cannot be utilized w/o being consumed 2. non-consumable
12
2. immovable –
Title II – OWNERSHIP a) forcible entry – used by person deprived of possession through violence, intimidation (physical possession, 1 year unlawful deprivation) Chapter 1: OWNERSHIP IN GENERAL
Definitions of Ownership Independent and general right of a person to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the state or private persons, without prejudice to the provisions of the law.
Power of a person over a thing for purposes recognized by law & within the limits established by law
b) unlawful detainer – used by lessor/person having legal right over property when lessee/person withholding property refuses to surrender possession of property after expiration of lease/right to hold property (physical possession, 1 year from unlawful deprivation) c) accion publiciana – plenary action to recover possession d) accion reinvindicatoria – recovery of dominion of propert y as owner 7. Principle of self help – self defense Elements: a) Person exercising rights is owner or lawful possessor
Attributes:
1. Jus possidendi – right to possess 2. Jus utendi – right to enjoy
b) There is actual or threatened unlawful physical invasion of his property c) Use force as may be reasonably necessary to repel or prevent it Available
only when possession has not yet been lost, if already lost – resort to judicial process
3. Jus fruendi – right to fruits
rd
May be exercised by 3 person – negotiorum gestio
4. Jus abutendi – right to use and abuse
5. Jus disponendi – right to dispose
8. Right to enclose or fence w/o detriment to servitude constituted
6. Jus vindicandi – right to exclude others from possession of the thing
9. Right to surface & everything under it only as far as necessary for his practical interest (benefit or enjoyment)
Actions for possession: 10. Right to hidden treasure found in o wn property 1. movable – replevin (return of a movable) a) hidden and unknown movables w/c consist of m oney or precious objects 13
b) owner is unknown
Chapter 2: RIGHT OF ACCESSION
c) by chance – if property owner is state – ½ belongs to finder; also if in another’s property; the finder must not be trespasser
Limitation on Ownership
1. general limitations for the benefit of the state (eminent domain, police power, taxation)
Accession – owner of thing becomes owner of everything it may produce or those which may be incorporated or united thereto
1. principle of justice 2. accessory follows the principal
Accession continua – accession to products of the thing
Rights of owners: natural, industrial & civil fruits
2. specific limitations imposed by law (servitude, easements) 3. specific limitations imposed by party transmitting ownership (will, contract)
exception: possession in good faith by another, usufruct, lease, antichresis
4. limitations imposed by owner himself (voluntary servitude, mortgages, pledges)
Obligation of owners:
5. inherent limitations arising from conflicts with other similar rights (contiguity of property)
a) Immovables – accretion
6. owner cannot make use of a thing which shall injure/prejudice rights of rd 3 persons (neighbors)
1. Alluvion - owner of lands adjoining banks of river belongs the accretion gradually received from effects of the water's current
7. acts in state of necessity – law permits injury or destruction of things owned by another provided this is necessary to avert a greater danger (with right to indemnity – vs. principle of unjust enrichment) 8. true owner must resort to judicial process – when thing is in possession of another; law creates a disputable presumption of ownership to those in actual possession
Requisites:
a. deposit is gradual & imperceptible b. made through effects of current of water c. land where accretion takes place is adjacent to banks of river
a) identify property
Rights of riparian owner
b) show that he has better title 14
Right to accretion ipso facto – no need to make an express act of possession 2. Avulsion – transfer of a known portion of land from one tenement to another by force of current of waters
Rights of riparian owner
a) Right to portion of land transferred if not claimed by owner within 2 years (prescription) b) Right to trees uprooted if not claimed by owner w/in 6 months; subject to reimbursement for necessary expenses for gathering them & putting them in safe place
Exception: contrary is proven
Right of owner of material
1. Right to be indemnified or paid of value of property by owner of land 2. Right to remove materials if he can do so w/o injury to work constructed if owner has not paid 3. Right to damages and demolition even if with injury to work if owner of land is in bad faith
3. Change of river bed
Right of owner of land occupied by new river course
1. Right to old bed ipso facto in proportion to area lost 2. Owner of adjoining land to old bed shall have right to acquire the same by paying its value – value not to exceed the value of area occupied by new bed
Right of owner when another builds, plants or sows in his land: (OWNER & BUILDER BOTH IN GOOD FAITH)
1. Appropriate as his own after paying for indemnity 2. Oblige the planter, builder to pay for price of land or rent, except when value of lands is greater than thing built – convert to rent
3. Formation of island in non-navigable river
Right of Builder in good faith before payment of indemnity of owner in good faith
a) owner of margin nearest to islands formed – if nearest to it
1. Right to retain land & building
b) owner of both margins – if island is in the middle (divided into halves longitudinally)
2. Right not to be compelled to pay for rent
4. building, planting & sowing
General Rule – whatever is built, planted or sown belongs to owner of land; presumption is owner made them at his expense
3. Right of retention ceases when obliged to pay for value of and if he fails to do so
Right of owner in good faith when builder is in bad faith
1. Right to appropriate what has been built w/o paying indemnity 15
2. Order demolition of building
rd
3. When 3 person is paid by builder, builder may demand from landowner the value of labor & materials
3. Compel the builder to pay for price of land or rent b) Movables 4. Right to damages 1. Conjunction / adjunction – 2 movable things which belong to different owners are united to form a single object
Right of builder in bad faith when owner is in good faith Right to be reimbursed for necessary expenses for preservation of land Right of Builder in good faith when owner is in bad faith
Test to determine w/c one is the principal:
a. that to w/c the other intended to be united as ornament or for its use of perfection
1. Right to indemnity for value of building
b. value
2. Right to damages
c. volume
3. Right to demolish w/o payment of indemnity
Bad faith on both builder & owner – in pari delicto (no cause of action vs. each other)
rd
Right of 3 person who owns materials
1. Right to be indemnified for value of materials irrespective of good faith or bad faith of builder or owner; if builder has no property, owner is subsidiarily liable 2. When builder is in bad faith & owner in good faith & owner compel builder to remove improvements, owner is not subsidiarily liable
Rights:
1. If both are in good faith – owner of principal acquired the accessory with indemnification 2. If both are in good faith – may separate them if no injury will be caused; if value of accessory is greater than principal, owner of accessory may demand separation even if damages will be caused to the principal (expenses to be borne by one who caused the conjunction) 3. If owner of accessory is in bad faith – owner of accessory with damages to principal 4. If owner of principal is in bad faith – owner of accessory shall have option of principal paying value of accessory or removal of accessory despite destruction of principal
16
5. Owner of accessory or principal has right to indemnity when thing adjuncts w/o his consent – may demand that a thing equal is kind, value and price
2. If one owner is in bad faith – he shall lose the thing belonging to him plus indemnity for damages caused to owner of other thing mixed with his thing 3. If both in bad faith no cause of action against each other
2. Specification – One employs the materials of another in whole or in part on order to make a thing of a different kind; transformation
Chapter 3: QUIETING OF TITLE
Rights:
1. If person who made the transformation is in good faith - he shall appropriate the thing transformed as his own with indemnity to owner of material for its value 2. If material is more precious than tr ansformed thing – owner of material may appropriate the new thing to himself after indemnity paid to labor or demand indemnity for materials 3. If person who made the transformation is in bad faith, owner of material shall appropriate the work to himself w/o paying maker or demand indemnity for value of materials & damages
1. prevent litigation 2. protect true title & possession 3. real interest of both parties which requires that precise state of title be known
Rights:
1. If both owners are in good faith – Each owner shall acquire a right proportional to the part belonging to him (vis-a-vis the value of the things mixed or confused)
Action to quiet title
put end to vexatious litigation in respect to property involved; plaintiff asserts his own estate & generally declares that defendant’s claim is w/o foundation
when proper:
4. If transformed thing is more valuable than material, owner of material cannot appropriate
3. Commixtion / confusion – 2 things of the same or different kinds are mixed & are not separable w/o injury
Reasons:
1. contract has been extinguished or terminated 2. contract has prescribed 3. remove cloud
Action to remove cloud
17
intended to procure cancellation, delivery, release of an instrument, encumbrance, or claim constituting a on plaintiff’s title which may be used to injure or vex him in the enjoyment of his title
Cloud – any instrument which is inoperative but has semblance of title
Requisites:
b) unity of material (indivision) of object of ownership c) recognition of ideal shares
Causes/Sources:
1. Plaintiff must have legal or equitable interest
1. law
2. Need not be in possession of property
2. contracts
3. Return to defendant all benefits received – he who wants justice must do justice
3. succession 4. fortuitous event/chance – commixtion 5. occupancy – 2 persons catch a wild animal
Chapter 4: RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING
Liability for damages:
Distinguished from partnership
a) partnership created only by agreement; co-ownership has many sources
1. collapse – engineer, architect or contractor
b) purpose of partnership is to obtain profit; co-ownership is collective enjoyment of a thing
2. collapse resulting from total or partial damage; no repair made – owner; state may compel him to demolish or make necessary work to prevent if from falling
c) in partnership there is juridical personality distinct from individuals, none in co-ownership
3. if no action – done by government at expense of owner
Title III: CO-OWNERSHIP
d) partnership can be created for more than 10 years, not in co-ownership e) partners cannot transfer rights w/o consent of other co-partners, not coownership f) partnership extinguished when partner dies, not in co-ownership
Co-ownership
a) plurality of subjects – many owners
g) distribution of profits in partnerships may be stipulated, this is not flexible in co-ownership but depends on ideal share/interest 18
14. Right to share in proceeds of sale of thing if thing is indivisible and they cannot agree that it be allotted to one of them
Rights of co-owners 1. Right to benefits proportional to respective interest; stipulation to contrary is void 2.
a.
for purpose for which it is intended
b.
without prejudice to interest of ownership
c. without preventing other co-owners from making use thereof 3.
Right to change purpose of co-ownership by agreement
4. Right to bring action in ejectment in behalf of other coowner 5. Right to compel co-owners to contribute to necessary expenses for preservation of thing and taxes 6. Right to exempt himself from obligation of paying necessary expenses and taxes by renouncing his share in the proindiviso interest; but can’t be made if prejudicial to co-ownership 7. Right to make repairs for preservation of things can be made at will of one co-owner; receive reimbursement therefrom; notice of necessity of such repairs must be given to co-owners, if practicable 8.
Duties/Liabilities
Right to use thing co-owned
Right to full ownership of his part and fruits
9. Right to alienate, assign or mortgage own part; except personal rights like right to use and habitation 10.
Right to ask for partition anytime
11.
Right of pre-emption
12.
Right of redemption
13. Right to be adjudicated thing (subject to right of others to be indemnified)
1. Share in charges proportional to respective interest; stipulation to contrary is void 2. Pay necessary expenses and taxes – may be exercised by only one co-owner 3. Pay useful and luxurious expenses – if determined by majority 4. Duty to obtain consent of all if thing is to be altered even if beneficial; resort to court if non-consent is manifestly prejudicial 5. Duty to obtain consent of majority with regards to administration and better enjoyment of the thing; controlling interest; court intervention if prejudicial – appointment of administrator 6. No prescription to run in favor co-owner as long as he recognizes the co-ownership; requisites for acquisition through prescription a.
he has repudiated through unequivocal acts
b. such act of repudiation is made known to other co-owners c.
evidence must be clear and convincing
7. Co-owners cannot ask for physical division if it would render thing unserviceable; but can terminate co-ownership 8. After partition, duty to render mutual accounting of benefits and reimbursements for expenses 9. Every co-owner liable for defects of title and quality of portion assigned to each of the co-owner 19
2. 2 possessors – one longer in possession
rd
Rights of 3 parties 3. dates of possession the same – one who presents a title 1. creditors of assignees may take part in division and object if being effected without their concurrence, but cannot impugn unless there is fraud or made notwithstanding their formal opposition
4. both have titles – judicial resolution b.
1. tradicion simbolica – delivering object or symbol of placing thing under control of transferee (keys)
2. non-intervenors – retain rights of mortgage and servitude and other real rights and personal rights belonging to them before partition was made
2. tradicion longa manu – pointing out to transferee the things which are being transferred
Title V: POSSESSION
c. proper acts and legal formalities established for acquiring rights – donation, sale
Possession – holding of a thing or enjoyment of a right
1. occupancy – actual or constructive (corpus)
2. intent to possess (animus)
What can be subject of possession – things or rights which are susceptible of being appropriated
How acquired: a.
material occupation – possession as a fact 1.
Degrees of possession:
physical
2. constructive - tradicion brevi manu (one who possess a thing short of title of owner – lease );
subject to action of our will- possession as a right
tradicion constitutum possesorium (owner alienates thing but continues to possess – depositary, pledgee, tenant) cannot be recognized at the same time in 2 different personalities except co-possession
1.
holding w/o title and in violation of right of owner
2.
possession with juridical title but not that of owner
3.
possession with just title but not from true owner
4.
possession with just title from true owner
Classes of ownership: 1.
question arise regarding fact of possession
in concept of owner – owner himself or adverse possessor
Effects: 1. present possessor preferred
20
a. may be converted acquisitive prescription
into
ownership
through
b.
bring actions necessary to protect possession
c.
ask for inscription of possession
1. possession of hereditary property is deemed transmitted w/o interruption from moment of death ( if accepted) and if not accepted ( deemed never to have possessed the same ) 2. one who succeeds by hereditary title shall not tack the bad faith of predecessors in interest except when he is aware of flaws affecting title; but effects of possession in good faith shall not benefit him except from date of death of decedent.
d. demand fruits and damages from one unlawfully detaining property 2.
in concept of holder – usufruct, lessee, bailee
3.
in oneself – personal acquisition
a.
intent to possess
c.
possibility to acquire possession
Acquisition
4. in name of another – agent; subject to authority and ratification if not authorized; negotiorum gestio
1. cannot be acquired through force or intimidation when a possessor objects thereto – resort to courts
a. representative has intention to acquire for another and not for himself
2. the following do not affect acts of possession ( not deemed abandonment of rights ); possession not interrupted
b. person from whom it is acquired has intention of possessing it 5. in good faith – not aware that there exist flaw in title or mode w/c invalidates it; mistake upon doubtful question of law; always presumed; it may be interrupted – by extraneous evidence or suit for recovery of property of true owner 6.
may acquire material possession but not right to possession; may only acquire them through guardian or legal representatives
he must have capacity to acquire possession
b.
Minors/ Incapacitated
in bad faith – aware of defect
Possession through succession
a.
acts merely tolerated
b.
clandestine and unknown acts
c.
acts of violence
Rights of possessor: 1. Right to be respected in his possession; if disturbed – protected by means established by law; spoliation 2. Possession acquired and enjoyed in concept of owner can serve as title for acquisitive prescription a. Possession has to be in concept of owner, public, peaceful and uninterrupted b.
Title short of ownership
21
3. Person in concept of owner has in his favor the legal presumption of just title (prima facie)
principal is not injured – provided owner does not refund the amount expended
4. Possession of real property presumes that movables are included
12. Improvements caused by nature or time to inure to the benefit of person who has succeeded in recovering possession
5. Co-possessors deemed to have exclusively possessed part which may be allotted to him; interruption in whole or in part shall be to the prejudice of all
13. Wild animals possessed while in one’s control; domesticated – possessed if they retain habit of returning back home
6. Possessor in good faith entitled to fruits received before possession is legally interrupted ( natural and industrial – gathered or severed; civil – accrue daily )
14. One who recovers, according to law, possession unjustly lost is deemed to have enjoyed it w/o interruption
7. Possessor in good faith entitled to part of net harvest and part of expenses of cultivation if there are natural or industrial fruits ( proportionate to time of possession ); owner has option to require possessor to finish cultivation and gathering of fruits and give net proceeds as indemnity for his part of expenses; if possessor in good faith refuses – barred from indemnification in other manner
1. Return of fruits if in bad faith – fruits legitimate possessor could have received 2.
10. Possessor in good faith may remove improvements if can be done w/o damage to principal thing- unless owner exercises option of paying; possessor in bad faith not entitled. 11. Possessor in good faith and bad faith may not be entitled to payment for luxurious expense but may remove them provided
Bear cost of litigation
3. Possessor in good faith not liable for loss or deterioration or loss except when fraud and negligence intervened
8. Possessor has right to be indemnified for necessary expenses whether in good faith or in bad faith; Possessor in good faith has right of retention over thing unless necessary expenses paid by owner 9. Possessor in good faith has right to be reimbursed for useful expenses with right of retention; owner has option of paying expenses or paying the increase in value of property which thing acquired by reason of useful expenses
Liabilities/duties of Possessor
4. Possessor in bad faith liable for loss or deterioration even if caused by fortuitous event 5. Person who recovers possession not obliged to pay for improvements which have ceased to exist at time of occupation
Loss of possession: 1. abandonment of the thing – renunciation of right; intent to lose the thing 2.
assignment made to another by onerous or gratuitous title
3. destruction or total loss of the thing or thing went out of commerce
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Title VI: USUFRUCT
4. possession of another if new possession lasted longer that 1 year ( possession as a fact); real right of possession not lost except after 10 years
Usufruct – right to enjoy another’s property with correlative duty of preserving its form and substance a.
things – movable/immovable
b.
rights – provided it is not strictly personal
Not lost: 1. Even for time being he may not know their whereabouts, possession of movable is not deemed lost 2. When agent encumbered property authority – except when ratified 3.
without
express
Possession may still be recovered:
Kinds: 1.
legal - parents over children
2.
voluntary – contracts, wills
3.
mixed – prescription
4.
total
a. Unlawfully deprived or lost b. Acquired at public sale in good faith – with reimbursement
5.
partial
6.
simultaneous
c. Provision of law enabling the apparent owner to dispose as if he is owner
7.
successive
8.
pure
9.
conditional
10.
With a term
d. Sale under order of the court e. Purchases made at merchant stores, fairs or markets f. Negotiable document of title
Rights of usufructuary:
1. Right to civil, natural & industrial fruits of property
Possession is equivalent to title 2. Right to hidden treasure as stranger
a. possession is in good faith b. owner has voluntarily parted with the possession of the thing c. possessor is in concept of an owner
3. Right to transfer usufructuary rights – gratuitous or onerous; but is coterminus with term of usufruct; fruits proportionate at duration of usufruct; but can’t do acts of ownership such as alienation or conveyance except when property is: 23
b. intended for sale
14. Right to introduce useful & luxurious expenses but with no obligation of reimbursement on part of owner; may remove improvement if can be done w/o damage
c. appraised when delivered; if not appraised & consumable – return same quality (mutuum)
15. Right to set-off improvements against damages he made against the property
4. Right not exempt from execution and can be sold at public auction by owner
16. Right to administer when property is co-owned; if co-ownership cease – usufruct of part allotted to co-owner belongs to usufructuary – not affected
5. Naked owner still have rights but w/o prejudice to usufructuary; may still exercise act of ownership –bring action to preserve
17. Right to demand the increase in value of property if owner did not spend for extraordinary repairs when urgent & necessary for preservation of thing
a. consumable
6. Right to fruits growing at time usufruct begins; growing fruits at termination of usufruct belongs to owner
Rights of naked owner
1. Alienate thing 7. Right to necessary expenses from cultivation at end of usufruct 2. Can’t alter form or substance 8. Right to enjoy accessions & servitudes in its favor & all benefits inherent therein
3. Can’t do anything prejudicial to usufructuary
9. Right to make use of dead trunks of fruit bearing trees & shrubs or those uprooted/cut by accident but obliged to plant anew
4. Construct any works Y make any improvement provided it does not diminish value or usufruct or prejudice right of usufructuary
10. Right of usufructuary of woodland – ordinary cutting as owner does habitually or custom of place; cannot cut down trees unless it is for the restoration of improvement of things in usufruct – must notify owner first
Obligations of usufructuary:
11. Right to leave dead, uprooted trees at the disposal of owner with right to demand that owner should clear & remove them – if caused by calamity or extraordinary event – impossible to replace them
1. Pay expenses to 3rd persons for cultivation & production at beginning of usufruct; whose who have right to fruits should reimburse expenses incurred
12. Right to oblige owner to give authority & furnish him proofs if usufruct is extended to recover real property or real right
2. Generally, usufructuary has no liability when due to wear & tear, thing deteriorates, obliged to return in that state; except when there is fraud or negligence, then he shall be liable
13. Right to necessary expenses 24
3. Before entering into usufructuary:: a) Notice of inventory of property (appraisal of movables & description) b) Posting of security 1. not applicable to parents who are usufructuary of children except when nd 2 marriage contracted 2. excused – allowed by owner, not required by law or no one will be injured
failure to give security: owner may demand that:
a. immovables be placed under administration b. NI can be converted into registered certificates or deposited in bank c. Capital & proceeds of sale of movables be invested in safe securities d. Interest on proceeds or property under admin belong to usufructuary
7. Obliged to make ordinary repairs – wear & tear due to natural use of thing and are indispensable for preservation; owner may m ake them at expense of usufructuary – during existence of usufruct 8. Obliged to make expenses due to his fault; cannot escape by renouncing usufruct 9. Pay legal interest from extraordinary expenses made by owner 10. Payment of expenses, charges & taxes affecting fruits 11. Payment of interest on amount paid by owner charges on capital rd
12. Obliged to notify owner of act of 3 person prejudicial to rights of ownership – he is liable if he does not do so for damages – as if it was caused through his own fault 13. Expenses, cost & liabilities in suits brought with regard to usufructuary – borne by usufructuary
e. Owner may retain property as administrator w/ obligation to deliver fruits to usufructuary until he gives sufficient security
f. Effect of security is retroactive to day he is entitled to fruits 4. Take care of property as a good father of family
Obligations of owner
1. extraordinary expenses; usufructuary obliged to inform owner when urgent is the need to make them
5. Liable for negligence & fault of person who substitute him
2. expenses after renunciation of usufruct
6. If usufruct is constituted on animals – duty bound to replace dead animals that die from natural causes or became prey; if all of them perish w/o fault but due to contagious disease / uncommon event – deliver remains saved; if perish in part due to accident – continue on remaining portion; if on sterile animals – as if fungible – replace same kind & quality
3. taxes & expenses imposed directly on capital 4. if property is mortgaged, usufructuary has no obligation to pay mortgage; if attached, owner to be liable for whatever is lost by usufructuary 5. if property is expropriated for public use – owner obliged to either replace it or pay legal interest to usufructuary of net proceeds of the same 25
Extinguishment of usufruct
at termination of usufruct:
thing to be delivered to owner with right of retention for taxes & extraordinary expenses w/c should be reimbursed
security of mortgage shall be cancelled
1. death of usufructuary – unless contrary intention appears 2. expiration of period of usufruct
BOOK III. DIFFERENT MODES OF ACQUIRING OWNERSHIP 3. merger of usufruct & ownership 4. renunciation of usufructuary – express
Different Modes of acquiring ownership:
5. total loss of thing
1) Occupation
6. termination of right of person constituting usufruct
2) Donation
rd
7. prescription – use by 3 person
3) Prescription 4) Succession
loss in part – remaining part shall continue to be held in usufruct
usufruct cannot be constituted in favor of a town, Corp or assoc. for more than 50 years
usufruct constituted on immovable whereby a building is erected - & building is destroyed – right to make use of land & materials
if owner wishes to construct a new building – pay usufructuary the value of interest of land & materials
both share in insurance if both pays premium; if only owner – then proceeds will go to owner only
effect if bad use of the thing – owner may demand the delivery of and administration of the thing with responsibility to deliver net fruits to usufructuary
5) Tradition
MODE – Proximate cause of ownership ( sales, donation)
TITLE – Remote cause of ownership; merely constituted the m eans
OCCUPATION 1. There should be a corporeal thing (tangible) which must have a “corpus” (body) & that thing should have no owner
2. There must be actual occupancy; thing must be subjected to one’s control/disposition 3. There must e an intention to occupy 4. Accomplished according to legal rules
26
b.)
What are the things susceptible to occupation?
things that are w/o owner – res nullius; abandoned
stolen property cannot be subject of occupation
animals that are the object of hunting & fishing
-
c)
Domesticated animals may be redeemed within 20 days from occupation of another person; if no redemption made, they shall pertain to the one who caught them
Pigeons & fish -
when they go to another breeding place, they shall be owned by the new owner provided they are not enticed
kinds of animals: a) wild – considered res nullius when not yet captured; when captured
& escaped – become res nullius again b) domesticated animals – originally wild but have been captured & tamed; now belong to their capturer; has habit of returning to premises of owner; becomes res nullius if they lose that habit of returning & regain their original state of freedom
1) Treasure found on another’s property -
c) domestic/tame animals – born & ordinarily raised under the care of people;2) become res nullius when abandoned by owner
hidden treasure (only when found on things not belonging to anyone)
abandoned movables
-
-
Swarm of bees
owner shall have right to pursue them to another’s land (owner to identify latter for damages, if any)
consist of (1) money, precious objects & 2) hidden & owner is unknown finding must be by chance in order that stranger may be entitled to ½ of the treasure Movable found w/c is not treasure
-
must be returned to owner
-
if finder retains the thing found – may be charged with theft
-
if owner is unknown, give to mayor; mayor shall announce finding of the movable for 2 weeks in way he deems best
-
of owner does not appear 6 months after publication, thing found shall be awarded to finder
-
if owner appears, he is obliged to pay 1/10 of value of property to finder as price
Animals: a)
Movables:
land owner shall occupy/retain the bees if after 2 days, owner did not pursue the bees 27
-
if movable is perishable or cannot be kept w/o deterioration or w/o expenses it shall be sold at public auction 8 days after the publication
Against whom prescription run:
1.
minors & incapacitated person who have guardians
2.
absentees who have administrators
3.
persons living abroad who have administrators
4.
juridical persons except the state with regards to property not patrimonial in character
5.
between husbands & wife
What cannot be acquired by occupation Ownership of a piece of land
because when a land is without an owner, it pertains to the state
land that does not belong to anyone is presumed to be public land
but when a property is private and it is abandoned – can be object of6. occupation 7. PRESCRIPTION mode by which one acquires ownership and other real rights thru lapse of 8.
between parents & children (during minority/insanity) between guardian & ward (during guardianship)
time; also a means by which one loses ownership, rights & actions; retroactive from the moment period began to run
9.
between owner of property & person in possession of property in concept of holder
Kinds: 1. Acquisitive 2.
between co-heirs/co-owners
Extinctive
Who may acquire by prescription:
Things subject to prescription: all things within the commerce of men
a. private property b. patrimonial property of the state
a. person who are capable of acquiring property by other legal modes Things not subject to prescription:
b. STATE
c. minors – through guardians of personally
1. public domain 2. in transmissible rights 28
3. movables possessed through a crime
3. within time fixed by law
4. registered land
4 years for movables
8 years for immovables
Renunciation of prescription:
persons with capacity to alienate may renounce prescription already obtained but not the right to prescribe in the future
may be express or tacit
prescription is deemed to have been tacitly renounced; renunciation results from the acts w/c imply abandonment of right acquired
creditors & persons interested in making prescription effective may avail themselves notwithstanding express or tacit renunciation
4. in concept of an owner 5. public, peaceful, uninterrupted
PRESCRIPTION OF OWNERSHIP & OTHER REAL RIGHTS
Kinds of Acquisitive prescription
1. 2.
Requisites for extra-ordinary prescription: just title is proved within time fixed by law
10 years for movables
30 years for immovables
3. in concept of an owner 4. public, peaceful, uninterrupted
1. ordinary 2. extra-ordinary
Requisites for ordinary prescription:
GOOD FAITH
Reasonable belief that person who transferred thing is the owner & could validly transmit ownership
Must exist throughout the entire period required for prescription
1. possession in good faith 2. just title 29
JUST TITLE (TRUE & VALID) – must be proved & never presumed
a)
Titulo Colorado -
b)
Titulo putativo
title must be one which would have been sufficient to transfer ownership if grantor had been the owner
through one of the modes of transferring ownership but there is vice/defect in capacity of grantor to transmit ownership
IN CONCEPT OF OWNER
-
through any cause, possession ceases for more than 1 year
-
if 1 year of less – as if no interruption
b) -
b)
possession not by mere tolerance of owner but adverse to that of the owner c)
claim that he owns the property
PUBLIC, PEACEFUL & UNINTERRUPTED
a)
1.
void for lack of legal solemnities
2.
plaintiff desist from complaint/allow proceedings to lapse
3.
possessor is absolved from complaint
possession in wartime
RULES IN COMPUTATION OF PERIOD:
a. Present possessor may tack his possession to that of his grantor or predecessor in interest
Must be known to the owner of the thing
Acquired
produced by judicial summons; except
express or tacit renunciation
civil
& maintained w/o violence
Uninterrupted (no act of deprivation by others) in the enjoyment of property
b. Present possessor presumed to be in continuous possession I intervening time unless contrary is proved c. First day excluded, last day included
INTERRUPTION Natural 30
