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B A S I C P R I N C I P L E S : LAW ON PROPERTY
Compiled and discussed by ATTY. ED C. BATACAN
PROPERTY, concept of: (Civil law concept) – All t hings whether tangible [physical objects] or intangible [rights] which are or may be the object of appropriation. (See Art. 414 NCC).
conditions conditions are met: a) The parties mutually agree to consider the real property [i.e. house], a personalty; and b) That no innocent third person shall be prejudiced thereby.
It follows that those which cannot be appropriated are not considered property. [i.e. stars, moon, air, planets, etc.]
The validity of the chattel mortgage constituted on a house cannot be questioned by the owner of the house because he is placed under estoppel from denying the existence of the chattel mortgage.
However, in Escano vs. Gil [CA] [CA] February 11, 1958, it was held that the right to office, though not a vested property right, in a technical sense, is property. An office may be considered as property in controversies relating to the question as to which of two persons is entitled thereto. In Cornejo vs. Gabriel, 41 Phil. 200 , it was ruled that property, under the due process clause of the Constitution, includes the right to hold, occupy and exercise an office. What is appropriation? appropriation? The New Civil Law Code does not define what appropriation is, but it has been considered as equivalent to occupation, occupation, which is the willful apprehension of a corporeal object which has no owner, and with intent to acquire its ownership. PROPERTY, classification of: (See of: (See Art. 414, NCC) § §
Immovable or real property; Movable or Movable or personal property.
Why is there importance to classify? classify? Because different provisions provisions of the law govern the acquisition, acquisition , possession possession, disposition, disposition, loss and registration of registration of immovable and movable. For example: a.
b.
c.
Donations of real property (like land) must be in a public instrument, otherwise the alienation will be null and void even as between the parties. On the other hand, the donation of a movable (like movable (like a ring valued at say P5,000.00), P5,000.00), needs only only to be in a private instrument. (see Art. 748, NCC). The owner ownership ship over a real real proper property ty may be acquire acquiredd by prescription (see Art. 1137) in 30 years (bad faith); whereas, acquisition of personal property in bad faith needs only 8 years (see Art. 1132, NCC). Generally Generally,, to affe affect ct third third persons persons,, transac transactio tions ns involv involving ing real property must be recorded in the Registry of Property; this is not so in the case of personal property.
In Tsai vs. Court Of Appeals, 366 SCRA 324, 324 , it was held that the nature of the disputed machineries, i.e., that they were heavy, bolted or cemented on the real property mortgaged, does not make them ipso facto immovable under Article 415 (3) and (5) of the New Civil Code, as the parties’ intent has to be looked into. While it is true that the controverted properties appear to be immobile, a perusal of the Contract of Real and Chatttel Mortgage executed by the parties show a contrary indication. In the case at bar, the intention of the parties is to treat the said machineries and equipment as chattels. The parties executed a Real Estate Mortgage and Chattel Mortgage, instead of just Real Estate Mortgage if indeed their intention is to treat all the properties included therein as immovable. Also attached to the said contract is a separate “List of Machineries and Equipment”. These facts evince the conclusion that the parties intend to treat the machineries as chattels. QUESTION: QUESTION: May a building subjected to a chattel mortgage be sold extra-judicially in accordance with the provisions of Real Estate Mortgage Law? A: In Luna vs. Encarnacion, 91 Phil 531, 531, it was held that a building subjected to chattel mortgage cannot be sold extra judicially under under the provisions of Act 3135 since the Article refers only to real estate mortgage. In Manarang vs. Ofilada, 99 Phil 108 , it was ruled that auction sales on execution upon judgment, the building or house shall be treated as real property, and therefore, the rule on foreclosure of real estate mortgage must be followed.
IMMOVABLE PROPERTY Classes of Immovable (IN GENERAL): GENERAL): a)
Immovables by nature nature - those which cannot be moved from place to place because of their nature, such as land (par 1 Art. 415), mines, quarries and slag dumps (par 8, Art. 415);
b)
Immovables by incorporation incorporation - those which are essentially movables, but are attached to an immovable in such manner as to become an integral part thereof. [Examples: those mentioned in par 1, 2, 3, 4 & 6, Art. 415, except land, buildings and roads];
c)
Immovables by destination destination - those which are essentially movables, movables, but by the purpose for which they have been placed in an immovable, partake the nature of the latter because of the added utility derived
QUESTION: QUESTION: May parties by agreement treat treat as personal property that which by classification classification under the law be real property? A: Technically, it would seem that under the Civil Code, it is only the LAW which may consider certain real property (like growing crops) as personal property for the purpose of making a chattel mortgage. (See Art. 416, par.2). Also, for purposes of taxation, improvements on real property which are essentially movables may be considered as subject to real property tax. However, in Evangelista vs. Abad, 36 O.G. 2913 and Navarro vs. Pineda, 9 SCRA 631, 631, the Supreme Court ruled that a real property may be treated as personal property provided that two
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therefrom, such as those mentioned in pars 4, 6, 7 & 9 of Art. 415); d)
Art. 415. The following are immovable property: PARAGRAPH 1: 1: Land, buildings, roads constructions of all kinds adhered to the soil.
and
REMINDERS : LAND: LAND:
Land by by its very nature is immovable. And even, if land is moved by an earthquake or an extra-ordinary happening, the land should still still be considered considered immovable. A truckload of soil soil [i.e. garden soil] should be considered personal property since there is no longer adherence to the soil. Even if land is rented, it is still considered as immovable. ·
BUILDINGS: BUILDINGS:
Buildings of permanent of permanent structure structure are always classified as immovable. It is immaterial whether it is built on a rented or owned land. The nature of the building as property does not depend on the way the parties deal with it [see: Leung Yee vs Strong Machinery Co. 37 Phil. 664.] Buildings are considered immovable provided provided they are more or less permanent substantially substantially adhering to the land, and not not mere super-impositions on the law. In Luna vs Encarnacion, it was held that a structure which is merely superimposed on a land like a temporary shelter for workers is not real or immovable property. ·
1.
Even if the the land land is being being lease leasedd by another, another, and the fruits belong to the t enant, the fruits are still considered as immovable because no exception or qualification is made under the Civil Code.
2.
However, However, when the fruits fruits althou although gh ungathe ungathered red are are sold sold,, as when the entire harvest is sold before being actually gathered, it is considered as a sale of movables. [Mobilized by anticipation] anticipation]
Immovables by analogy or by law - those mentioned in par 10, Art. 415; right of usufruct; easements and servitudes.
Classes of Immovables (SPECIFICALLY):
·
Rule on ungathered fruits:
CONSTRUCTIONS: CONSTRUCTIONS:
It is understood that the attachment must be more or less permanent. A wall or a fence is good example of this kind of immovable by incorporation. As long as there is an intent to permanently annex the same, it is immaterial whether the materials used is only made of stone. Railroad tracks or rails come under this category. Wooden scaffoldings scaffoldings on which carpenters stand while constructing a house are merely personal property in view of the lack of “adherence” to the soil or the intent to permanently annex the same to the soil. PAR. 2: Trees, plants and growing crops, while they are attached to the land or form an integral part of an immovable. Trees and plants no matter what their size may be are considered real property. By nature - if they are the spontaneous products of the soil, and by incorporation - if they were planted thru labor. But the moment they are detached or uprooted from the land, they become personal property, except in the case of uprooted timber , if the land is timberland, because although no longer attached, the timber still forms an “integral part” of the timberland.
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In Sibal vs. Valdez, 50 Phil 512 , the Supreme Court held that for purposes of attachment and execution, execution, and for for purposes of the Chattel Mortgage Law, ungathered products have the nature of personal property. PAR. 3: Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object. Under this paragraph, for the incorporated thing to be considered real property, the injury or breakage or deterioration in case of separation, must be substantial . [Examples: A fixed fire escape stairway firmly embedded in the walls of the house; aqueduct; or a sewer or a well. In CBAA vs. MERALCO, 119 Phil. 328 , it was ruled that the steel towers of MERALCO not attached to an immovable in a fixed manner are not realty and therefore, not subject to realty tax. The towers can be separated from the ground without breaking or causing deterioration upon the object to which they are attached. However, in Caltex vs. CBAA, 114 SCRA 273, 273, it was held that storage tanks installed on land leased from Caltex are subject to realty tax, they being improvements on realty . In Berkenkotter vs. Cu Unjieng, 61 Phil 683, 683, it was ruled that machinery for breweries utilized in the liquor or soft-drink manufacturing, though movable in nature, are immobilized by destination being essential to said industry. In Mindanao Bus Co. vs. City Assessor, 116 Phil 501, 501 , it was held that machinery of a transportation company such as welding, boring machine, lathe machine “sitting on a cement platform” which are not essential to the t ransportation business business of the owner of the tenement do not constitute realty. Effect of separation: separation: If the thing incorporated is temporarily removed with the intention to replace the same, the thing is considered as personal property because the incorporation had ceased. The material fact of incorporation or separation is what determines the condition of the tenement; it recovers its status as movables, irrespective of the intention of the owner. PAR. 4: Statues, reliefs, paintings or other objects for use or ornamentation, placed in building or on land by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements. These are immovables both by incorporation and by destination destination .
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Example: Example: A fixed f ixed statue in the garden of the house; a permanent painting on the ceiling; a picture embedded in the concrete walls of a house; a rug or carpet fastened to the floor (wall-to-wall carpeting). The objects must be placed by the owner of the immovable (buildings or lands) and not necessarily the owner of the object. If placed by a mere tenant, the objects must remain chattels or personalty (See: Davao Sawmill vs. Castillo, 61 Phil 709). 709). However, in Valdez vs. Central Altagracia, 255 U.S. 58 , it was held that where the owner of a tenement entered into a contract with a lessee, stipulating that the lessee shall place certain objects in the property leased, and that such objects shall remain with the property upon the termination of the lease, without any obligation on the part of the owner to reimburse the lessee, the tenant acts as an agent of the owner in giving by contract a permanent destination to them. Effect of separation: In Ago vs. Court of Appeals, 6 SCRA 530 , it was held that the moment these objects are separated from the land or building or from the industry or works, they regain back their condition as personal property. PAR. 5: 5: Machinery, receptacles, instruments, or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works. These are immovables by purpose or destination. destination. Essential requisites: requisites: 1.
2. 3.
The placin placingg must must be be made made by by the the owner owner of the the tenement, his agent, or duly authorized legal representative; The indust industry ry or works must must be carri carried ed on in the the buildi building ng or on the land; The mach machines ines,, etc. etc. must must tend direct directly ly to meet meet the the needs of said industry, and not merely incidental.
In Mindanao Bus Co. vs. City Assessor, 116 Phil 501, 501 , it was ruled that a transportation business is not carried on in a building or in the compound. compound. Cash registers, registers, typewriters, typewriters, etc. usually usually found and used in hotels, restaurants, theaters, etc., are merely incidentals, and should not be considered immobilized by destination for these business can continue or carry on their functions without these equipments. The same applies to the repair or service shop of the transportation business because the vehicles may be repaired or serviced in another shop belonging to another. In Berkenkotter vs. Cu Unjieng, 61 Phil 663, 663, the Supreme Court held: “Machinery intended by the owner of any building or land for the use in connection with any industry or trade being carried on therein and which are expressly adapted to meet the requirements of such trade, are considered as real property. If the installation of the machinery and equipment in question in the central converted them into real property by reason of their purpose, it cannot be said that their incorporation therewith was not permanent in character because, as essential and principal
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elements of a sugar central, without them the sugar central would be unable to function or carry on the industrial purpose for which it was established. The new machinery must, therefore, be considered as subject to the real estate mortgage in favor of the defendant.” Effect of separation: separation: If the machines are still in the building, but no longer used in the industry conducted therein, the machines revert to the condition of a chattel. The moment they are separated from the purpose of the industry (not necessarily from the immovable), they recover their (not necessarily from the immovable), they recover recover their condition condition as movables (see: Ago vs. Court of Appeals, 6 SCRA 530 ). ). On the other hand, if still needed for the industry, but separated from the tenement temporarily, the property continues to be immovable, inasmuch as par. 5 refers not to real property by incorporation, but to real property by destination or purpose. PAR. 6: 6: Animal houses, pigeon-houses, beehives, fishponds or breeding places or similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent permanent part of it; the animals in these places are in cluded. The houses referred to here may already be deemed included in par. 1 when speaking of “constructions of all kinds adhered to the soil.” Even if the animals are temporarily outside, they may still be considered as real property as long as the intent to return is present, as in case of a homing pigeon. But from the viewpoint of criminal law, they are considered as personal property and may properly be the objects of theft or robbery. robbery. When the animals inside the permanent animal houses are alienated onerously or gratuitously, the transaction is an alienation of personal property, unless the building or the tenement itself is also alienated . This is because in said alienation, the animal structures must of necessity be detached from the immovable. Hence an ordinary inter-vivos donation of a pigeon-house need not be in a public instrument. PAR. 7: Fertilizers actually used on a piece of land. Fertilizers still in the barn and even those already on the ground but wrapped inside some newspapers or any other covering are still to be considered personal property, for they have not yet been “actually” used or spread over the land. The fertilizers should be on the land where they are to be utilized, because it is only that the intention of the owner to use them on the tenement is beyond doubt. Hence, fertilizers kept in the farmhouse are not immovable. immovable. PAR. 8: Mines, quarries, and slag dumps while the matter thereof forms part of the bed, and waters, either running or stagnant. Mines, including the minerals still attached thereto, are real properties, but when the minerals have been extracted, extracted, the latter latter become chattels. Slag dump is the dirt and soil taken from a mine and piled upon the surface of the ground. Inside the “ dump” dump” can be found the minerals.
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The “waters “waters”” referred to are those still attached to or running thru the soil or ground. But the “water” itself as distinguished from “waters” is clearly personal personal property. On the other other hand, canals, canals, rivers, lakes, and such part of the sea as may be the object of appropriation, are classified as real property. PAR. 9: Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, or coast. A floating house tied to a shore or bank post and used as a residence is considered real property, considering that the “waters” on which it f loats, are considered immovables. immovables. In a way, we may say that the classification of the accessory (the floating house) follows the classification of the principal (the waters). However, if the floating house makes it a point to travel from place to place, it assumes the category of a vessel. By express provision of Art. 585 of the Code of Commerce, vessels are movable property; but they partake, to a certain extent, of the nature and conditions of the property, on account of their value and importance in the world of commerce. (See: Rubiso vs. Rivera, 37 Phil. 72 ) Vessels are considered personal property. As a matter of fact, they are indeed very movable, (see: PRC vs. Jarque, 61 Phil 229) 229) because they are personal property, they may be the subject of the chattel mortgage. (See: McMicking vs. Espanol- Filipino, 13 Phil 429; 429; Arroyo vs. Yu de Sane, Sane, 54 Phil 7 ) PAR. 10: Contracts for public works, w orks, and servitudes and other real rights over immovable property.
MOVABLE PROPERTY Art. 416. The following things are deemed to be personal property: 1.
Examples: cell phones; money; ring; cars. 2.
Other real rights over real property include real estate mortgage, antichresis, possessory retention, usufruct, leases of real property, if registered; or even if not registered, if their duration is for more than a year. Usufruct of personal property or a lease of personal property should be considered personal property. In the case of Presbitero vs. Fernandez (March 30, 1958), 1958), the Supreme Court held that sugar quotas are real property, for they are by law considered “real rights over immovable property” just like servitudes and easements. Court jurisdiction: In Cabutihan vs. LCDC, 383 SCRA SCRA 353, 353, it was held that that actions affecting affecting title to or possession possession of of real property or an interest therein shall be commenced and tried in the proper court court that has territorial jurisdiction jurisdiction over over the area where the real property is situated.
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Real property which by any special provision of law is is considered as personalty.
Examples: Growing crops for the purpose of the Chattel Mortgage Law (see: Sibal vs. Valdez, 50 Phil. 512 ); ); machinery placed on a tenement by a tenant, who did not act as the agent of the tenement owner (see: Davao Sawmill vs. Castillo, 61 Phil. 709). 709). 3.
Forces of nature which are brought under control by science.
Examples: Electricity, gas, light, nitrogen (see: US vs. Carlos, 21 Phil. 543). 543 ). 4.
In general, general, all things which can be transported transported from from place to place without impairment of the real property to which they are fixed.
Examples: Machinery not attached to land or needed for the carrying on of an industry conducted therein. Test to determine whether property is movable or immovable: a)
The properties referred to in this paragraph are not material things but rights, which which are necessarily intangible. The piece piece of paper on which the contract for the public works has been written is necessarily personal property, but the contract itself, or the right of the contract is real property. A servitude or easement is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner, or for the benefit of a person, group of persons, or a community [ex. Easement Easement of right of way].
Those movables susceptible of appropriation which are not included in th e preceding article.
b)
c)
If the property property is is capable capable of being being carrie carriedd from place place to place. (Test by description) If such such change change in in locatio locationn can be made made withou withoutt injuring injuring the real property to which it may in the meantime be attached. (Test by description) description) And ifif finally finally,, the object object is is not one of those those enumera enumerated ted or included in Art. 415. (Test by exclusion) exclusion)
(If the answer is YES) Then the inevitable conclusion is that the property is personal property. Note: Note: Test by exclusion is superior to test by description. Art. 417. The following are also considered as personal property: 1.) Obligations and actions actions which have have for their their object movables or demandable sums. REMINDERS: The term obligations really obligations really refers to ”credits” and also includes bonds, bonds, which are technically technically obligations of the entity issuing them; Actions Actions – if somebody steals my car, my right to bring action to recover the automobile is personal property by itself; A promissory note is a personal property; the right to collect it is also a personal property. 2)
Shares of stock of agricultural, agricultural, commercial and industrial entities, although they may have real estate.
Although the provisions of of par. 2 seem to refer only to corporations by the words “shares of stocks”, and only to those engaged in agriculture, commerce, and industry, nevertheless, all juridical persons must must be deemed included.
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A share of stock in a gold mining corporation is also personal property; but the gold mine itself, and any land of the corporation, are regarded as real property by the law. The certificate evidencing ownership of the share, and the share itself, are regarded as personal property. Being personal, they may be the object of a chattel mortgage (see: Chua Guan vs. Samahang Magsasaka, Inc. 62 Phil. 472) A half interest in drugstore business is personal property capable of being the subject of a chattel mortgage (see: Strochecher vs. Ramirez, 44 Phil. 933). However, a half-interest in a drugstore, considered as a building (not a business) is a real right in real property and is therefore by itself a real property. In Hongkong and Shanghai Bank vs. Aldecoa, 30 Phil 255 , it was held that real estate mortgages are realty and not personalty.
PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS Art. 419. Property is either of public dominion or of private ownership. The State may own properties both in its public capacity (public dominion) and private capacity (patrimonial). §
Public dominion – ownership by the state in its public capacity or in the exercise of its governmental functions.
§
Patrimonial – ownership by the State in its private capacity or in the course of its proprietary functions. This is the property over which the State has the same rights, and for which it may dispose, to the same extent as private individuals in relation to their property, subject only to the administrative laws and regulations on the procedure of exercising such rights. They exist for the State to attain its economic ends, as a means for its subsistence, and the preservation of its natural organism.
What are properties of public dominion? [see Art 420, NCC] a.
b.
Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the state, banks, shores, roadsteads, and others of similar character; Those which belong to the state, without being for public use, and are intended for some public service or for the development of the national wealth.
In Usero vs. CA, 353 SCRA 449, the SC held that the phrase “others of similar character” includes a creek which is a recess or an arm of a river. It is property belonging to the public domain which is not susceptible to private ownership. Being public water, a creek cannot be registered under the Torrens System in the name of any individual. Characteristics: 1. 2.
They may be real or personal; They cannot be levied or attached; [Tan Toco vs. Mun. Council of Iloilo, 49 Phil 52 ];
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3. 4. 5. 6.
They cannot be registered under the Land Registration Law; They cannot be acquired by prescription [Harty vs. Mun. of Victoria, 13 Phil. 152 ]; They are outside the commerce of man [Mun. of Cavite vs Rojas, 30 Phil 20 ]; They cannot be burdened by any voluntary easement.
Property for PUBLIC USE , defined: It can be used by everybody, even by strangers or aliens in accordance with its nature; but nobody can exercise over it the rights of a private owner. Thus, no private person can have a property right in the use of a street for his private business, nor can he acquire over such a right to possession as would require the exercise of possessory actions. In Republic vs. Gonzales, 199 SCRA 788 , it was held that: the conception urged by appellants to restrict property reserved for public use to include only property susceptible of being used by a generally unlimited number of people is flawed and obsolete, since the number of the users is not the yardstick in determining whether property is properly reserved for public use or benefit. To constitute public use, the public in general should have equal or common rights to use the land or facility involved on the same terms, however limited in the number of people who can actually avail themselves of it at a given time. There is nothing in the law which excludes non-car owners from using a widened street or a parking area should they in fact happen to be driving cars. The opportunity to avail of the use thereof remains open for the public in general. In Villarico vs. Sarmiento, 110 SCRA 442 , the SC ruled that: “Public use is use that is not confined to privileged individuals but is open to the indefinite public. Records show that the lot on which the stairways were built is for the use of the people as passageway to the highway. Consequently, it is a property of public dominion.” Property for PUBLIC SERVICE: - This kind of property includes all property devoted for public service. In Baguio Citizens Action vs. City Council, 121 SCRA 368 , it was held that all public buildings constructed by the State for its offices and functionaries belong to this class. QUESTION: Are rivers whether navigable or not, properties of public dominion? A: It would seem that Art. 420 NCC makes no distinction. However, in Palanca vs. Commonwealth, 40 OG 148 , the Supreme Court said: “The river Viray and the estero Sapang Sedoria, being navigable, useful for commerce, for navigation, and fishing, they have the character of public domain.” In Taleon vs. Secretary of Public Works, L-24281, May 16, 1967 , it was held that if a river is capable in its natural state of being used for commerce, it is navigable in fact, and therefore, becomes a public river. In Martinez vs. Court of Appeals, 56 SRCA 647 , it was held that navigable rivers are outside the commerce of man and therefore cannot be registered under the Land Registration Law. If converted into fishponds, the latter can be demolished
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notwithstanding the title, for said title cannot convert the streams into private ones. In Mercado vs. Municipal President of Macabebe, 59 Phil 592 , it was ruled that creeks which are mere extensions of rivers are considered property of public domain.
CONVERSION
thing, but also in the right to use and utilize the same according to its natural destination and in the right, besides, to make the thing serve one’s necessities, one’s pleasures, and even, within the letter and spirit of the law, personal whims. QUESTION: If a land has been foreclosed by the mortgagee, does the mortgagor still have the right to enjoy his foreclosed property?
Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the state.
A: YES, but only during the period of redemption. In GSIS vs. CA, 377 SCRA 54, it was held that the mortgagor has the right to redeem his property, possession, use and enjoyment of the same during the period of redemption.
Note:
Limitations on ownership:
¬
¬
When change takes effect? Property of public dominion ceases to be such and becomes private property of the State only upon declaration by the government, thru the legislative or executive departments, to the effect that it is no longer needed for public use or public service. If the property has been intended for such use or service, and the government has not devoted it to other uses, or adopted any measure which amounted to a withdrawal thereof from public use or service, the same remains property for public use or service notwithstanding the fact that it is not actually devoted for public use or service. (See:Capitulo, et. al. vs. Aquino 53 OG 1 477 ) Who shall declare? In the case of Faustino vs. Dir. Of Lands, L-12958, May 30, 1960 , the Supreme Court, (citing Natividad vs. Dir. Of Lands, CA 37 OG 2905) said that only the executive and possibly the legislative departments have the authority and power to make the declaration that any land so gained by the sea is not necessary for purposes of public utility, or for the establishment of special industries. If no such declaration has been made by the said departments, the lot in question forms part of the public domain.
Consequently, until there is made a formal declaration on the part of the government thru the executive department or the legislature, the parcel in question continues to be part of the public domain and cannot be subject to acquisitive prescription. In Laurel vs. Garcia, 187 SCRA 799, the Supreme Court said : It is not for the President to convey valuable real property of the government on his or her own sole will. Any such conveyance must be authorized and approved by law enacted by Congress. It requires executive and legislative concurrence. See: Coaco vs. Bercilles, 66 SCRA 481.
1. 2. 3.
4.
Imposed by law : Easement of right of way; party wall; drainage. Imposed by state: Police power; Power of taxation; Power of eminent domain. Imposed by owner : In cases of lease, the owner cannot in the meantime physically occupy the property; (also pledges). Imposed by grantor : The donor may prohibit the donee from partitioning the property for a period not exceeding 20 years.
DOCTRINE OF SELF-HELP Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. This article was taken from Art. 227 of the German Civil Code which provides: An act impelled by legitimate necessity shall not be unlawful. Legitimate necessity consists in the defense indispensable to repel, personally or thru another, an actual or unjust situation. Principle of self-help: It is lawful to repel force by means of force. It implies that the state of things to be defended enjoys juridical protection. It is sort of self-defense, where the use of such necessary force to protect proprietary or possessory rights constitutes a justifying circumstance under the Penal Code. The actual invasion of property may be: a.
Mere disturbance of possession – force may be used against it at any time as long as it continues, even beyond the prescriptive period for an action of forcible entry. Thus if a ditch opened by Pedro in the land of Juan, the latter may close it or cover it by force at any time.
b.
Real dispossession – force, to regain possession can only be used immediately after the dispossession. Thus, if Juan without the permission of Pedro picks up a book belonging to the latter and runs off with it, Pedro can pursue Juan and recover the book by force .
See also: International Hardwood vs. Univ. of th e Philippines, August 13, 1991, 200 SCRA 554.
OWNERSHIP IN GENERAL Art. 427. Ownership may be exercised over things or rights. A person has the right to control a thing particularly in his possession, enjoyment, disposition, and recovery, subject to no restriction except those imposed by the law. Right to Enjoy: In Marcos vs. Endencia, 38 O.G. 855 , it was ruled that the right to enjoy consists not only in the right to collect the rents or fruits, in short, the benefits which accrue from the
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In German Management & Services, Inc. vs. CA, 177 SCRA 495 , it was held that the doctrine of self-help can only be
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exercised at the time of actual or threatened dispossession. When possession had already been lost, the owner must resort to judicial process for the recovery of property. In People vs. Segovia, 103 Phil 1162 , the SC ruled that the owner of the plants who shot an animal to death, out of vengeance is not justified under the rule. The proper move for him to do is to drive away the animal and then seek damages from the owner of the animal. For shooting and killing the animal, he can be convicted of malicious mischief. Nature of the aggression: The aggression must be illicit or unlawful. The right to self-help is not available against the exercise of right by another, such as when the latter executes an extra-judicial abatement of nuisance. Neither can it be used against the lawful exercise of the functions of a public official, such as a sheriff attaching property.
DOCTRINE OF ACTS IN A STATE OF NECESSITY Art. 432. the owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. This article, following the same principle of self-help contained in the second part of Article 429, allows the use of defensive force to preserve an existing situation, as against an external event which the passive subject is entitled to repel as much as an unlawful aggression by another. Examples of danger contemplated by this article are: the attack of animals, the spread of fire, the threat of flood, etc. The attacking animal, belonging to another may be killed by the victim; a house in the path of a fire may be demolished; and a dike may be destroyed at one point to prevent a flood over other places. The law permits the injury or destruction of things belonging to other provided this is necessary to avert a greater danger. Requisites: 1. 2. 3. 4.
Existence of an evil sought to be avoided; The injury feared is greater than that done to avoid it; That there be no other practical and less harmful means of preventing it; The means employed is necessary and indispensable to avert danger.
Effect of mistake: The right to act in a state of necessity depends upon the objective existence of the danger with the requisites provided by law. If through error , one believed himself to be in a state of necessity, or used means in excess of the requirements, his act would be illicit and the owner of the property used against him the defensive force authorized in Art. 429. Effect of negligence: The law does not require that the person acting in a state of necessity be free from negligence in the creation of such situation. Thus, if a person picks up an unknown object in a drug store and eats it, thinking it to be candy, and it
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turns out to be poison, he can lawfully drink any antidote he may find in the store, even without the consent of the owner. Basis of liability: The obligation to indemnity does not depend upon imputability. The basis of the liability is the benefit derived. Conflict of rights: The right of self-help under Article 429 is not available against an act in a state of necessity. Concept of just compensation Just compensation: The fair and full equivalent for the loss sustained (Mla. Railroad vs. Velasquez, 32 Phil 286 ). The market value of the condemned property plus consequential damages less consequential benefits ( Manila Railroad vs. Fabie, 17 Phil. 208 ); See also EPZA vs. Dulay, 149 SCRA 305 . QUESTION: May real property be subjected to an easement of right of way through expropriation? A: In Republic vs. PLDT, 26 SCRA 620 , the SC ruled that normally, expropriation deals with a transfer of title or ownership; there is nothing wrong, therefore, in imposing a burden less than the transfer of ownership. It is unquestionable that real property may through expropriation be subjected to an easement of right of way. QUESTION: In the event that the purpose of the expropriation is abandoned or withdrawn, is the previous owner entitled to reacquire the property? A: In Fery vs. Municipality of Cabanatuan, 42 Phil 28 , the SC ruled that if the decree granted full ownership to the petitioner, the latter remains the owner regardless of the disappearance or cessation of the public need for the property. If the grant of ownership or title is subject to the condition that it will revert to the owner when the purpose of the expropriation is terminated or abandoned, the original owner of the property would reacquire the property. FORMULA: Market value + consequential damages – consequential benefits. [MRR vs. Velasquez, 32 Phil 286 ] Illustration: PhP 10,000,000.00 + 2,000,000.00 PhP 12,000,000.00 1,000,000.00
PhP
11,000,000.00
market value of land consequential damages as when a building is demolished consequential benefits as when market value of his separate adjacent property increased amount of just compensation
RIGHT OF ACCESSION Art 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. Accession, meaning of: The right of a property owner to everything which is produced thereby or which is incorporated or attached thereto. “To the owner of the principal belongs the accessory .”
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ACCESSION DISCRETA (Produced) NATURAL Spontaneous products of the soil; The young and other products of animals
INDUSTR’L Those produced by lands of any kind thru cultivation or labor
CONTINUA (Incorporated) CIVIL Rents of buildings; Price of leases; Amount of perpetual or life annuities.
REAL INDT’L Building Planting Sowing
PERSONAL
NATURAL Alluvium Avulsion Change of course of rivers formation of islands
REMINDER: Instances when the owner of land does not own the fruits: §
Possessor in good faith of the land . (He owns the fruits already received.) (see : Art 544, par 1)
§
Usufruct . The usufructuary owns the fruits. (see Art 566)
§
Lease. The lessee gets the fruits of the land. (Of course, the owner gets the civil fruits in the form of rentals.) See Art. 1654
§
In antichresis, the antichretic creditor gets the fruits, although said fruits should be applied first to the interest, if any is owing; and then to the principal amount of the loan. (see : Art. 2132)
RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY GEN. RULE: Art. 445. Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belongs to the owner of the land. To the owner of the principal (land for example) must belong also the accessions – in accordance with the principle that the “accessory follows the principal.” NOTE: This article deals with accession continua more specifically accession industrial – BUILDING, PLANTING, SOWING. Exception: Art. 120 of the Family Code: A building constructed on the land owned by one of the spouses at the expense of the conjugal partnership will belong to the partnership or to the spouse who owns the land depending on which of the two properties has a higher value. If the land is more valuable than the building, the building shall be owned by the owner of the land. If the building is more valuable than the land , the entire property shall belong to the conjugal partnership. In both cases, there is right of reimbursement at the time of liquidation of the conjugal partnership.
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Adjun
Mix
Engraftment; attachment; weaving painting; writing
Spec
Confusion (liquid); Commixtion (solids)
RIGHTS OF THE LANDOWNER Art. 447. The owner of the land who makes thereon personally or thru another, plantings, constructions or works with the materials of another shall pay their value; and if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages. LANDOWNER Good Faith Right to appropriate he materials but he must pay its value; or return the materials provided they are not transformed at the expense of the landowner
Bad Faith 1. Liable to pay the value of the materials plus damages; 2. Owner of the materials may remove them whether there is injury or none, plus damages.
The owner of the materials may remove them provided that there is no injury to the work constructed.
Note: There is no provision of law which applies to a situation where the landowner is in good faith while the owner of the material is in bad faith. However, it would seem that the landowner would not only be exempted from reimbursement, but would also be entitled to consequential damages (as when for instance, the materials are of inferior quality). Moreover, the owner of the materials would lose all rights to them, such as the right of removal, regardless of whether substantial injury would be caused. REMINDERS: §
Under Art. 447. The landowner himself (as distinguished from Art. 448) makes the PLANTINGS, CONSTRUCTIONS OR WORKS on his land, BUT with the materials of another person.
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§
In such a situation, a NEW THING is produced (i.e. something that is built or constructed on a land by the landowner with the materials of another), but does not result in co-ownership. The owner therefore of the materials does not become part owner of the new thing. He is only entitled to recover their value.
§
In short, the law gives the LANDOWNER, who acted in good faith, the right to APPROPRIATE the new thing provided that he INDEMNIFIES the owner of the materials.
QUESTION: What if the landowner offers to dismantle the new thing and return the materials thereof to its owner? A: Strictly speaking, the law does not grant this option. What the law provides is the right (of the landowner) to pay for the value of the materials. However, when the materials can be removed without causing injury thereof (i.e. statues, ornaments or other of like nature), or when the materials had not been t ransformed, the landowner may return them at his expense to the owner of the materials. QUESTION: What if the new thing is dismantled, is the right of the owner of the materials revived? A: It would seem that the law attributes ownership to the landowner by giving them the option to pay for t heir value, hence, the right of the owner of the materials is not revived. However, the better rule should be that as long as there is no injury to the work constructed or to the planting, the same may be recovered by the owner thereof. REMINDERS: §
§
In case of alienation by the landowner, the owner of the materials may go against the new owner, because he is the one benefited by the accession. (Pacific Farms vs Esguerra 30 SCRA 684) Bad Faith; Good Faith, meaning of – (Cf. Arts. 453 and 526). The builder, planter or sower is in bad faith if he makes use of the land or materials which he knows belong to another.
Art. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Article 546 and 548 or to oblige the one who built or planted to pay the price of the land, and one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent if the owner of the land does not chose to appropriate the building or trees after indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof . Note: This article applies only if the builder, planter or sower is in good faith. (See also Arts. 454 and 447.) Applicability of Art. 448: In Pecson vs. Court Of Appeals, 244 SCRA 407 , it was held that Article 448 applies only to a land whose ownership is
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claimed by two or more parties, one of whom has built some works, one sown or planted something. It does not apply to a case where the owner of the land is the builder, sower or planter who then later loses ownership of the land by sale or donation. Nevertheless, the provision therein with respect t o indemnity may be applied by analogy considering that the primary intent of Art. 448 is to avoid a state of forced co-ownership. In PNB vs. de Jesus, 557 SCRA 411, the SC held that Art 448 refers to a piece of land whose ownership is claimed by two or more parties, one of whom has built some works (or sown or planted something) and, not to a case where the owner of the land is the builder or sower or planter who then later loses ownership of the land by sale or otherwise for “where the true owner himself is the builder of works on his own land, the issue of good faint or bad faith is entirely irrelevant.” Who is entitled to possession of the building if the landowner opts to appropriate the building? In Pecson [supra], the SC further held: Since the landowner opted to appropriate the apartment building, the owner of the building is thus entitled to the possession and enjoyment of the apartment building, until he is paid the proper indemnity, as well as of the portion of the lot where the building was constructed. This is so, because the right to retain the improvements while the corresponding indemnity is not paid implies the tenancy or possession in fact of the land which it is built, planted or sown. The petitioner not having been so paid, he was entitled to retain ownership of the building, and, necessarily, the income therefrom. [Cf: Mendoza vs. de Guzman, 54 SCRA 164] What is the basis of reimbursement, cost of the building or the market value of the building? Again, in Pecson [supra], it was held that the objective of Art. 546 of the Civil Code is to administer justice between the parties involved in such a way as neither one nor the other may enrich himself of that which does not belong to him. It is therefore the current market value of the improvement which should be made the basis of reimbursement. A contrary ruling would unjustly enrich the private respondents who would otherwise be allowed to acquire a highly valued income-yielding four-unit apartment building for a measly amount. QUESTION: May a lessee or a tenant who introduced improvements on a rented land recover for their value under Art. 448? A: In Balucanag vs. Francisco, 122 SCRA 498 , in relation to Rivera vs. Trinidad, 48 Phil 396 , the SC ruled: “Art 448 does not apply to a lessee because as such lessee he knows that he is not the owner of the leased premises. Neither can he deny the ownership or title of his lessor. A lessee who introduces improvements in the leased premises, does so at his own risk in the sense that he cannot recover their value from the lessor, much less retain the premises until such reimbursement.” Also, in Chua vs. Court of Appeals, 301 SCRA 358 , it was held that: “…the fact that petitioners made repairs on the premises is not a reason to retain the possession of the
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premises. There is no provision of law which grants the lessee a right of retention over the leased premises on that ground.” “Art. 448 of the Civil Code, in relation to Art. 546, which provides for full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e. one who builds on a land in the belief that he is the owner thereof. This right is not applicable to a mere lessee, otherwise, it would always be in his power to “improve” his landlord out of the latter’s property.” What if both the landowner and the builder are in good faith, who shall prevail?
1.
Note: Ownership over the thing built, sown or planted does not pass to the landowner until after payment therefore has been given. In the meantime, the builder, planter or sower (who is in good faith) has the right of retention (see: Martinez vs. Baganus, 28 Phil 500 ); 2.
In a sense, it is the landowner, since the law grants upon him the right either to appropriate or compulsory sale. In both cases however, the builder is also protected. OTHER REMEDIES: In Filipinas Colleges vs. Timbang, 106 Phil 247 , the SC held that the land and improvements may be sold at public auction, applying the proceeds thereof to the payment of the value of the land and the excess, if any, to be delivered to the owner of the improvements in payment thereof. In Miranda vs. Fadullon, 97 Phil 801, it was held that the parties may decide to leave things as they are and assume the relation of lessor or lessee; and should they disagree as to the amount of the rental, they can go to court for the fixing of that amount. NOTE: Forced lease is also created when the landowner opts f or compulsory sale [value of land is not immoderate] and the builder failed to pay. Can the landowner refuse to exercise both options and insists on removal? In Ignacio vs. Hilario, 76 Phil 605 , it was held that the landowner cannot both refuse to pay for the building and to sell the land to the builder, and compel the latter to remove the building. He is entitled to seek the removal of the building only if after having chosen to sell the land, the builder failed to pay for the same. Is the landowner entitled to rentals from the builder during the period of retention? In Grana vs. CA, 109 Phil 260 , the SC ruled that during the time that the builder is retaining possession of the land, he cannot be required to pay rentals. Otherwise, the right of retention will be rendered nugatory. What is the nature of the right of retention? The right of retention is security for the payment of improvements. [Miranda vs. Fadullon, 97 Phil 801]. If the building is gutted by fire, the basis for right of retention is extinguished. [Manotok vs. Tecson, 164 SCRA 587 ]. RULES TO REMEMBER: IF LANDOWNER IS IN GOOD FAITH He has two options: (It is the landowner who has the option is not the builder, planter or sower.)
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To appropriate for himself anything that has been built, planted or sown upon the proper payment of indemnity; (RIGHT OF APPROPRIATION) cf: Ignao vs. IAC 1- 18-91
To compel the builder to buy the land unless the value of the land be considerably more than the value of what has been built, planted or sown; (RIGHT TO COMPULSORY SELLING). In this situation, there is no right of retention because the planter, builder or sower is the one required to pay. (see: Bernardo vs. Bataclan, 66 Phil 598 )
Generally, the landowner has no RIGHT OF REMOVAL, except after having selected a compulsory sale, the builder, planter or sower fails to pay for the land (see: Ignacio vs. Hilario, 76 Phil 605 ). Note: Once a choice is made by the landowner, it is generally irrevocable. Thus, if the landowner has elected to get the building, but is finally unable to pay for the indemnity or value of the building, she cannot afterwards elect to sell the land. (See: Tayag vs. Yuseco, 97 Phil 712 ) IF THE BUILDER, PLANTER IS IN BAD FAITH (Landowner in good faith): (See: Arts. 449, 450 and 451) 1.
2. 3.
4.
He loses what is built, planted or sown without right to indemnity (except necessary expenses for the preservation of the land), see: Art 452; He may be required to demolish or remove what is built or planted or sown; The builder may be compelled to pay the price of the land (whether or not the value of the land is considerably higher than the value of the house) and the sower proper rent; He is liable to pay damages.
QUESTION: If Davao City is invaded and occupied by an enemy country and an airstrip is constructed on a private land, who shall own the airstrip after the war, assuming the enemy is defeated? A: In Republic vs. Lara, 96 Phil 170 , it was held that the airfield belongs to the Republic of the Philippines and not to the owner of the land. The Japanese Army cannot be considered a possessor in bad faith so as to make the airfield the property of the landowner by industrial accession. International law allows the temporary use by the enemy occupant of private lands and buildings for all kinds of purposes demanded by the necessities of war.
ALLUVIUM Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. (See: Republic vs. CA, 132 SCRA 514)
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NOTE: This article applies also to creeks, streams, lakes (although the soil deposited may not be called alluvium.)
QUESTION: Is there a need for the riparian owner of making a formal claim of possession?
Forms of accession natural:
A: In Agne vs. Director, 181 SCRA 793, it was held that the riparian owner may not necessarily make an express act of possession, it being that the accretion is automatic, the moment the soil deposit appears.
a. b. c. d.
Alluvium; Avulsion; Change of course of rivers; Formation of islands.
Alluvium is the soil deposited or added to (accretion) the lands adjoining the banks of rivers and gradually received as an effect of the current of the waters. By law, the accretion is owned by the owner of the estate fronting the river bank (riparian owner). Accretion is the process whereby soil is deposited; alluvium is the soil deposited on river banks. Essential requisites of alluvium: 1.
The deposit should be gradual and imperceptible as a process (natural); Current must be that of a river; does not apply to accretion by man-made means (see: Republic vs. CA, 132 SCRA 154);
2.
2. Current must be that of a rive (if lake, the deposit may not be called alluvium but the principle is the same, see : Art. 84 Spanish Law on Waters);
3.
The river must continue to exist (otherwise, if the river disappears, Art. 58 PD 1067, in re: Art. 461 NCC, shall apply);
4.
The increase must be comparatively little.
QUESTION: What is the nature of an alluvion and how is it acquired? A: In Ferrer vs. Bautista, 231 SCRA 257 , it was held that: Article 457 of the Civil Code, under which petitioner claims ownership over the disputed parcel of land, provides: “Art. 457. To the owners of land adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of waters.” Undoubtedly, plaintiff is the lawful owner of the accretion, she being the registered owner of Lot Not. 1980 which adjoins the alluvial property. Alluvion gives to the owners of land adjoining the banks of rivers or streams any accretion which is gradually received from the effects of the current of water. The rationale for the rule is to provide some kind of compensation to owners of land continually exposed to the destructive force of water and subjected to various easements. QUESTION: Does the Director of Land have jurisdiction to grant title over alluvial claims by third party who is not the riparian owner? A: In Ferrer vs. Bautista [supra], the Director of Lands has no authority to grant a free patent over the land that has passed to private ownership and which has thereby ceased to be public land. Any title thus issued or conveyed by him would be null and void. Private respondents, therefore, acquired no right or title over the disputed land by virtue of the free patent since at the time it was issued in 1966, it was already private property and not part of the disposable land of the public domain.
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However, in Grande vs. CA, 6-30-62 , it was held that an alluvial deposit does not automatically become registered land simply because the lot which receives it is covered by a Torrens Title. Although the owner of the land on which the alluvial deposit is made becomes automatically the owner of the alluvial deposit, the law not requiring any act of possession on his part from the moment the deposit becomes manifest. Still ownership of a piece of land is one thing and registration under the Torrens System is another. In order that the alluvial deposit may be entitled to the protection of imprescriptibility, the same must be placed under the operation of the Land Registration Law. An unregistered alluvial property is therefore subject to acquisition through prescription by third person.
AVULSION Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another state, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. Avulsion - the process whereby the current of a RIVER, CREEK or TORRENT segregates from an estate on its bank a KNOWN PORTION of land and transfers it to another estate. Avulsion implies a violent tearing or breaking away. It may also be referred to as “delayed accession” in the sense that if the owner abandons the soil involved, or fails to remove (not merely claim) the same within two years, the land to which it had been attached acquires ownership thereof. REMINDERS : § § §
Torrent means a violent, rushing or turbulent stream. The law does not make a distinction whether the portion segregated is big or small. If the detached portion is not attached to another’s land but simply is in the middle of the river, ownership still remains with the person whose land it had been detached.
Art. 462. Whenever a river, changing its course by natural causes, opens a new bed through a private estate, this bed shall become of public dominion. QUESTION: If the cause of the damage is due to artificial means, is the riparian owner entitled to compensation? A: In Baes vs. CA, if the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through
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artificial means. The loss to the petitioners of the land covered by the canal was the result of a deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. It was therefore obligated to compensate the Baeses for the loss.
QUIETING OF TITLE Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance, or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also brought to prevent a cloud from being cast upon title to real property or any interest therein.
defective because of the forgery. Alma’s remedy is an action to quiet title. Question: Does an action to quiet title prescribe? A: It depends, if the plaintiff is in possession of the property, the action does not prescribe. But if the plaintiff is not in possession of the property, the action may prescribe (see: Fernandez vs. Court of Appeals, 189 SCRA 780 ; Mamadsual vs. Moson, 140 SCRA 83)
What is an action for quieting of title?
In Pingol vs. Court Of Appeals, 226 SCRA 118 , the SC ruled that although the plaintiff’s complaint was denominated as one for specific performance, it is in effect an action to quiet title. Prescription thus cannot be invoked against the private respondents for it is aphoristic that an action to quiet title to property in one’s possession is imprescriptible. The rationale for this rule has been aptly state thus: “The owner of real property who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person claiming title to real property, but not in possession thereof, must act affirmatively and within the time provided by the statute.
In Robles vs. CA, 328 SCRA 97 , the SC said: An action for quieting of title is a common law remedy for the removal of any cloud or doubt or uncertainty on the title to the real property. It is essential for the plaintiff or complainant to have a legal or an equitable title to or interest in the real property which is the subject matter of the action. Also, the deed, claim, encumbrance or proceeding that is being alleged as a cloud on plaintiff’s title must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity of legal efficacy.
Possession is a continuing right as in the right to defend such possession. So it has been determined that an owner of real property in possession has a continuing menace to his title. Such menace is compared to a continuing nuisance or trespass, not barred by statute until continued without interruption for a length of time sufficient to affect a change of title as a matter of law. (see also: Sapto vs Fabiano, 103 Phil 683; Bucton vs Gabar, 55 SCRA 499; Dignos vs CA, 158 SCRA 375; Coronel vs IAC, 155 SCRA 270; Solid State vs CA, 196 SCRA 630)
Note: Please observe that when the instrument is not valid on its face, the remedy does not apply.
What must be proven in an action to quiet title? In Secuya vs. Vda. De Selma, 329 SCRA 244, it was held that in an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or an interest in, the subject real property. Likewise, they must show that the deed, claim, encumbrance or proceeding that purportedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. Requisites: 1. 2. 3.
Existence of an instrument (deed or contract) or record or claim or encumbrance or proceeding; The instrument or proceeding is apparently valid or effective, and prejudicial to the title; In truth and in fact, invalid, ineffective, voidable or unenforceable, or extinguished.
Test : Would the owner of the property in an action at law brought by the adverse party and founded upon the instrument or claim, be required to offer evidence to defeat a recovery? If proof would be essential, the cloud exists; if proof is not needed, no cloud is cast. Example: Alma’s land was sold by Roger (a forger) t o B, a buyer in good faith. Alma’s name had been forged by Roger in the deed of sale. The sale on its face is apparently valid, with Alma’s name indicated as the seller. In truth, however, the sale is
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CO-OWNERSHIP Art. 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or of special provisions, coownership shall be governed by the provisions of this title. Note: Under this article, co-ownership may exist as to rights, and is not limited to corporeal things. (see: Samaniego vs. Villajin C.A OG 3137 ) In Javier vs. Javier, 5 Phil 78 , when a house is owned by one person, and the lot by another, there is no co-ownership created over the properties. Characteristics: (Co-ownership may also be referred to as Tenancy in common) 1. 2. 3.
Plurality of subjects; Singularity or unity of object; Recognition of ideal shares.
In de Guia vs. CA, 413 SCRA 114, the SC held that there is no co-ownership when the different portions owned by different people are already concretely determined and separately identifiable even if not yet technically described.
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Rules regarding ideal share: § §
use the house and lot without paying any compensation to the petitioner, as he may use the property owned in common so long as it is in accordance with the purpose for which it is intended and in a manner not injurious to the interest of the other co-owners.
Each co-owner has full ownership of his part, and of his share in the fruits and benefits (Art. 493); He may alienate, assign or mortgage his ideal share. (Art. 493);
Each co-owner of property held pro indiviso exercises his rights over the whole property and may use and enjoy the same with no other limitation than that he shall not injure the interest of his co-owners, the reason being that until a division is made, the respective share of each cannot be determined and every co-owner exercises, together with his co-participants joint-ownership over the pro indiviso property, in addition to his use and enjoyment of the same.
What governs co-ownership? a. b. c.
Contracts; in default thereof: Special legal provisions; The law on co-ownership.
Sources of co-ownership: ¬
¬
¬
¬
¬
LAW - party walls; party ditches; intestate succession; properties acquired by a man and a woman whose marriage is void; CONTRACT - two persons buy a parcel of land sharing in the purchase price and agree not to divide the land for ten years; CHANCE - commixtion, confusion, hidden treasure; WILL - when two persons are named as legatees or devisees of an undivided thing; OCCUPATION - Punzalan vs. Boon Liat, 44 Phil 320 , when a wild beast is caught by several persons.
Rules on the shares of co-owners in the benefits and charges (Art. 485): a.
The share in the benefits and charges is proportional to the interest of each. Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes;
b.
Contrary stipulation is VOID. To do so would be to run against the nature of co-ownership;
c.
Each co-owner shares proportionately in the accretion or alluvium of the property. This is because an increase in area benefits all.
LIMITATIONS on co-owner’s right to use the thing owned in common (Art. 486): a.
Can be used only according to the purpose for which it was intended; To determine the purpose for which the property is intended, the agreement of the co-owners (express or implied) should govern. In default of any agreement: (1) that to which the thing is ordinarily adapted according to its nature or; (2) the use to which it has been previously devoted. Thus, if the co-owners of a vessel agree that it shall be used as a warehouse or storage place for grain, one of the co-owners cannot order the grain removed and use the vessel for maritime transportation. Mere tolerance on the part of the co-owners cannot legalize the change in the use of the thing from that intended by the co-owners. Prescription cannot be invoked to establish a right to such different use, because mere tolerance cannot be the basis of prescription. In Aguilar vs. Court of Appeals, 227 SCRA 472 , it was held that being a co-owner respondent has the right to
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b.
The right to use must not prejudice the interest of the co-ownership; A co-owner cannot devote community property to his exclusive use to the prejudice of the co-ownership. Thus, where the co-owners have agreed to l ease a building owned in common, a co-owner cannot retain it for his use without paying the proper rent.
c.
The right to use must not be exercised to prevent the others from making use thereof according to their own right. The right of enjoyment by each co-owner is limited by a similar right of others. Hence, if the thing is a dwelling house, all the co-owners may live therein with their respective families, to the extent possible. But if one coowner alone occupies the entire house without opposition of the others, and there is no agreement to lease it, the other co-owners cannot demand the payment of rents. They can either exercise an equal right to live in the house, or agree to lease it; if they fail to do so, they must bear the consequences. It would be unjust to require the co-owner to pay rents after the other co-owners by their silence have allowed him to use the property.
Art. 491. None of the co-owners shall without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief. Alteration is a change: which (a) is more or less permanent; (b) changes the use of the thing; and (c) prejudices the condition of the thing or its enjoyment by the others. It is also a change (not limited to physical) of state of the thing or the withdrawal of the use from that intended. Example: sale; donation; or mortgage of the property. In determining alterations, it is sometimes necessary to consider the nature of the thing itself. Thus, when a thing does not require any modification for its enjoyment, whatever modifications or change that is made will be considered an alteration. But when a thing in its nature requires changes, such
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an industry or business, in its exploitation, such modifications and variations should be considered as falling under acts of administration.
a.
of the existence of an AGREEMENT between the parties •
REMINDERS: §
Article 491 requires unanimity of consent, whether tacit or express.
§
Effect of tacit consent - although the co-owner who is deemed to have tacitly consented to the alteration cannot ask for the demolition, neither can he be held liable to answer for any part of the expenses incurred therein, because the obligation to pay such expenses cannot be deemed to be the subject of his tacit consent.
In PNB vs. CA, 98 SCRA 207 in rel. to Castro vs. Atienza, 53 SCRA 264, the SC said that the alienation of a common property by a co-owner without the unanimous consent of all the co-owners is void not because the nature of the thing had been changed or altered, but because of the lack of unanimous consent required by law – as acts of alienation such as sale, donation, mortgage, lease for more than one year, etc. are acts of ownership which could be exercised only by all. The transaction is valid only with respect to the share of the co-owner alienating. What are the rights of a co-owner with regard to his ideal share? In Go Ong vs. CA, 154 SCRA 270 , it was held that under the provisions of Art. 493, the heirs as co-owners shall each have the full ownership of his part and the fruit s and benefits pertaining to it. An heir may, therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of alienation or mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. [see also: PNB vs. CA, 98 SCRA 207 ] In Lopez vs. Ilustre, 5 Phil 576 , it was held that what a coowner may dispose of is only his undivided share, which shall be limited to the portion which may be allotted to him upon the termination of the co-ownership. He has no right to divide the property into parts and then convey one part by metes and bounds. Art. 494. General Rule: No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Reasons: a. b. c.
To avoid conflicts in management; The law discourages co-ownership; The disposition or enjoyment of the thing owned in common is subject to the desire of all co-owners.
Exceptions: When there exists a PROHIBITION, because:
Marianne Macayra
not more than 10 years, extendible by a new agreement after the termination of the original period; hence, no automatic renewal, otherwise, the intention of the law would be defeated.
•
If more than 10 years, void as to the excess;
•
If prohibition is perpetual, valid only up to 10 years;
•
If agreement is subject to a resolutory condition, the agreement ends upon fulfillment of the condition provided it does not exceed 10 years.
b.
the LAW does not allow partition; (conjugal partnership as a general rule);
c.
of the WILL of the donor or testator; (the prohibition may be up to 20 years);
d.
the legal NATURE of the property does not allow partition (i.e. automobile, partition shall proceed in accordance with the rules set forth under Art. 498).
Note: As a general rule, prescription against a co-owner does not lie. In Aguilar vs. CA, 227 SCRA 472 , in rel. to Salvador vs. CA, 243 SCRA 239, the SC held that: Partition means the segregation or division of a property in common to those to whom it belongs in parts. A co-owner has the right to demand at anytime the partition or segregation of his share in the thing owned in common. The right to demand partition does not prescribe as long as the co-ownership is recognized. In order that the title may prescribe in favor of a co-owner, the following requisites must concur : (Robles vs. Court of Appeals, 328 SCRA 97 ) 1.
2. 3.
The co-owner has performed unequivocal acts of repudiation amounting to an ouster of the other coowners; Such positive acts of repudiation have been made known to the other co-owners; The evidence thereof is clear and convincing.
In Robles vs. CA, the SC ruled that: Hilario did not have possession of the subject property; neither did he exclude petitioners from the use and enjoyment thereof, as they have indisputably shared in its fruits. Likewise, his act of entering into the mortgage contract with the bank cannot be construed to be a repudiation of the co-ownership. As an absolute owner of his undivided interest in the land, he had the right to alienate his share, as he in fact did. Neither should his payment of land taxes in his name, as agreed upon by the co-owners, be construed as repudiation of the co-ownership. The assertion that the declaration of the co-ownership was tantamount to repudiation was belied by the continued occupation and possession of the disputed property by the petitioners as owners. Exception: a.
When a co-owner gives notice to the other co-owners that he is repudiating the co-ownership and that he is claiming ownership of the entire property;
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b.
The requirement of continuous, open, public, adverse possession for the period of time required must be met;
2.
Example: Contract of lease; Usufruct; Possession by: tenant; depository; bailee; or lessee. All these have juridical titles but they are not the owners.
Note: Acts which may be considered adverse insofar as strangers are concerned may not be considered adverse insofar as coowner is concerned. In other words, it is harder for a co-owner acquire properties of strangers. Hence, mere actual possession by one co-owner will not give rise to the inference that the possession was adverse. This is because a co-owner is after all entitled to possession of the property. There must indeed be a definite repudiation and the possession is to the exclusion of other co-owners. In Salvador vs. CA, 243 SCRA 239, it was held that a mere silent possession by a co-owner, his receipts of rents, fruits or profits from the property, the erection of buildings and fences and the planting of trees thereon, and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of possession which unequivocably constituted an ouster or deprivation of the rights of the other co-owners. Note: The period of prescription commences from the date of the repudiation.
Possession with juridical title, but not that of ownership.
3.
Possession with just title not sufficient to possess ownership. (a.k.a. real possessory right.); Example: “A” in good faith buys an automobile from “B” who delivers the same to “A”, and who merely pretended to be the owner thereof.
4.
Possession with a title of dominium. This is possession arising from ownership.
What are the concepts of possession? Art. 525. The possession of things or rights may be had in one of two concepts: either in the concept of owner , or in that of the holder of the thing or right…. a.
In the concept of an owner : It is the possession by the owner himself or by a person who CLAIMS to be and ACTS as the owner, whether he is in good faith or in bad faith. He possesses the thing in such a way that he makes people believe or see that he is the owner and recognizes no title or ownership in another.
Possession in the concept of owner vs. Torrens title: POSSESSION Art. 523: Possession is the holding of a thing or the enjoyment of a right. What is the possession?
relationship
between
ownership
and
As a general rule, possession is an element of ownership. However, this is not absolute, there are circumstances whereby the owner of the thing does not possess the thing. Essential Requisites of Possession: (Must concur) 1.
2. 3.
Holding, maybe actual or constructive, the body of thing or the corpus. (There is occupancy, taking or apprehension) Intent to hold it, the animus or desire. The possession must be by virtue of one’s own right. Hence, an agent who holds is not t ruly in possession; it is the principal who possesses thru the agent.
Classes of possession: 1. 2. 3.
Possession is one’s own name or possession in the name of another; (see Art. 524) Possession in the concept of an owner or possession in the concept of a holder; (see Art. 525) Possession in good faith or possession in bad faith. (See Art. 526)
What are the Degrees of Possession? 1.
The mere holding of a thing without the title, or the holding of a thing in violation of the rights of the owner. Example: A thief possesses a thing without title and in violation of the right of the owner.
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In Apostol vs. CA, 432 SCRA 351, the SC ruled that the presumption of ownership granted by law to a possessor in the concept of an owner under Art 541 is only prima-facie and cannot prevail over a valid title registered under the Torrens System. It is an accepted rule that a person who has a torrens title over the property is entitled to the possession thereof. In Occena vs. Esponilla, 431 SSCRA 116 , the SC ruled that the defense of indefeasibility of Torrens title does not extend to a transferee who takes the certificate of title in bad faith with notice of a flaw. A buyer of real property in the possession of persons other than the seller must be wary and should investigate the rights of those in possession otherwise he can hardly be regarded as buyer in good faith and cannot have any right over the property. Prior possession, not necessary in a suit for unlawful detainer In a case for unlawful detainer, as when the new owner of the house ejects the tenant therefrom, is prior physical possession an indispensable requisite on the part of the new owner? In Apostol vs. CA, 432 SCRA 351, the SC ruled that “the fact that the respondents were never in prior physical possession of the subject land is of no moment, as prior physical possession is necessary only in forcible entry cases.” Distinction: Proof of possession in forcible entry and unlawful detainer In Pajuyo vs. CA, 430 SCRA 492 , the SC held that: “Prior possession is not always a condition sine qua non in ejectment. This is one of the distinctions between forcible entry and unlawful detainer. In forcible entry, the plaintiff is deprived of physical
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possession of his land or building by means of force, threat, strategy or stealth. Thus, he must allege and prove prior possession. But in unlawful detainer, the defendant unlawfully withholds possession after the expiration or termination of his right to possess under any contract, express or implied. In such case, prior physical possession is not required. b.
In the concept of holder : Here, the recognizes another to be the owner.
Examples: Tenant; commodatum.
Usufructuary;
Depositary;
possessor Bailee
in
What is the nature of possession by a lessee? In Maglucot-aw vs. Maglucot, 329 SCRA 78 , it was held that one who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief is right or wrong. In Jose M. T. Garcia vs. Court of Appeals, et al., G.R. No. 113140, August 10, 1999, the SC held that possessor who is merely tolerated by owner is a possessor in the concept of holder and such possession does not hinder a valid transfer of ownership by the owner thru its sale to another. In Servando Mangahas vs. Court of Appeals, G.R. No. 95815, March 10, 1999, it was ruled that there can be no acquisitive prescription of land in favor of the possessor if the possession is in the concept of holder . In Sotera Paulino Marcelo, et al. vs. CA, G.R. No. 131803. April 14, 1999, the SC ruled: "Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse of time. In order to ripen into ownership, possession must be in the concept of an owner, public, peaceful and uninterrupted. Thus, mere possession with a juridical title, such as, to exemplify, by a usufructuary, a trustee, a lessee, an agent for a pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive prescription, unless the juridical relation is first expressly repudiated and such repudiation has been communicated to the other party. Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be inadequate. Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueno, or, to use the common law equivalent of the term, that possession should be adverse; if not, such possessory acts, no matter how long, do not start the running of the period of prescription.”
POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH Art. 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith. AWARENESS of any FLAW is question of knowledge.
Marianne Macayra
ü
If he is not aware – GOOD FAITH. There is always a presumption that every possessor is a possessor in good faith. (see Art. 527)
ü
If he is aware – BAD FAITH. This is purely personal to the possessor. It may not necessarily be transmitted to the heir.
In Sotera Paulino Marcelo, et. al. vs. CA, G.R. No. 131803, April 14, 1999, the SC ruled that transferee of an unregistered parcel of land for value from a buyer and who took immediate possession thereof has the benefit of good faith in his favor. Ordinary acquisitive prescription of 10 years is applicable. In Republic vs. CA, 102 SCRA 331, it was held that a party’s mere refusal to believe that a defect exists and his willful closing of his eyes to the possibility of the existence of a defect in his vendor’s title will not make him an innocent purchaser for value if it afterwards develop that the title was in fact defective. Hence, if circumstances exist that require a prudent man to investigate; he will be in bad faith if he does not investigate. [See: Leung Lee vs. Strong, 37 Phil. 4 64] In Republic vs. De Guzman, 326 SCRA 267 , the SC ruled that the burden of proving the status of purchaser in good faith and for value lies upon him who asserts that status. In discharging the burden, it is not enough to invoke the ordinary presumption of good faith. “The rule is settled that a buyer of real property which is in possession of persons other than the seller must be wary and should investigate the rights of who is in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as buyer in good faith.”
ACQUISITION OF POSSESSION Art. 531. Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. Three ways of acquiring possession: 1.
Material occupation of the thing/exercise of a right. ¬
2.
By the action of our will. (By agreement) ¬
3.
Holding, apprehension, arrest, occupancy. Occupation is used here in its ordinary sense which means holding of a thing which must be physical. (Also the exercise of a right.)
Here, there is no actual physical detention or seizure of the thing but the agreement between the parties constitutes the fact of possession.
Proper acts and legal formalities established by law. This is the legal formality which gives rise to possession. ¬
These are certain documents that can ordinarily give rise to possession because of legal fiction. The moment that document takes effect, automatically, the person in whose favor that documents is
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executed is deemed to have acquired possession of that property. In Medina vs. Greenfield Dev. Corp., the SC held that: “… the execution of the deeds of conveyance is already deemed equivalent to delivery of the property and prior physical possession is not required. Possession is also transferred, along with ownership thereof, by virtue of the notarized deeds of conveyances. Under Art 1498 of the Civil Code, when the sale is made through a public instrument, the execution thereof shall be equivalent to delivery of the object of the contract. •
•
In donations, there is no need of delivery. The moment the donation is in the form provided by law, the donee is deemed to be in possession of the thing donated. Ownership is automatically acquired by the donee. In wills, upon the death of the decedent if the will is valid, the heirs mentioned in the will are deemed automatically, by fiction of law to be in possession of the hereditary estate. Actually and in truth, the heirs are not in actual possession but by fiction of law, the possession by the decedent is deemed to be continued without any interruption. Art. 533.
QUESTION: Who is the preferred possessor among claimants? Can tax receipts and declarations be the basis of claim of ownership through prescription? A: In Cequeña vs. Bolante, 330 SCRA 216 , it was held that petitioners did not lose legal possession because possession cannot be acquired through force or violence. For all intents and purposes, a possessor even if physically ousted is still deemed the legal possessor. Indeed, anyone who can prove prior possession, regardless of its character, may recover such possession. The respondent is the preferred possessor because, benefiting from her father’s tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On the other hand, petitioner’s father acquired joint possession only in 1952. Tax receipts and declarations of ownership, when coupled with proof of actual possession of the property, can be the basis of a claim for ownership through prescription. Respondent’s possession was not disturbed until 1953 when the petitioner’s father claimed the land. But by then, her possession, which was in the concept of an owner – public, peaceful and uninterrupted – had already ripened into ownership. Furthermore, she herself after her father’s demise, declared and paid realty taxes for the disputed land. Tax declarations and receipts are not conclusive evidence of ownership. At most, they constitute mere prima facie proof of ownership or possession of the property for which taxes have been paid. In the absence of actual, public and adverse possession, the declaration of the for tax purposes does not prove ownership. The petitioners, despite 32 years of farming the subject land, did not acquire ownership by mere occupation. Unless coupled with the element of hostility toward the true owner, occupation and use, however long, will not confer title by prescription or adverse possession.
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In Republic vs. CA, 258 SCRA 712 , the SC ruled that although tax declarations or realty tax payments of property are not conclusive evidence of ownership, nevertheless, they are good indicia of possession in the concept of owner for no one in his right mind would be paying taxes for a property that is not in his actual or at least constructive possession. They constitute at least proof that the holder has a claim of title over the property. The voluntary declaration of a piece of property and announces his adverse claim against the State and all other interested parties, but also the intention to contribute needed revenues for the government. Such an act strengthens one’s bona fide claim of acquisition of ownership. Who may acquire possession? One who is in full possession of his civil capacity can acquire possession of a thing or a right through any of the three ways of acquiring possession as provided in Art. 531 (i.e.: [a] material occupation of the thing; [b] by the action of our will; [c] proper acts and legal formalities established by law.) or may acquire (under Art. 432): [a] through his representative; [b] by his agent; or [c] by any person without any power whatsoever (negotiorum gestio) Note: The possession of a person without power cannot be acquired without the ratification of the person in whose name the act of possession was executed. QUESTION: May minors and incapacitated persons acquire possession? A: Minors and incapacitated persons may acquire possession in those matters where they have capacity to act like in the case of physical seizure of res nullius or donation of personalty simultaneously delivered to them and not possession where juridical acts are imperative like donations of realty where minors and incapacitated persons have no juridical capacity to execute. (see also: Art. 535.) QUESTION: What are the circumstances that cannot give rise to possession? 1.
Force, violence, intimidation.
In Ayala de Roxas vs. Maglanso, 8 Phil 745 in rel. to Moreno vs. Goco, 26 Phil 496 , it was held that possession acquired by force or violence does not affect possession because such possession is not true possession respected by law. For all purposes favorable to the true owner or possessor, his possession is not considered interrupted. In Bishop of Lipa vs. Mun. of San Jose, 27 Phil 571, it was held that there is force or violence in the acquisition, even when the property was not forcibly taken away from the owner, if the intruder occupied it during the absence of the owner and commits acts which repel the return of the owner. 2.
Mere tolerance of the owner .
Concept – Acts merely tolerated are those allowed by the owner not by reason of duty or obligation but by the impulse of sense of neighborliness or good familiarity with persons. In Municipality of Nueva Caceres vs. Director of Lands, 24 Phil 485 it was held that even assuming that these acts continue,
Page 18 of 18
they do not affect possession. On the basis of these acts, no right will be acquired by prescription.
owner thereof. Anyone who claims to be the true owner must resort to judicial process for the recovery of the property.
In Estrella vs. Director of Lands, 106 Phil 911 in rel. to Yu vs. de Lara, 116 Phil 1106 , it was held that a person who occupied another’s property at the latter’s tolerance without any contract between them, is necessarily bound by an implied promise to vacate it upon demand, falling in which ejectment suit is proper against him.
Note: The term “just little” refers to true and valid title – a title which by itself is sufficient to transfer ownership without the necessity of letting the period elapse. (see: Diolente vs. Biarnessa, 7 Philippines 232)
3.
Clandestine acts or secret possession. They cannot give rise to possession, for possession must be open.
EFFECTS OF POSSESSION Art. 539. The right to be: a. b.
Respected in his possession; Protected or restored to said possession by legal means in case of disturbance of another;
Reasons for the rule – To: a. b. c.
prevent a positive attempt against public order; avoid disturbances in the community; prevent deprivation of property without due process of law; d. avoid taking into his own hands the administration of justice.
Example: “B” brought a car from “S”, the owner thereof. Then “S” delivered the car to “B”. “B” now has a valid and true title over the car. Thus, if “B” possesses and drives the car around as an owner, other people cannot compel him to prove ownership thereof. Note: For purposes of prescription, “just title” means colorable title – that title where, although there was a mode of transferring ownership, still something is wrong, because the grantor is not the owner of the thing. Example: In the above example, if it turn out that “S” is not the owner of the car and somebody else was its owner, “B” would not be considered as the owner thereof because he did not acquire it from the owner of the car, irrespective whether or not he is in good faith. However, for purposes of prescription, his possession is just considered as “just title” of the period required by law depending on whether he is in good faith or not. Of in good faith – 4 years ( personal property); in bad faith - 8 years. Reasons for the presumption: 1. 2.
Remedies:
A possessor is always presumed to be in good faith. Because of the inconvenience of carrying proofs of ownership around.
1. Action for forcible entry – the unlawful deprivation of possession by means of force, intimidation, stealth, threat or strategy. Here, the dispossession arises from a situation or condition under which a person can wrongfully enter upon a real property and exclude another, who has had possession, therefrom.
Requisites in order that the principle “Possession is presumed ownership” to apply:
2.
Art. 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.
Unlawful detainer action
3. Accion publiciana – where the cause of action arose more than one year prior to the filing of the complaint to recover possession of real property, and therefore the action for forcible entry and detainer can no longer be instituted. The issue here is who has the better right of possession?
PRESUMPTION OF OWNERSHIP Art. 541. A possessor in the concept of an owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. What does it mean by “he possesses with a just title and he cannot be obliged to show or prove it”? In Chan vs. CA, 33 SCRA 737 , the clause “he possesses with a just title and he cannot be obliged to show or prove it” means that, the possessor cannot be inquired about his ownership without any valid reason, for he is presumed to be the
Marianne Macayra
1. 2.
One must be in possession, actual or constructive; The possession must be in the concept of an owner, not mere holder; (see: Art. 540)
Natural and industrial fruits are considered received from the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. Applicability of the article: The article applies to fruits only. It cannot extend to other things like the dismantled materials from a demolished house, part of the hidden treasure pertaining to the owner of the land. Who are the possessors entitled to the fruits? Only possessors in good faith are entitled to fruits. Possessors in bad faith on the other hand are not entitled to fruits but even required to reimburse the fruits already received and to some extent damages. In Calma vs. Calma, 56 Phil 102 , during the time the possessor is considered in good faith, he is entitled to the fruits he had received out of the property he is possessing. From the moment his good faith had been converted into bad faith – such
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as by judicial summons or extraneous evidence, he loses that right to retain the fruits. In Mindanao Academy, Inc. vs. Yap, 121 Phil. 204, before legal interruption, the fruits received by the possessor in good faith belong to him. But after judicial summons had been served upon the possessor in good faith, his right to get the fruits not yet gathered terminates.
§ §
Natural fruits are the spontaneous products of t he soil, and the young and other products of animals; Industrial fruits are those produced by lands of any kind through cultivation or labor. Civil fruits are the fruits of buildings, the price of leases of lands, and other property and the amount of perpetual or life annuities or other similar income.
When are fruits considered gathered? ¬
¬
Natural and industrial fruits – the moment they are gathered or severed. Civil fruits – deemed received on their due date not actual payment.
Illustration: “A” purchased an apartment from “B” in good faith. “A” leased the apartment to “C” who paid an advance rentals for 1 year in the total sum of PhP120,000.00 at the rate of PhP10,000.00 per month. Six months after “A” had leased the apartment, he received judicial summons. He lost the case to the plaintiff who was able to prove his superior right to the apartment. Under the law, “A” must return the rentals due the months after he received the judicial summons. He must therefore return PhP60,000.00 to the true owner, retaining at the same time the other PhP60,000.00 QUESTION: What is the liability of possessor in bad faith regarding fruits? a.
As to fruits already received – return them is still existing or pay for their value if already spent;
b.
As to growing, pending or ungathered fruits – no rights whatsoever.
In Director vs. Abagat 53 Phil 147 , in rel. to Lerma vs. dela Cruz, 7 Phil. 581, as additional liability, he must render an accounting of the fruits he had received as well as the fruits he could have received. He is also liable to pay for damages which must be equivalent of the reasonable rent for the occupation of the property during the period of his possession in bad faith. Note: In MWSS vs. CA, 143 SCRA 623, the right of removal granted to a possessor in bad faith applies only to improvements for pure luxury or mere pleasure. Rule on necessary and useful expenses: [see Art. 546] 1.
Rule: Every possessor is entitled to a refund whether in good faith or bad faith, except that the possessor in good faith is entitled to right of retention of the property until the refund is made. 2.
Notes: §
Examples: Major repairs of a house [ Angeles vs Lozada, 54 Phil 185 ]; expenses for cultivation, production and upkeep of the property. [See: Mendoza vs. de Guzman, 52 Phil 104]
Necessary expenses are those incurred to preserve the property without which, the said property will physically deteriorate or be lost.
Examples: Construction of dining room, kitchen, closet and bathroom [Robles vs. Lizarraga Hermanos, 42 Phil. 584; construction of irrigation system [ Valenzuela vs. Lopez, 51 Phil. 279]; construction of artificial fishponds [ Rivera vs Archbishop of Manila, 40 Phil 717 ]. Rule: Refundable only to possessors in good faith with the same right of retention as in necessary expenses. Note: The possessor in good faith may remove the useful improvements he had introduced provided that no substantial injury or damage would be caused to the principal thing. In Javier vs. Concepcion, 94 SCRA 212 , the right to remove useful improvements is subject to the right of the owner to keep the improvements himself by paying the expenses incurred or the concomitant increase in value of the property caused by the improvements. In other words, the possessor’s right of removal is subordinate to the right of the owner to retain said improvements [Calagan vs. CFI, 95 SCRA 498 ]. 3.
Expenses for luxury – those incurred to cater to the personal comfort, convenience or enjoyment of the possessor.
Rule: They are not refundable. The rationale behind this denial is that the law does not compensate personal whims and caprices. These improvements are purely for embellishments and not for preservation of the property, or for increasing the value or productivity of the property. Examples: Paintings of murals on concrete fence; scenic painting placed in the wall of bathroom.
RULE ON IRREIVINDICABILITY Art. 559. The possession of movable property acquired in good faith is equivalent to title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefore. Acquired in good faith here means the possessor is of the belief that the person from whom he received the thing was its owner and could transfer valid title thereto. Requisites for title: 1.
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Useful expenses – those incurred to add value to the property or increase productivity of the property.
That the possession is in good faith;
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2. 3.
That the owner has voluntarily parted with the possession of the thing; That the possession is in the concept of an owner.
Note: Under this situation, if the (real) owner gets the thing, he must REIMBURSE. Exceptions to the rule: [Note: Here, there is NO REIMBURSEMENT.] 1. 2.
When the owner has lost the thing; When the owner has been unlawfully deprived of the thing;
Exception to the exception: When the possessor had acquired the thing in good faith at a public sale (public auction sale). [Note: Here, the owner of the thing shall REIMBURSE the price paid.] Instances where there could be NO RECOVERY even if owner offers reimbursement: 1.
2.
3. 4. 5.
If possessor acquired the thing in good faith by purchase from a MERCHANT STORE or in FAIRS or in MARKETS, in accordance with the code of COMMERCE of special laws (see Art. 1505, NCC and Art 85 of the Code of Commerce); If owner is by his own conduct precluded from denying the seller’s authority to sell (Estoppel); see: Art. 1505, NCC; Holders in due course; Art. 1518, NCC; Finders of lost article after lapse of six (6) months; Art. 719, NCC; Acquisitive prescription; Art. 1132, NCC (good faith – 4 years; bad faith – 8 years).
UNLAWFULLY DEPRIVED EDCA Publishing vs. Santos, 184 SCRA 614 FACTS: On October 5, 1981, a person identifying himself as Prof. Jose Cruz of De la Salle College placed an order via telephone for 406 pcs of books with EDCA Publishing payable on delivery (COD). EDCA prepared the corresponding invoice and delivered the books as ordered, for which Cruz issued a personal check covering the purchase price of P8,995.65. On October 7, 1981, Cruz sold 120 pcs of the books to Leonor Santos who, after verifying the seller’s ownership from the invoice Cruz showed her, paid him P1,700.00. Meanwhile, EDCA having become suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with Della Sale College where he had claimed to be dean and was informed that there was no such person in its employ. Further verification revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the payment check. EDCA then went to the police, which set a trap and arrested Cruz on October 7, 1981. On the night of the same date, EDCA sought the assistance of the police which forced their way into the store of Santos and threatened her with prosecution for buying stolen property. They seized the 120 books without warrant, loading them in a van belonging to EDCA, and thereafter, turned them over to EDCA.
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Santos sued for the recovery of the books. EDCA contended that it can recover the books from Santos considering that EDCA was unlawfully deprived thereof since the check issued by the impostor was dishonored thus, nullifying the contract of sale between it and the impostor. HELD: Art. 1477 of the Civil Code provides that the ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. Art. 1478 also provides that the parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price. It is clear from the above provisions, particularly Art. 1478 that ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid. Non-payment creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it t o another. In Tagactac vs. Jimenez , the plaintiff sold the car to Feist, who sold it to Sanchez, who sold it to Jimenez, when the payment check issued to Tagactac by Feist was dishonored, the plaintiff sued to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason of Feist’s deception. In ruling for Jimenez, the Court of Appeals held: “The point of inquiry is whether plaintiff-appellant Trinidad C. Tagactac has been unlawfully deprived of her car. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to part with it by reason of the chicanery practiced on her by Feist. Certainly, swindling, like robbery, is an illegal method of deprivation of property. In a manner of speaking, plaintiff-appellant was “illegally deprived” of her car, for the way by which Feist induced her to part with it is illegal and punishable by law. But does this “unlawful deprivation” come within the scope of Art. 559 of the New Civil Code? The fraud and deceit practiced by Feist earmarks this sale as a voidable contract (Art 1390 NCC). Being a voidable contract, it is susceptible of either ratification or annulment. If the contract is ratified, the action to annul it is extinguished (Art 1392, NCC) and the contract is cleansed from all its defects (Art 1396, NCC); if the contract is annulled, the contracting parties are restored to their respective situations before the contract and mutual restitution follows as a consequence (Art 1398, NCC). However, as long as no action is taken by the party entitled, either that of annulment or of ratification, the contract of sale remains valid and binding. When plaintiff-appellant Tagactac delivered the car to Feist by virtue of said voidable contract of sale, the title to the car passed to Feist. Of course, the title that Feist acquired was defective and voidable. Nevertheless, at the time he sold the car to Felix Sanchez, his title thereto had not been avoided and he therefore conferred good title on the latter; provided he bought the car in good faith, for value and without notice of the defect in Feist title (Art 1506, NCC)
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The above rulings are sound doctrine and reflect our own interpretation of Art. 559 as applied to the case before us. Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books. One may well imagine the adverse consequences if the phrase “unlawfully deprived” were to be interpreted in the manner suggested by the petitioner. A person relying on the seller’s title who buys a movable property from him would have to surrender it to another person claiming to be the original owner who had not yet been paid the purchase price therefor. The buyer in the second sale would be left holding the bag, so to speak and would be compelled to return the thing bought by him in good faith without even the right to reimbursement of the amount he had paid for it. Aznar vs. Yapdiangco, 13 SCRA 486 FACTS: Santos agreed to sell his car to Marella for P14,700.00, the price to be paid after the car is registered in the name of Marella. After the execution of the Deed of Sale, Santos together Marella proceeded to the Motor Vehicles Office where the registration of the car in Marella’s name was effected. When Santos asked for payment, Marella told him that he was short of P2,000.00 and informed him that he would get from his sister. Together they rode in the car to the supposed residence of his sister. Upon entering the house, Marella told Santos to wait in the sala while he asked his sister for the money. In the meanwhile, on the pretext that Marella had to show his sister of the registration papers of the car, Santos gave them to Marella, who thereupon entered the supposed room of his sister, ostensibly to show her the papers. That was the last time Santos saw Marella and his car. In the meantime Marella succeeded in selling the car to Aznar who bought the same in good faith for P15,000.00. When Aznar was trying to register the car at the Motor Vehicles Office, the same was seized from him by the Philippine Constabulary as a consequence of the report made to them by Santos. The lower court decided in favor of Santos applying the provisions of Art 559 and concluded that he was “unlawfully deprived” of his property. On appeal, Aznar contended that Art. 1506 of the Civil Code and not Art 559 is applicable. Art 1506 provides: “Art. 1506. Where the seller of goods has a voidable title thereto, but his title has not been voided at the time of the sale, the buyer acquired a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller’s defect or title.” HELD: The contention is clearly unmeritorious. Under the aforequoted provision, it is essential that the seller should have a voidable title at least. It is inapplicable where, as in this case, the seller had no title at all. Marella did not have any title to the property under litigation because the same was never delivered to him. He sought ownership or acquisition of it by virtue of the contract. Marella
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could have acquired ownership or title to the subject matter thereof only by the delivery or tradition of the car to him. The car in question was never delivered to the vendee by the vendor as to complete or consummate the transfer of ownership by virtue of the contract. It should be recalled that while there was indeed a contract of sale between Santos and Marella, the latter as the vendee, took possession of the subject matter thereof by stealing the same while it was in the custody of the former’s son. See: Cases a. Del Rosario vs. Lucena, 8 Phil. 535 b. Varela vs. Finnick, 9 Phil 482 c. Arenas vs. Raymundo, 19 Phil 46 d. US vs. Sotelo, 28 Phil. 147
USUFRUCT IN GENERAL Art. 562, Usufruct gives a right to enjoy the property of another with the obligation of preserving its forms and substance, unless the title constituting it or the law otherwise provides. CONCEPT: Usufruct – the right to enjoy the property of another, with the obligation of preserving its form and substance unless the title constituting it or the law provides otherwise. Rights of Full Owner =
DISPOSE
+ USE + FRUITS
FULL OWNERSHIP = Naked Ownership +
Usufruct
Characteristics: 1.
Real right;
Essential (Usufruct
2.
Temporary in nature;
cannot exist
3.
Purpose is to enjoy the benefits;
4.
Obligation to conserve and preserve. - Natural (Ordinarily present but may be eliminated by agreement) and Accidental (may or may not be present depending upon the stipulation of the parties)
without these)
USUFRUCT, how created: a.
By law; (see Art. 225/226 of the Family Code, in re: Art. 321 of the Civil Code.) Note: The property of an emancipated child is owned exclusively by the child and shall be devoted solely for his support and education. As to the fruits or income of the property, the rights of the parents over the same shall be limited only to the child’s support and collective daily needs of the family.
b. c.
By contract or agreement; By last will and testament.
Rules governing usufruct: a. b.
Agreement; (or the title giving the usufruct) Civil Code.
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RIGHTS OF THE USUFRUCTUARY FIRST. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. (See: Art. 566)
transfer, assign, or alienate such rights. In the same vein, these rights may be subjected to a writ of execution, not being exempt therefrom. SECOND. The usufructuary has the right to the enjoyment of: a. b. c.
Rules: 1.
Pending natural or industrial fruits: growing at the time the usufruct begins belongs to the usufructuary;
Here, the usufructuary has no obligation to refund for the expenses but without prejudice to the right of third persons. (Thus, if the fruits had been planted by a possessor in good faith, the pending crop expenses and charges shall be pro-rated between said possessor and the usufructuary) see: Art. 545, NCC;
THIRD. The usufructuary, in addition to the usufruct (as a right) may: (see: Art. 572) a. b.
- those growing at the time the usufruct terminates, belong to the naked owner. (See: Art. 567, NCC) Here, the naked owner is obligated to reimburse the expenses incurred for the ordinary cultivation and seeds and other similar expenses from the proceeds of the fruits. (Hence, the excess of expenses over the proceeds need not be reimbursed.) 2.
Civil Fruits: (Rents, pensions, benefits, etc.) see: Art. 570, NCC. Rule: They shall be deemed to accrue proportionately to the naked owner and usufructuary for the time the usufruct lasts.
Example: A gave B in usufruct the profits of a certain building for five (5) years.
c.
Examples: clothes, furniture, vehicles, books, etc. Effect of the deterioration: a.
Because of normal use – the usufructuary is not liable. He can return them in the conditions they might be in at the termination of the usufruct. There is no necessity for him to make any repairs to restore them to their former condition. Although there is no express provision on the matter, if the usufructuary does not return the things upon the expiration of the usufruct, he shall pay an indemnity for the value of the thing at the time such expiration.
b.
Because of fortuitous event - usufructuary is obliged to make the necessary and ordinary repairs (see art. 592). But the mere deterioration thru normal use does not require the ordinary repairs referred to under art. 592.
c.
Because of fraud - the usufructuary is responsible. But such liability make be set off against improvements. (see: Art. 580);
b. Suppose however, B died at the end of three (3) years, and the following were the profits from the building: Yr. 1 - P10,000.00
Yr. 3 - P30,000.00* Yr. 4 - P20,000.00 Yr. 5 - P40,000.00
P120,000.00
Ratio is 3:2, thus: 3(P120,000.00)/5 = P72,000.00 – share of B; 2(P120,000.00)/5 = P48,000.00 – share of A. QUESTION: What is the nature of dividends? Who shall be entitled to them?
Enjoy the thing itself or thru another; Lease the thing to another (for a period not longer than that of the usufruct) even without the naked owner’s consent; Alienate, sell, donate, bequeath, or devise, sell or pledge the usufructuary right (not the thing itself or future crops, for crops pending at the termination of the usufruct belong to the naked owner.)
FOURTH. The usufructruary has the right to MAKE USE of things included in usufruct which gradually deteriorate without being consumed, through wear and tear, in accordance with the purpose for which they were intended. (a.k.a. Abnormal Usufruct) see: Art. 573.
a. If the usufruct lasts for the period stipulated, all the profits during the said period will go to B.
Yr. 2 - P20,000.00
Accessions (whether artificial or natural); Servitudes and easements; All benefits inherent in property (i.e.: the right to hunt and fish therein, the right to construct rain water receptacles) see: Art. 571, NCC;
FIFTH. The usufructuary has the right to MAKE USE of consumable things in usufruct. (a.k.a. quasi-usufruct, see art. 574)
QUESTION: Are usufructuary rights exempt from execution?
Note: (the principle of creditor-debtor relationship applies) Here, the usufructuary becomes the owner of the things (consumable) in usufruct, such as a sum of money or a quantity of liquid of grain but he has the obligation to pay for their current price or return the things of the same quantity and quality at the time the usufruct ceases.
In Vda. De Bogacki vs. Inserto, 111 SCRA 356 , usufructuary rights can be disposed of by the usufructuary, thus, he can
SIXTH. The usufructuary of fruit-bearing trees and shrubs has the right to make use of the dead trunks, and even of those cut
In Bachrach vs. Siefert, 87 Phil 483, dividends from shares in a corporation are civil fruits whether in the form of cash or stock dividends. They are not part of the capital, hence, they belong to the usufructuary.
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off or uprooted by accident. (a.k.a. special usufruct) see: Art. 575. Note: here, the usufructuary is obliged to replace with new plants.
movables and description of the condition of the immovables; 2.
SEVENTH. The usufructuary has the right to make: a. b.
Useful improvements; Luxurious improvements for mere pleasure.
However: 1. 2.
He must not alter the form or substance of the properly held in usufruct, unless the naked owner consents; He is not entitled to a refund but either remove the improvement if no substantial damage to the property is caused (see Art 579); or to set off (compensate) the improvements against damages for which he may be liable (see: Art. 580). His right does not involve an obligation, hence, if the usufructuary does not wish to exercise it, he cannot be compelled by the naked owner to remove his improvements. The option to remove is granted to the usufructuary.
Rule in case of set off: (see. Art. 580) a. If damage is greater than the improvement usufructuary is liable for the excess; b. If improvement is greater than the damage - the naked owner is not liable to refund the excess. Rule: If a co-owner of a property gives the usufruct of his share to another (see. Art. 582) the usufructuary takes the co-owner’s place as to: a. b.
Administration or management; Collection of fruits or interest (but not as to alienation, disposition, or creation of any real right over the property, since these are strict acts of ownership, unless authorized by the naked owner.)
Effect of Partition: The usufructuary continues to have the usufruct of the part allotted to the co-owner concerned. Note: the co-owner may partition the property even without the consent of the usufructuary and the partition is binding upon the usufructuary. However, the naked owner (co-owner) must respect the usufructuary.
OBLIGATIONS OF THE USUFRUCTUARY The usufructuary has obligations: a. b. c.
Before the usufruct; During the usufruct; and After the usufruct.
Note: The obligation to make inventory and to give security are not necessary in order for the right to the usufruct begins but are merely required before physical possession and enjoyment of the property can be had. EXCEPTION: Inventory is not required when: 1.
2.
No one will be injured thereby (as in the case of usufruct over a periodical pension or incorporeal right (see: Art. 570), provided the naked owner consents for the law says “may” (see: Art. 585); In case of waiver by the naked owner; or when there is stipulation (in a will or contract).
Security is not required when: 1.
No one will be injured thereby (as in the case of usufruct over a periodical pension or incorporeal right (see: Art. 570), provided the naked owner consents for the law says “may” (see : Art. 585); 2. In case of waiver by the naked owner; or when there is stipulation (in a will or contract). 3. When the usufructuary is the donor of the property (who has reserved the usufruct). (The naked owner should be grateful enough not to require the security.); 4. In cases of caucion juratoria (promise under oath), see: Art. 587.
CAUTION JURATORIA Art. 587. Caucion Juratoria – a sworn duty to take good care of the property and return the same at the end of the usufruct. If a usufruct consists in: 1.
Furnitures necessary for the use of the usufructuary;
2.
House which his family may live;
3.
Tools and implements and other movables necessary for an industry or vocation which the usufructuary is engaged, and the usufructuary cannot afford to give the required security, he may file a petition before the courts to allow him to enjoy possession of the said properties in usufruct and swear under oath to take good care and return them at the end of the usufruct.
RULE ON ORDINARY REPAIRS
Art. 583: GENERAL RULE: The usufructuary BEFORE entering upon the enjoyment of the property is OBLIGED: 1.
To give SECURITY, binding himself to fulfill the obligations imposed upon him.
To make after notice to the owner an INVENTORY of all property which shall contain appraisal of the
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Under Art. 592, the usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. Note: These are repairs needed because of an event or an act that endangers the preservation of the thing. (as distinguished from deterioration under Art. 572).
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Conditions for liability: 1. 2. 3. 4.
They are required by normal or natural use; They are needed for preservation; They must have occurred during the usufruct; They must have happened with our without the fault of the usufructuary;
Note: If the naked owner had demanded the repair, and the usufructuary still fails to do so, the owner may make them personally or thru another at the expense of the usufructuary.
RULE ON EXTRA-ORDINARY REPAIRS Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent.
Immovable, meaning of the term “immovable” must be construed in its common and not legal sense. Hence it refers to immovables by nature, such as lands, roads and buildings. Servient estate - is one which is burdened by a servitude; Dominant estate - is one that is benefited as a result of an easement. In Quimen vs. CA, 257 SCRA 163, an easement is a real right on another’s property, corporeal and immovable for the benefit of another immovable, whereby the owner of the latter must refrain from doing or allow somebody else to do or something to be done on his property, for the benefit of another person or tenement. It is inseparable, indivisible and perpetual, unless extinguished by causes provided by law. Characteristics of easement: 1. 2.
Rules governing the payment of debts of the naked owner if the usufruct is a universal one (constituted on the whole of a patrimony; and the naked owner has debts or is obliged to make periodical payments. §
If there is stipulation to pay the debts of the naked owner, apply Art. 758 :
3.
a.
Pay only for prior debts and not for debts contracted after the usufruct has been made, unless there is a declaration to the contrary; Pay only for debts up to the value of the property in usufruct unless, the contrary is intended.
4.
If there is no stipulation to pay the debts of the naked owner, apply Art. 759:
6.
b. §
a. b.
As a rule, there is no obligation to pay; The only exception is that when the usufruct was constituted in fraud of creditors.
“In fraud of creditor ” – when at the time of the constitution of the usufruct, the naked owner did not reserve sufficient property to pay his debts. This is presumed. QUESTION: May usufruct be constituted over a real property in favor of an alien? In Ramirez vs. Vda. De Ramirez, 111 SCRA 704 , a usufruct over parcels of land made by a Filipino in favor of an Austrian woman is valid because ownership of the land is not vested in the usufructuary. What is proscribed by the Constitution is ownership by an alien.
5.
Inseparability – easements or servitudes are merely accessories to the tenements to which they are appurtenant. They are inseparable, hence, intransmissible. They cannot be alienated separately from the tenements to which they pertain. Thus, they cannot be alienated independently of the real property to which they are attached. In Valisno vs. Adriano, 161 SCRA 398 , the alienation of tenements carries with it the alienation of the servitudes pertaining to them. Indivisibility – Both dominant and servient estate may be divided between two or more persons. But the partition will not modify the easement. Each of the servient owners shall bear the burden of the easement on the part corresponding to his share in the immovable property. Easements may also be: 1.
EASEMENTS OR SERVITUDES Easement is an encumbrance imposed upon an immovable for the benefit of: a. b. c.
Community; personal easement One or more persons; Another immovable belonging to a different owner (see Art. 614) = real easement.
It is a real right; Imposable only against another’s property and never in one’s own property; it can exist only when the servient estate and the dominant estate belong to two different owners; It is a form of limitation on ownership and a restriction on the enjoyment of one’s own property; It is inseparable and indivisible; it cannot be separated from the tenement to which it belongs or divided even if there is division of the tenement; (see Arts. 617 & 618) It is intransmissible (unless the tenement affected is also transmitted or alienated; It is perpetual unless extinguished.
According to the MANNER they are exercised or used: a.
CONTINUOUS easements - are those the use of which is or may be INCESSANT (without any interruption) or without the intervention of any act of man; Note: Here, for easement to be “continuous” the use does not have to be without interruption; it is enough that it MAY BE incessant; Note: The distinction between continuous and discontinuous easements refers only to the exercise of
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ü
the servitude, but not to the essence, because the servitude exists continuously, whether it is being used or not. Examples:
b.
Easements of drainage - the fact that water flows in it signifies continuous use but the absence of any flow does not make it non-continuous. It is enough that the flow of water may be without interruption;
ü
2.
How are easements established?
According to whether or not their EXISTENCE is indicated:
Art. 619. Easements are established either by law (legal easements) or by the will of the owners (voluntary easements).
a.
Modes of acquiring easements:
APPARENT Easement - those made known and continually kept in view by external signs that reveal the use and enjoyment of the same. Note: The sign need not be seen but should be susceptible of being seen.
Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. a.
Examples: Dam; Window in a party wall visible to both owners; Right of way if there is an alley or a permanent path. b.
Continuous and apparent easements (meaning they are continuous and apparent at the same time) may be acquired by : ¬
NON-APPARENT Easements - they show no external indication of their existence.
¬
Examples: (in general, negative easements) Easement of not building to a more than certain height; A right of way if there is no visible path or alley. 3.
Easement of light and view on openings made on one’s OWN WALL.
When a person makes an opening on his own wall to admit light below the ceiling joist, and he acquires a servitude to admit such light, the servitude is a negative one, because: It imposes upon the owner of the adjacent tenement the obligation not to construct on his own land in such a manner as to obstruct the light.
DISCONTINUOUS Easements - they are used at intervals and depend upon the acts of man. Example: Easement of right of way because it can be exercised only if a man passes or puts his feet over somebody else’s land.
NEGATIVE Easements - Here, the owner of the servient estate is prohibited to do something which he could lawfully do were it not for the existence of the easement. (a.k.a. servitude of limitation) Example:
Easements of aqueduct - it is considered as continuous (at least, for purposes of prescription) even though the flow of water may not be continuous, or its used depends upon the needs of the dominant estate, or upon a schedule or alternate days or hours. b.
The owner of the servient estate has the duty to cut off the branches of his tree extending over the neighboring estate.
Title (Any kind of juridical act or law sufficient to create the encumbrance i.e.: contract, donation, testamentary succession.) Prescription (10 years whether in good faith or in bad faith). Note: see Art. 1115 - general rules on prescription are not applicable in cases of prescription provided for by special or particular provisions.
According to PURPOSE of the easement or nature of the limitation :
b.
Discontinuous and apparent - only by title;
a.
c.
Continuous and apparent - only by title;
d.
Discontinuous and non-apparent - only by title.
POSITIVE Easement - Here, the owner of the servient estate is OBLIGED: (a.k.a servitude of sufferance) (a) to allow something to be done on his property; or (b) to do something himself on his property. Example: ü
Easement of light and view on openings made on a PARTY WALL.
If one opens a window on a party wall the other owner may close it anytime. However, if he does not close it, and the other owner acquires the easement by prescription, the other owner can no longer close it. Therefore the owner of the servient estate is allowing something to be done on his property. Note: Easement of light and view on a party wall. Here, the owners of such wall permit the encumbrance to burden their common wall.
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Rule (Art. 621) in order that continuous and apparent easements may be acquired thru prescription: a.
If easement is POSITIVE: ¬
The period of prescription is counted from the day of the dominant estate began to exercise it:
Example: A and B are neighbors and they own a party wall. If A makes an opening or window in the party wall in 1988, B can close it anytime before 1998. Because if by the time the window is still open, A has already acquired the easement of light and view by prescription of 10 years, counted from the opening of the window. Note: A window on a party wall is something allowed by a co-owner to be done on his own property and may
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therefore give rise to a positive easement of sufferance. b.
If the easement is NEGATIVE: ¬
Obligations of the dominant estate: ¬
He cannot alter the easement (Art. 627);
¬
He cannot make it more burdensome (Art. 627);
The period is counted from the date of NOTARIAL PROHIBITION made upon the servient estate.
Example: “A” and “B” are neighbors. On his building's wall, “A” opened a window beneath the ceiling joist to admit light, in 1978. Even after ten years (1988), “B” may still obstruct the light by constructing on his own lot a building higher than “A's” unless “A” makes a notarial prohibition prohibiting “B” from making the obstruction. QUESTION: If in 1984, “A” makes a prohibition, may “B” still make the obstruction? A: Yes, because, it is only in 1994 (ten years after the notarial prohibition) when “A” may be said to have acquired the negative easement of light and view. After 1994, “B” may no longer obstruct.
APPARENT SIGN OF EASEMENT
Note: Article refers not to an existing sign but a sign of an existing easement. It is the servitude between the two tenements which must exist and not the sign thereof. Rights of the dominant estate: ¬
¬
To exercise the easement and all necessary rights for its use including accessory easement (Art. 625);
¬
¬
¬
¬
This must be at his own expense; He must NOTIFY the servient owner; Select convenient time and manner; He must not alter the easement nor render it more burdensome.
To ask for a MANDATORY INJUNCTION to prevent impairment or obstruction in the exercise of the easement as when the owner of the servient estate obstructs the right of way, building a wall or fence (see: Resolme vs. Lazo, 27 Phil 416 ); To RENOUNCE totally (for an easement is indivisible) if he desires exemption from the contribution to expenses (Art. 628);
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ü
In the easement of right of way, he cannot increase the agreed width of the path, nor deposit soil or materials outside the boundaries agreed upon (for the acts would be increasing the burden). But he may allow others to use the path (this really does not increase the burden) except if the contrary has been stipulated. (see: Valderama vs. North Negros Sugar Co., 48 Phil 492 )
ü
If there be several dominant estates each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate (and not in proportion to the value of each estate). In the absence of proof, the benefits are presumed to be equal.
To retain ownership and possession of the portion of his land affected by the easement (Art. 630) even if indemnity for the right is given (as in the case of easement of right of way) (Art. 649), unless the contrary has been stipulated; To make use of the easement, unless deprived by stipulation provided that the exercise of the easement is not adversely affected (Art. 630), and provided further that he contributes to the expenses in proportion to the benefits received, unless there is a contrary stipulation (Art. 628, par. 2); To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant estate. (Art. 629, part. 2)
Obligations of the servient estate: ¬
¬
¬
To make on the servient estate all works necessary for the use and preservation of the servitude, BUT: 1. 2. 3. 4.
Thus he cannot use the easement except for movable originally contemplated;
Rights of the servient estate: ¬
Art.624. The existence of an apparent sign of easement between two estates, established or maintained by the owner or both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively or passively, unless at the time the ownership of the two estates is divided, the contrary should be provided in the title of the conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed . This provision shall also apply in case of the division of a thing owned in common by two or more persons.
ü
¬
He cannot impair the use of the easement (Art. 629, par. 1) He must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation. (Art. 628, par. 2); In case of impairment, to restore conditions to the status quo at his expense plus damages. (In case of obstruction, as when he fences the original right of way, and offers an inconvenient substitute way, which is farther and requires turning at a sharp angle, he may be restrained by injunction.) See; Resolme vs. Lazo, 27 Phil. 416 ; To pay for the expenses incurred for the change of location or from of the easement (in the proper case). See: Art. 629, par. 2
MODES OF EXTINGUISHMENT OF EASEMENTS Art. 631. Easements are extinguished: 1.
By MERGER: ¬
The merger must be absolute (without any condition), complete (not partial) and not temporary. Thus, if the
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owner of the servient buys the whole portion affected, the merger is complete, and the easement is extinguished. But if the portion bought is not the portion affected, the easement naturally remains.
5.
WAIVER or RENUNCIATION of the dominant estate: ¬
Examples: ü
Temporary merger :
6.
Q: The dominant owner sold a retro his estate t o B, the servient owner. Is the easement extinguished? A: No, it is only suspended for the merger is only temporary. It is revived when the property is redeemed. ü
2.
As a general rule, the renunciation must be express, clear and specific (otherwise it may be confused with noneuser). However, it may be tacit for as long as there are acts which clearly reveal it beyond doubt.
REDEMPTION agreed upon: ¬
7.
Conditional merger : The dominant estate was donated to the servient estate, but it was stipulated that if the servient owner later marries X, the property reverts to the dominant owner. Pending the resolutory condition, the merger is considered temporary, and the easement is merely suspended. When the servient owner marries X, the easement is revived. If no marriage takes place (as when X dies) the easement really is extinguished.
OTHER causes: a.
Expropriation of the servient estate;
b.
Annulment, recession or cancellation of the title that constituted the easement;
c.
Abandonment of the servient estate;
d.
Resolution of the right of the granter to create the easement (as when there is redemption of the property sold a retro because of the exercise of the right of conventional redemption);
By NON-USER for 10 years: ¬
¬
Non-user refers to an easement that has once been used because one cannot discontinue using what one never used. Non-user means voluntary abstention and not due to fortuitous event, because the basis of this cause is presumptive renunciation.
LEGAL EASEMENTS Art. 634. Easements imposed by law have for their object either public use or the interest of private persons. Legal easements - those imposed by law and which have for their object either: a.
Public use - governed by special laws (i.e. Law on Waters; Irrigation Law; Water Code);
b.
The interest of private persons - governed by the provisions of the Civil Code; agreement between the parties; general or local laws.
Note: From what time to compute?
3.
This is voluntary redemption, existing because of a stipulation. Stipulations may provide conditions under which the easement would be extinguished.
a.
Discontinuous - (like right of way) from the time it ceased to be used.
b.
Continuous - (like aqueduct) from the day on which an act contrary to the same took place. Thus the erection of works incompatible with the exercise of the easement or totally obstructing the servitude, agreed to by the owner of the dominant estate, amounts to a tacit renunciation and extinguishes the servitude. (see: Ongsiako vs. Ongsiako, 3-30-57 )
Different kinds of legal easements: 1.
Easement relating to: ¬
By IMPOSSIBILITY OF USE or BAD CONDITION of the tenement:
¬
waters - natural drainage of lands (Art. 637); natural drainage of buildings (Art. 674); easement on riparian banks for navigation; floatage and salvage (Art. 638) - easement of a dam (Arts. 639, 647); easement for drawing water or for watering animals (Arts. 640-641); easement of aqueduct (Arts. 643-646); easement for the construction of a stop lock or sluice gate.
The impossibility of using the easement, which arises from the condition of the tenements, only suspends the servitude, until such time when it can be used again. An example of this would be the flooding of the servient tenement over which a right of way exists. Unless, extinguishment is caused by the necessary period for non-user.
2.
Right of way;
3.
Party wall;
4.
Light and view;
4. By EXPIRATION of the term or FULFILLMENT of the condition:
5.
Drainage;
Example: An easement was agreed upon to last till the owner of the dominant estate becomes a lawyer. When the condition is fulfilled the easement is extinguished.
6.
Intermediate distance;
7.
Easement against nuisance;
8.
Lateral and subjacent support.
¬
¬
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2.
Annoys or offends the senses. (ex: Too much noise or horn blowing; a chimney which renders a house uninhabitable due to excessive smoke)
3.
Shocks, defies or disregards decency or morality. (ex: Public exhibition of a naked person; strip-teasing; public display of nude posters.)
EASEMENT OF RIGHT OF WAY Art. 649. Easement of right of way. Definition: the easement or privilege by which one person or a particular class of persons is allowed to pass over another's land, usually through one particular path or line. The term right of way may either refer to the easement itself or the strip of land over which passage can be done.
Note: The standard of morality changes. So that what was immoral 20 years ago may not be immoral today. The third instance then depends on time, place and standard of morality of countries and people.
Requisites: a.
The property is surrounded by the estates of others;
4.
b.
There is no adequate outlet to a public highway. (If outlet is thru the water, like a river or sea, under Spanish law, the easement cannot be demanded for there exists an adequate outlet; it is believed that in Philippines, a distinction must be made, depending on danger, convenience and cost.);
Obstructs or interferes with the free passage of any public highway or streets, or any body of water. (ex: houses erected on public streets)
5.
Hinders or impairs the use of property. (ex: Illegal constructions on another’s land)
c.
What are the different kinds of nuisance?
There must be payment of proper indemnity, (but later on, the amount may be refunded when easement ends, see: Art. 655);
d.
It must be established at a point least prejudicial to the servient estate. (This is generally but not necessarily the shortest distance);
e.
The isolation must not be due to the proprietor's own acts (as when he has built enclosing walls, see : Art. 649);
f.
Demandable only by the owner or one with a real right like a usufructuary. (The lessee should ask the lessor to demand the easement from adjoining estates.)
1.
Public or private nuisance (Art. 695): ¬
¬
Note: The onus or the burden of proof is upon the owner of the dominant estate to show the specific averments in his complaint the existence of the requisites or preconditions enumerated.
2.
QUESTION: Can there be judicial easement? ¬
3.
Private nuisance – One which violates only private rights and produces damage to but one or few persons and cannot be said to be public.
Nuisance per se or nuisance per accidens: ¬
In La Vista Association vs. CA, 278 SCRA 498 , when the court says that an easement exists, it is not creating one. For even an injunction cannot be used to create one as there is no such thing as judicial easement. The court merely declares the existence of an easement created by the parties.
Public nuisance – the doing of or the failure to do something that injuriously affects safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public. It affects a community or neighborhood or any considerable number of person although the extent of the annoyance, danger or damage upon individuals may be unequal.
Nuisance per se – a nuisance at all times and under all circumstances or conditions. Nuisance per accidens - a nuisance only under certain circumstances or conditions.
Attractive nuisance – This is any contrivance which is very attractive to children but very dangerous to them.
REMINDER: NUISANCE
•
Why is nuisance a modification of ownership? Because if one’s property becomes a nuisance, he can be deprived of its enjoyment and even be deprived of its ownership. So, if a house is about to collapse and may cause injury to others, the owner can be compelled to demolish the house.
•
An attractive nuisance is not illegal. It may be legal or legitimate thing but because of its nature, it can easily injure children, that is why it is called attractive nuisance. Example: firearms. If one is an owner of an attractive nuisance, he is required to exercise the highest degree of diligence to prevent it from being played by children.
NUISANCE, defined:
Hidalgo Enterprises vs. Balandan 91 Phil. 488
Art. 694 provides: A nuisance is any act, omission, establishment, condition of property, or anything else which:
FACTS: A certain ice-plant factory maintained two big tanks full of water in a place where children pass by. A boy 8 years of age passed by and entered the premises of the factory and took a bath in one of the tanks. While swimming, the boy drowned and died. The parents of the boy filed an action for damages against the factory alleging that the tank full of water was an attractive
1.
Injures or endangers the health or safety of the others. (ex: House in danger of falling; explosive factory in a residential area.
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nuisance and yet the factory did not provide any precaution to avoid injury.
b.
CIVIL ACTION;
c.
EXTRA-JUDICIAL ABATEMENT (abatement, without judicial proceedings. (Art. 699);
The following issues were raised: 1.
Whether or not water can be considered an attractive nuisance. The SC held that water in any form is not an attractive nuisance. Nature in itself has created streams, lakes, and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger, children are to know the danger.
2.
Whether on not the tank full of water is an attractive nuisance? It is neither an attractive nuisance. Any imitation of nature, like a swimming pool, is not an attractive nuisance. So, if the owner of a private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, he is not liable.
Note: Remedy (b) and (c) above may be brought by any private individual if the nuisance is specially injurious to himself. ¬
If it is a PRIVATE NUISANCE, there are 2 possible remedies: a.
Civil action; or
b.
Abatement, without judicial proceedings (Art. 705)
QUESTION: What are the requisites for the abatement of nuisance, whether public or private, without judicial proceedings? (Art. 703 and 704) ANSWER:
Who can be liable for damages for the nuisance cause? The owner or possessor who originally caused the nuisance and the subsequent owner or possessor of the property are jointly and severally liable. (Art. 696: Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it.)
a.
There must be showing that the nuisance is specially injurious to the person seeking the abatement of nuisance; (Art. 703)
b.
That demand be first made upon the owner or possessor of the property to abate the nuisance;
c.
That such demand has been rejected or ignored;
d.
That the abatement must be approved by the City Engineer in Manila and other chartered cities, and in the provinces, by the Provincial Health Officer and executed with the assistance of or attended by a member of the local police force;
e.
That the abatement must be done in such a way that it does not breach public peace, or do unnecessary injury;
f.
That the value of the thing to be abated does not exceed P3,000.
Who are liable? In general: a. b. c. d. e.
One who creates; All who participates; One who adopts; One who continues a previously existing nuisance; One who refuses to abate nuisance.
If a property which has already caused nuisance is removed, is it a defense? A: Art. 697: NO, the abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. May an action for abatement of a nuisance prescribe? A: NO, an action for abatement of a nuisance is one which is imprescriptible. A nuisance can be abated anytime. Art. 698: Lapse of time cannot be legalize any nuisance whether public or private. Art. 1143, 2nd par, an action to abate a public or private nuisance is not extinguished by prescription: What are the remedies against a nuisance? A: It depends on whether it is a public or private nuisance. ¬
If it is a PUBLIC NUISANCE, there are 3 possible remedies: a.
CRIMINAL PROSECUTION under the Penal Code or any local ordinance [Note: This remedy is instituted by public officers (ordinarily the mayor)];
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Note: ¬
¬
Criminal prosecution is not mentioned. However, if a crime has been committed as defined in the Revised Penal Code, criminal prosecution can proceed. If the nuisance to be abated is more than P3,000.00 it cannot be abated without judicial proceedings. It can be abated only through a criminal or civil action in court as the case may be.
When may a private person or a public officer extra judicially abating a nuisance be liable for damages? Art. 707: 1. 2.
If he causes unnecessary injury; or If an alleged nuisance is later declared by the courts to be not a real nuisance.
Cases: a. b. c. d. e.
Pp vs. de Guzman, et. al., 90 Phil. 132 Espiritu vs. Municipal Council, 102 Phil 867 Iloilo Cold Storage vs. Mun. Council, 24 Phil. 471 Canlas vs. de Aquino, 2 SCRA 814 San Rafael vs. City of Manila, 46 SCRA 40
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f. g.
Velasco vs. Manila Electric, 40 SCRA 342 Ramcar vs. Millar, 6 SCRA 517
DIFFERENT MODES OF ACQUIRING OWNERSHIP
3.
The property seized must be susceptible of appropriation (either unowned or abandoned property);
4.
There must be intent to appropriate;
5.
The requisites or conditions of the law must be complied with (i.e.: good faith; proper title; legal period of time).
Modes of acquiring ownership: a.
ORIGINAL MODE: (Ownership is acquired for the first time)
b.
1.
Occupation (hunting, fishing, hidden treasure);
Art. 714. The ownership of a piece of land cannot be acquired by occupation.
2.
Intellectual Creation (books, copy rights, patents, letters);
Reasons: Because a land that is not shown to belong to anyone is presumed to be a public land;
DERIVATIVE MODE: (There is merely a transfer of ownership; somebody else was the owner before)
- Occupation as a mode of acquiring ownership refers to movables which are either considered as res nullius or res derelicta.
3.
Succession;
4.
Donation;
5.
Prescription (Art. 1106);
Intellectual Creation is the product of mental labor embodied in writing or some other material form.
6.
Law (Arts. 158, 445, 461, 465, 466, 681, 1434, 1456 – NCC);
Art. 721. By intellectual creation, the following persons acquire ownership:
7.
Tradition (meaning: legal delivery actual/constructive) as a consequence of certain contracts (i.e.: sale, barter, assignment, simple loan or mutuum)
INTELLECTUAL CREATION
¬
¬
MODE - the process of acquiring or transferring ownership.
¬
TITLE - that which is not ordinarily sufficient to convey ownership, but which gives a juridical justification for a mode; that is, it provides the cause for the acquisition of ownership. Example: If “A” sells to “B” a specific car for a specific amount, the sale is the title; by virtue of such title, “A” should now deliver the property to “B”. It is the delivery or tradition that makes “B” the owner; it is the tradition that is the mode.
¬
Art. 713. Occupation is the acquisition of ownership by SEIZING corporeal things that have no owner, made with the intention of acquiring them, and accomplished according to legal rules. Occupation distinguished from possession: ¬
¬
Occupation can take place only with respect to property without an owner; while possession can refer to all kinds of property whether with or without an ownership. Occupation, in itself when proper confers ownership; but possession does not by itself give rise to ownership.
Requisites for occupation: 1.
2.
There must be a seizure of apprehension (note: the material holding is not required as long as there is right of disposition); The property seized must be corporeal (personal) property;
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The composer, as to his musical composition. The painter, sculptor, or other artist, with respect to the product of his art. The scientist or technologist or any other person with regard to his discovery or invention.
Art 722. ¬
¬
OCCUPATION
The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work.
Ownership before publication – exclusive; Ownership after publication – no more exclusive right except when work is copyrighted.
Note: Mere circulation among close friends and associates however, is not considered publication. Art. 723. Letters and other communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However the court may authorize their publication or dissemination if the public good or the interest of justice so requires. Rules: •
•
•
The physical or material object is owned by the person to whom it has been sent. The thoughts, ideas and form of expression contained in the letter belong to the sender or author of the letter. The recipient cannot publish or disseminate the letter, unless: a.
The writer or the writer’s heirs consent;
b.
The public good or the interest of justice so requires as when the:
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•
The publication is necessary for the vindication of the character of the person to whom the letter is addressed. The letter is produced as evidence in court, in the course of the administration of justice, except when t he letter constitutes a privilege communication and cannot be admitted in evidence without the consent of the writer.
COPYRIGHT Nature of Copyright: ¬
¬
It is the exclusive right secured by law to an author or his assigns to multiply and dispose of copies of an intellectual or artistic creation. It is a corporeal right to print and publish, and exist independent of the corporeal property out of which it arises.
The objectives of copyright are: 1.
To encourage individuals to intellectual labor by assuring them of just rewards;
2.
To secure the society of the largest benefit of their products.
Right of a copyright owner: ¬
¬
¬
¬
To print, reprint, publish, copy, distribute, multiply, sell and make photographic illustrations of the copyrighted work. To make translations or other versions or extracts or arrangements or adaptations thereof. To exhibit, perform, represent, produce or reproduce the copyright work. To make any other use or disposition of the copyrighted work.
Extent of the protection: •
•
Concepts, theories, speculations, abstracts of ideas however original they may be are not covered by the protection, because there is no monopoly of theories and speculations of an author. He may transfer these theories of ideas into intellectual products as books, letters or any form of writing or illustration. These are exclusively his. But once caused to be published, his exclusive right over the same causes, except when copyrighted. But the protection extends only in so far as the form, language or style of the production are concerned and not the theories or the ideas themselves. So that when one copies the form, style and language, there is infringement. It should be a copy of the original but similarity alone is not sufficient, what is important though is the copy is so near to the original as to give to every person seeing it the idea created by the original.
Note: Copyright does not extend to the general concept or format of a dating game show. Francisco G. Joaquin & BJ Productions, Inc., vs. Hon. Franklin Drilon, et. al., [G.R. No. 108946, January 28, 1999] FACTS: This is a prosecution for violation of PD 49 [Decree on Intellectual Property]. Joaquin and BJ Productions, Inc. holder of a Certificate of Copyright of a TV dating game show, “Rhoda
Marianne Macayra
and Me”, claimed that IXL Productions & RPN Channel 9 infringed upon their copyright by copying the format and style thereof in its show, “It’s a Date”. HELD: The Court, speaking thru Justice Mendoza, ruled that the format of a show is not copyrightable. The format or mechanics of a television show is not included in the list of protected works in P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them. Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute. P.D. No. 49, in enumerating what subjects are subject to copyright, refers to finished works and not to concepts. The copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides: SECTION 175. Unprotected Subject Matter. Notwithstanding the provisions of Section 172 and 173, no protection shall extend, under this law, to any idea, procedure, system, method or operation, concept, principle discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the days and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof. Cinematographic works and works produced by a process analogous to cinematography or any process for making audiovisual recordings; The copyright does not extend to the general concept or format of its dating game show. Accordingly, by the very nature of the subject of petitioner BJPI’s copyright, the investigating prosecutor should have the opportunity to compare the videotapes of the two shows. Mere description by words of the general format of the two dating game shows in insufficient, the presentation of the master videotape in evidence was indispensable to the determination of the existence of probable cause. As aptly observed by respondent Secretary of Justice: A television show includes more than mere words can describe because it involves a whole spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both dating game shows. The requirement of originality: Originality does not mean novelty or ingenuity, neither uniqueness nor creativity. The law does not impose such requirements. Originality simply means that the work “owes its origin to the author”. It means that the
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work is an independent creation of the author. [See: IPL by Ranhilio C. Aquino, 2003 Ed.]
a.
The work must originate from its author;
b.
It must not be copied;
Excepted from this privilege are works produced by film, slide, television image or analogous process. Otherwise, copyright in them would mean nothing at all, for public display, showing or exhibiting them are precisely the source of economic advantage for their creators, while painters and sculptors derive economic gain from the sale of the work itself.
c.
It must involve some intellectual effort.
However : [see: IPL by Ranhilio C. Aquino, 2003 Ed.]
Requisites:
Note: •
•
Copyright extends to adaptations of the original work. However, in regard to works that are adaptations, such as abridged works, digests, anthologies – There will still be originality sufficient to warrant copyright protection if the author, through his skill and effort, has contributed a distinguishable variation from the older works. In such a case, only those parts which are new are protected by the new copyright. Garfield’s creator obviously has copyright to the comic strips that entertain us with the antics of this strange mutant of a feline. But does the copyright protection operate to bar an entrepreneur from creating Garfield stuffed toys or sculptor from immortalizing the flabby cat in Italian marble? A simpler judicial approach would be to treat the toy or the piece of a sculpture as a derivative work, and thus, to require authority from Garfield’s creator before allowing it legal status. [See: IPL by Ranhilio C. Aquino, 2003 Ed.]
THE INTERLEGO DOCTRINE “There must be in addition some element of material alteration or embellishment which suffices to make the totality of the work an original work. Even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying per se, however much skill or labor might be devoted to the process could not make an original work.” Note: What is protected by copyright is not merely the visual appearance but the work as embodied in a particular artistic medium, example - an artfully blown glass rose versus a transposition of the same rose but into different artistic medium – a pencil sketch. Is there infringement? A skillfully and artistically blown glass rose is protected as a glass rose, so that changing the medium is not infringing the work. [See: IPL by Ranhilio C. Aquino, 2003 Ed.] A copyright precludes trademark registration. In United Feature Syndicate vs. Munsingwear, GR No. 76193, 11-9-89, the SC held that the exclusive rights vested by PD 49 in favor of a copyright owner preclude the appropriation of the same work as a trademark. QUESTION: Would public display of a purchased copyrighted work, like paintings constitute infringement? Generally, there is no infringement. PD 49 and RA 8293 are silent on this point. It is patently absurd to deny a purchaser of a work of art the right to display it publicly and to impose upon him the obligation of concealing it from public view.
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a.
A protected photograph cannot be copied by drawing or by photographic reproduction;
b.
A choreographic work is infringed by a still photo while dance routine is in progress;
c.
A photograph copyright.
of
copyrighted
jewelry
infringes
When is there infringement? Substantial reproduction does not require reproduction of the entire copyrighted work, or even a large portion thereof. If so much is taken that the value of the original work is substantially diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute piracy. It is not the copying, per se, that is prohibited but the injurious effect it has on the author of the copied work. The unfair appropriation of one’s research effort is sufficient injury to sustain a claim. (See: Habana vs. Robles GR No. 131522, 7-09-99) Remedies in case of infringement: a.
Damages;
b.
Injunction;
Effect of expiration: On the final expiration of the copyright term, the whole work falls into the public domain and becomes free and unrestricted. TRADEMARKS General Garments Corporation vs. the Director of Patents and Puritan Sportswear Corporation [G.R. No. L- 24295. September 30, 1971] ISSUE: Whether or not a foreign corporation, unlicensed and unregistered to do business in the Philippines has legal capacity to maintain a suit in the Philippine Patent Office for cancellation of a registered trademark. A foreign corporation which has never done business in the Philippine Islands and which is unlicensed to do business here, but widely and favorably known in the Islands through the use of its products bearing its corporate and trade name has a legal right to maintain an action in the Islands. The purpose of such a suit is to protect its reputation, corporate name and goodwill which have been established through the natural development of its trade for a long period of years. The right to the use of the corporate or trade name is a property right, a right in rem, which it may assert and protect in any of the courts of the world- even in jurisdictions where it does not transact business- just the same as it may protect its t angible property, real or personal against trespass or conversion.
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Ang Si Heng and Salustiana Dee vs. Wellington Dept. Store Inc., Benjamin Chua, S.R. Mending Store Inc. Mendinueto, and Filemon Cosio (G.R. No. L.4531, Jan. 10, 1953) ISSUES: Are geographical indications registrable? When does use of trade name constitute unfair competition? a.
The term “Wellington” is either a geographical name or surname of a person. Geographical names are regarded as common property and it is a general rule that the same cannot be appropriated as the subject of an exclusive trademark or trade name. Even if Wellington was a surname, it cannot also be validly registered as trade name. Therefore an action for violation of trademark cannot be maintained because the right to damages or injunction is granted only to those entitled to the exclusive use of a registered trademark or trade name. (Section 23, Republic Act No. 166)
b.
On unfair competition, while there is a similarity between the trademark or tradename “Wellington Company” and that of “Wellington Department Store,” no confusion or deception can possibly result or arise from such similarity because the latter is a “department store”, while the former does not purport to be so. Moreover, the Supreme Court held t hat the public cannot be deceived that the goods of the plaintiff originate from the defendant’s store because the defendant’s store does not sell clothing apparels bearing the plaintiff’s mark “Wellington”. Neither could such deception by any possibility be produced because the defendant’s store is situated at Escolta, while plaintiff’s store or place of business is located in another business district far away from Escolta. The mere fact that two or more customers of the plaintiffs thought of the probable identity of the products sold by one and the other is not sufficient proof of the supposed confusion that the public has been led into by the use of the name adopted by the defendants. No evidence has been submitted that customers of the plaintiffs-appellants had actually been misled into purchasing defendant’s articles and merchandise.
Crisanta Y. Gabriel vs. Jose R .Perez and Honorable Tiburcio Evalle as Director of Patents (G.R. No. L-24075, January 31, 1974) ISSUE: Whether or not petitioner as exclusive distributor of Respondent became the rightful, owner of the trademark “WONDER”. The exclusive distributor does not acquire any proprietary interest in the principal’s trademark. “In the absence of any inequitable conduct on the part of the manufacturer, an exclusive distributor, who employs the trademark of the manufacturer, does not acquire proprietary interest in the mark which will extinguish the rights of the manufacturer, and a registration of the trademark by the distributor as such belongs to the manufacturer, provided the fiduciary relationship does not terminate before application for registration is filed.” (87 CJS 258-259, citing cases.)
Marianne Macayra
Philippine Refining Co., Inc., vs. Ng Sam and the Director of Patents (Gr No. L-26676, July 30, 1982) Camia Cooking Oil vs. Camia Ham ISSUE: Whether or not registration of the same mark under the same class for non-competitive and unrelated goods may be allowed. HELD: The parties are non-competitive and their products so unrelated that the sue of identical trademarks is not likely to give rise to confusion, much less cause damage to petitioner. While ham and some of the products of petitioner are classified under Class 47 (Foods and Ingredients of Food), this alone cannot serve as the decisive factor in the resolution of whether or not they are related goods. Emphasis should be on the similarity of the products involved and not on the arbitrary classification or general description of their properties or characteristics. The particular goods of the parties are so unrelated that consumers would not in any probability mistake one as the source or origin of the product of the other. “Ham” is not a daily food fare for the average consumer. One purchasing ham would exercise a more cautious inspection of what he buys on account of its price. In addition, the goods of petitioners are basically derived from vegetable oil and animal fats, while the product of respondent is processed from pig’s legs. A consumer would not reasonably assume that petitioner has so diversified its business to include the product of respondent. The term “CAMIA” is descriptive of a whole genus of garden plants with fragrant white flowers. Some people call the “CAMIA” the “white ginger plant” because of its tuberous roots, while children refer to it as the butterfly flower because of its shape. Being a generic and common term, its appropriation as a trademark, albeit in a fanciful manner in that it bears no relation to the product it identifies, is valid. However, the degree of exclusiveness accorded to each user is closely restricted. Esso Standard Eastern Inc., vs. United Cigarette Corp. G.R. No. L-29971, Aug. 31, 1982 Esso Petroleum vs. Esso Cigarette ISSUE: Whether or not the protection afforded by a trademark registration extends to all goods. The goods on which petitioner uses the trademark ESSO, petroleum products, and the product of respondent, cigarettes, are non-competing. Trademark infringement depends on whether or not the goods of the parties are so related that the public may be, or is actually, deceived and misled that they came from the same manufacturer. In cases of related goods, confusion of business could arise out of the use of similar marks, in the case of non-related goods, it could not. In the case at bar, the goods are obviously different from each other – with “absolutely no iota of similitude”. They are so foreign that it is unlikely that purchasers would think that petitioner is the manufacturer of respondent’s goods. One of the factors that show that the goods involved are non-competitive and non-related is the fact that respondent’s goods are beyond Petitioner’s “zone of potential or natural and logical expansion”.
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age, training and education of the usual purchaser, the nature and cost of the article, whether the article is bought for immediate consumption and also the conditions under which it is usually purchased.
Moreover, respondent’s goods are distributed through different channels of trade. SIMILARITY TEST : To determine whether a trademark has been infringed, the mark as a whole must be considered and not as dissected. If the buyer is deceived, it is attributable to the marks as a totality, not usually to any part of it [Del Monte Corporation vs. Court of Appeals, 181 SCRA 410]
•
DISSIMILARITY TEST [or the so-called “visible difference test ”]: In the case of Asia Brewery vs. Court of Appeals (224 SCRA 437), the SC applied the “dissimilarity test” or “visible difference test” in determining whether or not there exists unfair competition. In this case, while the Supreme Court did not abandon the “similarity test”, it nevertheless, qualified the same when it applied the “visible difference test” especially so when the dissimilarities abound. It said: “Besides the dissimilarity in their names, the following other dissimilarities in the trade dress or appearance of the competing brands abound: 1.
•
The SAN MIGUEL PALE PILSEN bottle has a slender tapered neck. The BEER PALE PILSEN bottle has a fat, bulging neck;
2.
The words “pale pilsen” on SMC’s label are printed in bold and laced letters along a diagonal band, whereas the words “pale pilsen” on ABI’s bottle are half the size and printed in slender block letters on a straight horizontal band;
3.
The names of the manufacturers are prominently printed on their respective bottles. SAN MIGUEL PALE PILSEN is “Bottled by San Miguel Brewery Philippines,” whereas BEER PALE PILSEN is “Especially brewed and bottled by Asia Brewery Incorporated, Philippines;
4.
On the back of ABI’s bottle is printed in big, bold letters, under a row of flower buds and leaves, its copyrighted slogan: BEER NA BEER!” Whereas SMC’s bottle carries no slogan;
5.
The back of the SAN MIGUEL PALE PILSEN bottle carries the SMC logo, whereas the BEER PALE PILSEN bottle has no logo;
The Del Monte case involved catsup, a common household item which is bought off the store shelves by housewives and house help who, if they are illiterate and cannot identify the product by name or brand, would very likely identify the product by mere recollection of its appearance. Since the competitor, Sunshine Sauce Mfg. Industries, not only used recycled Del Monte bottles for its catsup (despite the warning embossed on the bottles: “Del Monte Corporation. Not to be refilled.”) but also used labels which were a “colorable imitation” of Del Monte’s label, we held that there was infringement of Del Monte’s trademark and unfair competition by Sunshine. Our ruling in Del Monte would not apply to beer which is not usually picked up from a store shelf by ordered by brand by the beer drinker himself from the storekeeper or waiter in a pub or restaurant.”
•
In Lim Hoa vs. Director of Patents 100 Phil. 214, in rel. to Etepha vs. Director, 16 SCRA 495 , the Supreme Court was more telling: “The court differentiated food seasoning product, a kitchen article of daily consumption, from commodities or articles of relatively great value, such as radio and television sets, air-conditioning units, machinery, etc., where the prospective buyer generally the head of a family or a businessman, before making the purchase, reads the pamphlets and all literature available, describing the article he is planning to buy and perhaps even makes comparisons with similar articles in the market. He is not likely to be deceived by similarity in the trademarks because he makes a more or less study of the same and may even consult his friends about the relative merit and performance of the article or machinery, as compared to others also for sale.
UNFAIR COMPETITION : Alhambra Cigar vs. Mojica March 21, 1914
6.
The SAN MIGUEL PALE PILSEN bottle cap is stamped with a coat of arms and the words “San Miguel Brewery Philippines” encircling the same. The BEER PALE PILSEN bottle cap is stamped with the name “BEER” in the center, surrounded with the words “Asia Brewery Incorporated Philippines;
7.
Finally, there is a substantial price difference between BEER PALE PILSEN (currently at P4.25 per bottle) and SAN MIGUEL PALE PILSEN (currently at P7.00 per bottle). One who pays only P4.25 for a bottle of beer cannot expect to receive San Miguel Pale Pilsen from the storekeeper or bartender.”
Unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person and for the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. Unfair competition, as thus defined, is a legal wrong for which the courts afford a remedy. It is a tort and a fraud. The basic principle is that no one has a right to dress up his goods or otherwise represent them in such a manner as to deceive an intending purchaser and induce him to believe he is buying the goods of another. Actual or probable deception and confusion on the part of customers by reason of defendant’s practices must always appear to be considered as an act of unfair competition.
In the Asia Brewery case, the Supreme Court deviating from the Del Monte ruling further said: “The ruling may not apply to all kinds of products. In resolving cases of infringement and unfair competition, the courts should take into consideration several factors which would affect its conclusion, to wit: the
In addition to that, it is not necessary to show that any person has been actually deceived by defendant’s conduct and lead to purchase his goods in the belief that they are the goods of plaintiff, it is sufficient to show that such deception will be natural and probable result of defendant’s acts. Either actual or probable
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deception and confusion must be shown, for if there is no probability of deception there is no unfair competition.
patents, industrial designs; and petitions for compulsory licensing of patents;
In this regard, the class of purchasers who buy the particular kind of article manufactured must be considered in determining the question of probable deception. This includes incautious, unwary or ignorant purchasers, but not purchasers who make no examination. This is because unfair competition is a case-to-case basis. The fact that careful buyers, who scrutinize closely, are not deceived merely shows that the injury is less in degree but not necessarily mean there is no injury. The same is true with careless purchasers who are deceived simply by the use of ordinary and common forms of putting up goods do not necessarily show unfair competition.
b.
4.
Documentation, Information and Technology Transfer Bureau - Functions: provide technical, advisory and other services relating to the licensing and promotion of technology, and carry out an efficient and effective program for technology transfer; register technology transfer arrangement; and settle disputes involving technology transfer payments];
5.
The Management Information System and EDP Bureau;
6.
The Administrative, Financial and Personnel Service Bureau;
TRIPS [Agreement on the Trade-related aspects of Intellectual Property Rights] What is included in the term: “Intellectual Property Rights”? (Sec. 4 RA 8293) ¬
Copyright and related rights;
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Trademarks and Service Marks;
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Geographic Indications (One which identifies a good as originating in a territory of a trips member); Industrial Designs (Any composition of lines or colors or any three dimensional form, whether of not associated with lines or colors and gives a special appearance to and can serve as pattern for an industrial product or handicraft);
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Patents;
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Layout – designs (Topographies) of Integrated Circuits;
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Protection of undisclosed information [i.e. trade secrets, formula]
INTELLECTUAL PROPERTY OFFICE Functions: •
•
•
To grant patents for inventions;
PATENT What is patent? A grant made by the government to an inventor, conveying and securing to him the exclusive right to make use of his invention for a given period. What are patentable inventions? Any technical solution to a problem in any field of human activity which is new, involves an inventive step and is industrially applicable. It may be, or may relate to: a product; or process; or an improvement of any of the foregoing. (Sec. 21) Example: A new and useful machine; a manufactured product or substance; or an improvement of any of the foregoing. When shall an invention be considered as “new”? ¬
When it is novel; (Sec 23)
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When it does not form part of a prior art.
To register marks, geographic indication, integrated circuits; technology transfer arrangements;
Prior art shall consist of: everything which has been made available to the public anywhere in the world, before the filing date of the application claiming invention, which means that the “invention” is: (a) already known; (b) publicly used ; or (c) already patented or described ;
To administratively adjudicate contested proceedings affecting IPR;
Structure: The IPO is headed by a director general There are 6 bureaus, each headed by a director: 1.
Bureau of Patents; (Functions: search and examination of patent applications and the grant of patents);
2.
Bureau of Trademarks: (function: search and examination of applications for the registration of marks of ownership and the issuance of the certificate of registration);
3.
Bureau of Legal Affairs - Functions: a.
hear and decide opposition to the application for registration of marks; cancellation of trademarks,
Marianne Macayra
exercise original jurisdiction in administrative complaints for violation of laws involving intellectual property rights: Provided , That its jurisdiction is limited to complaints where the total damages claimed are less than P200,000.00: Provided further , that availment of the provisional remedies may be granted in accordance with the Rules of Court];
When an invention is considered useful? When it is capable performing some beneficial function. NON-PATENTABLE INVENTIONS: ¬
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Discoveries, scientific theories and mathematical methods; Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computer; Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on human or animal body;
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Plant varieties or animal breeds or essentially biological process for the production of plants and animals except: micro-organisms and non-biological and micro-biological processes;
A violation of the right which is secured to the inventor by the patent law (IPC) constitutes an infringement. It consists in the making, using, selling of the patented process or instrumentality by any person without authorization on the part of the patentee.
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Aesthetic creations; or
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Anything contrary to public order or morality.
TEST : In order to constitute infringement there must be SUBSTANTIAL IDENTITY (not exact identity) between the two devices.
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Who has a RIGHT to a patent? ü
The right to a patent belongs to the inventor, his heirs or assigns;
ü
When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly. (co-ownership)
ü
If two or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention;
ü
Where two or more applications are filed for the same inventions, to the applicant who has the earliest filing date or the earliest priority date.
ü
The person who commissions the work shall own the patent, unless otherwise provided in the contract;
ü
In the case the employee made the invention in the course of his employment contract, the patent shall belong to : •
•
They are identical: When they perform substantially the same function (or mode or principle) in substantially the same way to obtain the same result, even if they differ in name, form, shape or dimensions. (Doctrine of equivalents) NO INFRINGEMENT: ¬
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The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer; The employer, if the invention is the result of the performance of his regularly assigned duties, unless there is an agreement to the contrary
RIGHT OF PRIORITY An application for patent filed by any person who has previously applied for the same invention in another country, which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of the filing the foreign application: Provided, That :
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When the original machine is improved by the use of different form or combination although performing the same functions. When a single element in the original device is left out in the new device. When the making or using of a patented invention is not conducted for profit and solely for the purpose of research or experiment or for instruction. Preparation of a medicine for individual cases in a pharmacy or by a medical professional in accordance with a medical prescription. When used in any foreign ship or vessel, aircraft or land vehicle for its exclusive needs (not for purposes of manufacture or sale) entering the Philippines temporarily or accidentally; Any prior user who in good faith was using the invention in his business or enterprise prior to the filing or priority date of the application on which a patent is granted. Use by the government or third persons authorized by the government when : a.
Required by public interest. (i.e.: national security; nutrition; health; development of other sectors); or
b.
It is determined by an administrative or judicial body that the exploitation by the owner of the patent is anticompetitive.
a.
The local application expressly claims priority;
b.
It is filed within 12 months from the date of copy of the foreign application was filed;
Note: The burden of proof to show infringement of a patent is on the party who asserts such infringements.
c.
A certified copy of the foreign application together with an English translation is filed w/in 6 months from the date of filing in the Philippines.
Defenses:
Term of Patent: 20 years from the filing date of the application. RIGHT OF PATENTEE: A patentee shall have the exclusive right to make; use and sell the patented machine, article or product, and to use the patented process for the purpose of industry or commerce, thruout the Philippines for the duration of the patent. INFRINGEMENT OF PATENT:
Marianne Macayra
a.
The patent is invalid;
b.
The invention is not new and patentable;
c.
The patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by person skilled in the art;
d.
The patent is contrary to public order or morality.
Remedies: Civil action for damages plus injunction.
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DONATIONS Art. 725. Donation is: An act of liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it.
Note: •
•
Essential requisites: a.
The reduction in the patrimony of the donor;
b.
The increase in the patrimony of the donee;
c.
The intent to do an act of liberality.
Note: When a person gets a life insurance and names a third person as his beneficiary, and the insurance becomes payable by the death of the insured, there is a donation in favor of the beneficiary – not in the sum received by him from the insurer, but in the total amount of premiums that have been paid by the insured. This is the only amount that leaves the patrimony. If the amount of premiums, however, exceeds the insurance, there is donation only to have extent of the insurance. This is the only amount that is added to the patrimony of the donee. Classification of donations: 1.
Simple - the cause is pure liberality (no strings attached);
2.
Remuneratory - to reward past services which do not constitute demandable debt (ex: A donation to one who saved the donor’s life). Note: The phrase “they do not constitute a demandable debt ” (Art. 726) means that the service which was rendered did not produce an obligation demandable against the donor; or if it had, such obligation has been renounced in favor of the donor. EXAMPLE: A agreed to review B for the bar examinations for a fee of P10,000.00. Later, B passes the bar examination, and as a gratitude gives A a parcel of land worth P20,000.00. The remuneratory donation here is only with respect to the excess of P10,000.00 because, the services of A constitute a demandable debt, unless, A in the meantime renounces his fees and in such case , there is donation to the extent of P20,000.00.
3.
Conditional or Modal – when the donation imposes upon the donee an obligation in favor of the donor himself or a third person or even the public. EXAMPLE: A piece of land is donated to the city in order that it may be converted into a park or public market.
Form to be followed: ¬
In simple/remuneratory donations - form of donations
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Onerous donations - contracts.
Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed.
Marianne Macayra
•
It is supposed to be simple (no strings attached), why is there a need to have a condition, much less, impossible? If the condition is not void, then the donation is not really simple, for it has a burden imposed upon the donee. What is voided here is the impossible condition and not the donation itself.
FACTS: Fernando and Placido Manalo “donated” a parcel of land to their niece, Leoncia, on the condition that the latter would shoulder the “funeral expenses” of the former when they die. The donation was done in a private instrument. Is the donation valid? HELD: Yes, the donation is valid because it is an onerous donation. It is governed by the law on contracts. A private instrument was sufficient. [Manalo vs. De Mesa 20 Phil. 496 ]
DONATION INTER-VIVOS Art. 730. Effect of the fulfillment of the suspensive condition beyond the lifetime of the donor. EXAMPLE: “A” donates a piece of land to “B” on the condition that “X”, “A’s” son becomes a lawyer. The fulfillment of the condition even after the death of the donor does not affect the nature of the donation as inter vivos. The fulfillment retroacts to the time of the donation.
Art. 731. When a person donates something, subject to the resolutory condition of the donor’s survival, there is donation inter-vivos. Note: Fulfillment of a resolutory condition, its effect. EXAMPLE: “A” was about to undergo a delicate operation. He donated to “B” a parcel of land subject to the condition that if “A” survives the operation, “B’s” ownership over the land would terminate, and the same would revert to “A”. But if “A” dies, there is donation inter vivos not mortis causa. When is donation perfected? Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee; Art. 746. Acceptance must be made during the lifetime of the donor and the donee. Who may donate? Art. 735. All persons who may contract and dispose of their property may make a donation. Art.737. The donor’s capacity shall be determined as of the time of the making of the donation. REMINDER: The phrase “as of the time of the making of the donation” should really mean “as of the time of the perfection of the donation”. So that, a physically incapacitated person (i.e. unemancipated minors or insane) may still validly donate provided that at the time of his knowledge of the acceptance by the donee, the incapacity is not present. Although, it is submitted
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that the donation is voidable following the law on contracts which are suppletory to simple donation – as in vitiated consent. The capacity of the donee is determined at the time of the perfection of the donation (at the time he makes known to the donor his acceptance of the donation). Capacity of the Husband or the Wife: Husbands or wives may donate their own capital or paraphernal properties without the consent of the other. But with respect to conjugal or community property, they cannot make donations without the consent of the other, except : moderate donations for charity or on occasion of family rejoicing or family distress, (see : Art. 98 & Art. 125 of the Family Code ); see also Arts. 113-115 of the Family Code.
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Excessive or inofficious donation is not void but merely reducible. Donations cannot comprehend future property (Art. 751), because the donor cannot give what he does not have, except in cases of contractual succession and donations by reason of marriage (see : Art. 84, Family Code).
What are the formalities of a donation? With respect to IMMOVABLE property: (See: Art. 749)
May husbands and wives donate to each other? Art. 87. Family Code – Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to person living together as husband and wife without a valid marriage.
The sufficiency can be determined by the court in accordance with prudence and the exercise of reasonable discretion.
ü
The donation must be in a PUBLIC DOCUMENT.
ü
The acceptance must also be in a PUBLIC DOCUMENT.
With respect to MOVABLE property: ü
The donation must be in writing.
ü
If the value of the thing is P5,000.00 or less : •
Reason: To protect the creditors and the weaker spouse from the dominance of the other. What is moderate is relative. This may be determined based on the financial status of the family. Capacity of a minor : For purposes of marriage, a person may contract marriage at the age of 18 years. But may he enter into a marriage settlement wherein he may dispose of his future property in favor of his prospective spouse without the intervention of the parents? Art. 78. (in relation to Art. 234 and 236 of the Family Code) which requires that the parents are required to be made parties to the marriage settlements was impliedly repealed by RA 6809, wherein marriage settlements may now be entered by the child personally even without the intervention of the parents.
•
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a.
Those made between persons who are guilty of adultery or concubinage at the time of the donation; Notes:
•
What may be donated? Art. 750. The donation may comprehend all present property of the donor, or part thereof, provided he reserves in full ownership or in usufruct, sufficient means for the support of himself, and all of relatives who at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected.
•
•
•
REMINDER:
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In both instances (where the donation is either oral or written), the acceptance may be made orally (express or implied) or in writing;
See: Arts. 739 and 740
•
The donation may comprehend all present property, meaning that which the donor can dispose of at t he time of the donation but in all instances, the donor cannot give more than what he can give by will (meaning, a person cannot receive more than what the giver can give by virtue of a will). Otherwise, the donation is considered inofficious.
may be in writing;
SPECIAL DISQUALIFICATION
Read also: Donations by reason of marriage – Arts. 82 – 87, Family Code.
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may be oral but simultaneous delivery of the thing and the document representing the right donated is required;
b.
This refers to donations between paramours. There is no necessity of proving the guilt in a criminal proceedings, it is enough that the guilt may be proven by a preponderance of evidence in a civil action for the declaration of nullity of the donation. The commission of the adultery or concubinage must be at the time of the donation and not after. When the purpose of the donation is to initiate, continue, resume or compensate the illicit relations between the paramours, the donation is void. But if the intention is to indemnify the damaged caused to the other at the time of separation, the donation is valid.
Those made between persons found guilty of the same offense, in consideration thereof; Note: •
If a person agrees to kill another in consideration of a donation to be made in his favor, the donation is void.
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•
c.
Here, since the consideration is illegal, the donation, must necessarily be void; There must be a conviction.
b. •
Those made to a public officer or his spouse, descendants or ascendants by reason of his office. Note: •
The purpose for the rule is to prevent bribery;
•
The donation is void by reason of public policy.
Art. 760. Every donation inter-vivos made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced by the happening of any of these events:
a.
The priest who heard the confession of the donor during his last illness, or
b.
The minister of the gospel who extended spiritual aid to him during the same period; The relatives of such priest or minister of the gospel within the 4th civil degree, the church the order, chapter, community, organization, or institution to which such priest or minister belongs;
d.
The guardian with respect to donations made by the ward in his favor before the final accounts of the guardianship have been approved, even if the donor should die after the approval thereof; nevertheless any donation made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;
e.
Any physician surgeon, nurse, health officer, or druggist who took care of the donor during his last illness;
f.
Individuals, associations and corporations permitted by law to receive donations.
not
Note: The incapacity to inherit by reason of unworthiness provided in Art. 1032 is not included within the scope of the above article. A donation made to a person who falls under the provisions of said article would be valid, because a testamentary provision made in favor of such person after the testator has knowledge of the act of unworthiness would constitute pardon under Art. 1033. On the other hand, if the donation has already been made when the cause of unworthiness occurs, the donation is revoked only by the causes mentioned in Arts. 760, 764 and 765. RULES IN CASES OF DOUBLE DONATIONS: •
Apply the rule on double sales, Art. 1544, NCC; a.
Movable property - the ownership shall be transferred to the donee who have first taken possession thereof in good faith.
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If there be no inscription, the ownership shall pertain to the donee who in good faith was the first in the possession. And in the absence thereof, to the donee who presents the oldest title, provided there is good faith.
REVOCATION AND REDUCTION OF DONATIONS
Art. 740. Incapacity to succeed by will shall be applicable to donations inter-vivos. The following persons are disqualified:
c.
Immovable property – the ownership shall belong to the donee who first recorded it in the registry of property.
a.
If the donor, after the donation, should have legitimate or legitimated children, even though they be posthumous; BIRTH
b.
If the child of the donor whom the latter believed to be dead when he made the donation, should turn out t o be living; REAPPEARANCE
c.
If the donor should subsequently adopt a minor child. ADOPTION
Note: ¬
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When the revocation should take effect: The donation is revoked or reduced by the happening of any of the events enumerated in Art. 760. In other words, the revocation or reduction takes place ipso jure. No action is necessary to revoke or reduce the donation which is already considered by law as revoked. Court action is necessary however, when the donee refuses to return the property. In such case, the decision of the court will be merely declaratory of the revocation – it will not be a revocatory act. Birth, reappearance and adoption as causes for the revocation or reduction. The article seeks to protect the presumptive legitimate or the expected legitime of the heir. The value of the estate to be considered is at the time of the birth, reappearance or adoption. The action to reduce must be brought within 4 years, see: Art. 763. This action cannot be renounced. The article applies only to donation inter vivos and not to: a. b. c.
donations propter nuptias (which can be revoked only for causes enumerated by law); onerous donations (for these are really contracts); mortis causa (for this is revocable for any or no cause at all).
ILLUSTRATION: “X” has no child. At the time he gave the donation of P10,000.00, he had P100,000.00. Therefore after the donation, he had P90,000.00 left. Later, he adopted a minor child. At the same time he made the adoption he had only P5,000.00 left. Should the donation be reduced? If so, how much?
