ARTICLE 562
NORMAL USE EXPLOITATION
“Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides”
Illustration:
or
Notes: Real or personal property as well as rights (as long as it is not strictly personal and intransmissible, and as long as it has an independent existence) may be an object of usufruct2
If a party has a usufruct in a real estate property, he or she has the full right to use it or rent it out and collect the rental income without sharing it with the actual owner, as long as the usufruct is in effect
The usufructuary has the right of action to: (1) protect the usufruct itself and (2) the exercise of the usufruct.3
Definition:
ARTICLE 563 “Usufruct is constituted by law, by the will of private persons expressed in acts inter
vivos or in a last will and testament, and by prescripti on” Explanation – Article Article 563 provides the classification of usufructs as to ORIGIN A legal right (real right) accorded to a person or party that conf ers a temporary right to use and derive income of benefit from someone else’s property. Usufruct is usually conferred for a
Classifications4
limited period or until death. While the usufructuary has the right to use the property, he or she cannot damage or destroy it, or dispose the property (investopedia)
Legal (created by law)
Elements1 Essential
Natural
(present unless the contrary is stipulated)
1. It is a REAL RIGHT 2. It is of TEMPORARY NATURE 3. Its purpose is to ENJOY THE BENEFITS and derive all the advantages from the object as a consequence of
Obligation of conserving or preserving the form and substance (value) of the thing
Accidental depending parties)
(present or absent on stipulation of
1. Pure or conditional usufruct 2. The number of years 3. Whether is it in favour of one or several
Example – Usufruct of parents over property of their unemancipated children (Article 321)
Voluntary (or Conventional) 1. Created by will of parties intervivos (as by contract or donation) 2. Created mortis causa (as in the the last will or testament)
2 Ibid. 3 Ibid. 1 Paras,
Civil Code Volume 2 - Property
4 Ibid.
2 3
Mixed (or prescriptive) Created both by law and act of a person
ARTICLE 564
ARTICLE 565
“Usufruct may be constituted on the whole or the part of the fruits of the thing, in
“The rights and obligations of the usufructuary shall be those provided in the title
favour of one or more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or transmiss ible”
constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed”
This article lays down what rules shall govern a usufruct Explanation: Article 564 provides the classification of usufruct according to (1) (2) (3) (4)
quantity or extent of the fruits or object number of persons enjoying the right quality and kind of objects involved terms and conditions
According to quantity or extent of the fruits or object
Number of person enjoying the right
Quality and kind of objects involved
Terms and conditions
As to fruits (depending on the amount of fruits given) Total or partial As to object Universal (over entire patrimony) or particular (only individual things are included) Simple One usufructuary enjoys Multiple Several usufructuary enjoys either simultaneously (at the same time) or successively (one after the other) Usufruct over rights Usufruct over things Normal Usufruct – involves nonconsumable things were form and substance is preserved Abnormal (quasi-usufruct) – involves usufruct over consumable property or over non-consumable things which gradually deteriorate by use Pure usufruct No terms or condition Usufruct with a term or period Ex die (from a certain day) In diem (up to a certain day) Ex die in diem – from a certain day up to a certain day Usufruct with a condition
First, the agreement of the parties or the title giving the usufruct then second, in case of deficiency, the rules provided in the civil code shall govern. In case of conflict between the rights granted by a virtue of a will, and codal provisions, the former, unless repugnant to mandatory provisions of the Civil Code, should prevail (Fabie vs. Gutierrez David)
Article 566 – right to fruits, stranger to hidden treasures Article 566 of the New Civil Code provides that “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”
Hidden treasures are understood, for legal purposes as, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear Notes: Products that diminish the capital cannot be considered fruits unless the contrary intent between parties is clear 5 The usufructuary, not being the land owner, is not entitled as an owner but a finder ( 1/2 share) if he is a finder. (Paras quoting Manresa, Civil Code Volume II Property) Article 567 – Pending natural or industrial fruits Article 567 of the New Civil Code provides that “Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner. In the preceding case, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, 5 Ibid
4
from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary. The provisions of this article shall not prejudice the rights of third persons acquired either at the beginning or at the termination of the usufruct”
This article refers to pending natural or industrial fruits. It is worth taking note that there are no pending civil fruits for they accrue daily.
Article 569 – Rule regarding ownership and accrual of civil fruits “Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last”
Rules on pending natural or industrial fruits Fruits pending at the BEGINNING of the USUFRUCT As to the owner According to Article 567, fruits pending at the beginning of the usufruct belongs TO THE USUFRUCTUARY Reimbursement/Refund There is no necessity of refunding the owner for the owner gave the usufruct evidently without any thought of being reimbursed for the pending fruits or because the value of said fruit has already been taken in consideration in fixing the terms and conditions of the usufruct Regarding 3rd person No prejudice to the right of third persons (If the fruits had been planted by a possessor in good faith, the pending crop expenses and charges shall be pro-rated between possessor and the usufructuary (PARAS citing Manresa, Civil Code Volume II Property) Article 568 – Rule when usufructuary leases property to
According to article 572, the lease executed by the usufructuary should terminate at the end of the usufruct except in the case of rural lands, which in said case, if the usufruct ends earlier that the lease, the lease continues for the remainder of the agricultural year
Fruits pending at the TERMINATION of USUFRUCT According to Article 567, fruits pending at end of the usufruct belongs TO THE OWNER The owner must reimburse THE USUFRUCTUARY for ordinary cultivation expenses, for the seeds and other similar expenses from the proceeds of the fruits (PARAS, Civil Code Volume II Property)
Rights of third parties should not be prejudiced
Since civil fruits accrue daily, article 567 cannot be applied to civil fruits. Article 570 – “Whenever a usufruct is constituted on the right to receive a rent or periodical pension,
whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds of fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in an industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article” Notes: The things considered in article 570 are considered civil fruits and shall be deemed to accrue proportionately to the naked owner and usufructuary, for the time the usufruct lasts In Orozco and Alcantara vs Araneta, the Court has ruled that both stock dividends and cash dividends are civil fruits. The same rule should apply to profits of a partnership (Paras, Civil Code Volume II Property) Rent are considered as part of proceeds to property and therefore should belong to the usufructuary during the duration of the usufruct (Paras, Civil Code Volume II Property)
another (related article 572)
“If the usufructuary has leased the lands or tenements given in usufruct, and the
usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share that must be paid by the lessees ” This article refers to the rule when usufructuary leases property to another
Article 571 – “The usufructuary shall have the right to enjoy any increase which the thing in usufruct
may acquire through accession, on the servitudes established in its favour, and, in general, all the benefits i nherent within”
The usufruct, aside from the rights of the fruits also has the rights to the enjoyment of accessions servitudes and easements, and all benefits i nherent in the property because the usufruct is entitled to the entire jus fruendi and just utendi. (Paras, Civil Code Volume II Property) Article 572 – “The usufructuary may personally enjoy the thing in usufruct, lease it to another, or
alienate his right of usufruct, even by a gratuitous title; but all the contracts he enter into as such usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered subsisting during the agricultural year”
According to article 572 of the New Civil Code, the usufructuary has the right to personally enjoy the thing or lease it to another. The usufructuary may lease the property even without the owner’ s consent. Moreover, ordinarily the lease must not extend to a period longer than that of the usufruct, unless the owner consents. Thus, the lease ends at the time the usufruct ends, except in cases of rural leases) The usufructuary may alienate, plede or mortgae the usufructuary right (but he cannot pledge or mortgage the thing itself because he does not own such thing) (Paras, Civil Code Volume II Property)
Reference Cases:
Article 573 – Abnormal usufruct on things that deteriorate “Whenever the usufruct includes things which, without being consumed, gradually
deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their condition at that time; but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence”
This article deals with an abnormal or imperfect usufruct. An abnormal usufruct involves usufruct over consumable property or over non-consumable things which gradually deteriorate by use. While all things deteriorate, some things deteriorate faster than others. (such as clothes, furniture, carriages, vehicles, computers, copiers, or books) Effect of deterioration on the usufructuary’s liability
The thing deteriorated NORMAL USE
because
of
Effect: the usufructuary IS NOT RESPONSIBLE. He can return them IN THE CONDITION THEY MIGHT BE IN at the termination of the usufruct. There is NO NECESSITY FOR HIM TO MAKE REPAIRS to restore them to their former condition
Deteriorated BECAUSE OF AN EVENT THAT ENDAGERS THEIR PRESERVATION Deteriorated because of FRAUD
The usufructuary is REQUIRED TO MAKE NECESSARY OR ORDINARY REPAIRS even though there was no fault or negligence or fraud on his part The USUFRUCTUARY IS RESPONSIBLE (such liability may however be set off against improvements)
Article 574 – abnormal usufruct on consumable things (quasi usufruct) “Whenever the usufruct includes things which cannot be used without being consumed,
the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, it they were appraised when delivered. In case they were not appraised, he shall have the right to return the same quantity and quality, or pay their current price at the time the usufruct ceases” An abnormal usufruct involves usufruct over consumable property or over non-consumable things which gradually deteriorate by use. This is referred to as a “quasi-usufruct” because the form and substance is not really preserved.
them, the usufructuary may leave them dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land.”
ARTICLE 577 – Special usufruct over a woodland “The usufructuary of woodland may enjoy all the benefits which it may produce according to its
nature. If the woodland is a copse or consists of timber for building, the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the custom of the place, as to the manner, amount and season. In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land. In nurseries, the usufructuary may make necessary thinnings in order that the remaining trees may properly grow. With the exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down tres unless it be to restore or improve some things in the usufruct, and in such cse shall first inform the owner of the necessity of the work”
Rules on quasi usufruct – The usufructuary can use them but at the end of the usufructuary, he must pay the appraised value or, if there was no appraisal, return the same kind, quality or quantity or pay the price c urrent at the termination of the usufruct. Article 575 – Usufruct on fruit-bearing trees and shrubs “The usufructuary of fruit-bearing trees and shrubs may make use of the dead trunks and even of those cut off or uprooted by accident, under the obligation to replace them with new plants”
Note to self: refer to this special usufruct through its codal provision FYI: Other special usufructs ARTICLE 576 – Effect of a calamity on trees and shrubs “If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared
in such considerable number that it would not be possible or it will be too burdensome to replace
ARTICLE 578 – Usufruct of an action to recover through the courts “The usufructuary of an action to recover real property or a real right, or any movable
property, has the right to bring the action and to oblige the owner thereof to give him
the authority for this purpose and to furnish him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruit, the dominion remaining with the owner.”
To bring action, the usufructuary can demand from the owner (a) authority to bring the action and proofs needed for a recovery Institution of the Action (Paras, Civil Code Volume II Property citing Rules of Court, Article 578 and Pascual vs Angeles) The action may be instituted in the usufructuary’s name for being the owner of the
usufruct, he is properly deemed a real party in interest. If he purpose is the recovery of the property or right, he is still required to obtain the naked owner’s authority. If the
purpose is to object to or prevent disturbance over the property (once the property is given him), no special authority from the naked owner is needed. When judgement is awarded him and he gets the property: (a) its naked ownership belongs to the owner; (b) its usufruct belongs to him ARTICLE 579 – Usueful and Luxurious Improvements “The usufructuary may make on the property held in usufruct such useful
improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form o r substance; but he shall have no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property”
According to Article 579 of the New Civil Code, the usufructuary has the right to make useful improvements and luxurious improvements. However, he must not alter the form or substance of the property held in usufruct. He is also not entitled to a refund but he may either remove the improvement if there is no substantial damage to the property or set off he improvements against the damages for which he is liable in accordance to Article 580 of the New Civil Code.
While a possessor in good faith is entitled to a refund for useful improvements, a usufructuary is not. (Rivera vs. Trinidad)
Article 580 – Right to set-off improvements “The usufructuary may set off the impro vements he may have made on the property against any damage to the same”
According to Paras, there are two rules to follow in setting off the improvements to property against any damage: (1) If the damage exceeds the value of the improvements, the usufructuary is still liable for the difference (2) If the value of the improvements exceeds the damage, the difference does not goes to the usufructuary, but accrues instead in the absence of a contrary stiupalation in favour of the naked owner, otherwise, it is as if the usufructuary would be entitled to a partial refund in cash. Article 583- Obligation of the usufructuary regarding the inventory and security Before a set-off can be made, it is required that the damage must have been caused by the usufructuary and that the improvements have augmented the value of the property Article 581 – “The owner of the property the usufruct of which is held by another, may alienate it, but
he cannot alter its for or substance, or do anything thereon which may be prejudicial to the usufructuary”
The owner has jus disponendi and the title. He may therefor alienate the property, when the usufruct is being held by another, but may not alter its form or substance or do anything prejudicial to the usufructuary Article 582 – Usufrutuary of a Part of Common Property “The usufructuary of a part of a thing held in c ommon shall exercise all the rights
pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall be long to the usufructuary”
A co-owner may give the usufruct of his share to another, even without the consent of the others, unless personal considerations are present. The usufructuary then takes the owner’s place as to the administration and collection of fruits or interests. If there be a partitition, the usufructuary continues to have the usufruct of the part allotted to the co-owner concerned (Article 582).
“The usufructuary, before entering upon the enjoyment of the property is to obliged:
(1) To make, after notice to the owner or his legitimate representative an inventory of all the property, which shall contain an appraisal of the movables and description of the condition of the immovable; (2) To give security, binding himself to fulfil the obligations imposed upon him in accordance with this chapter”
Article 583 speaks of 2 obligations of a usufructuary. One is inventory and the other is security. They are not necessary however before the right to usufruct begins; they are merely necessary before physical possession and enjoyment of the property can be had.
Article 584 – usufruct of door or of parents “The provisions of No. 2 of the preceding article shall not apply to the donor who has
reserved the usufruct shall not apply to the donor who has reserved the usufruct of the property donated, or to the parents who are usufructuaries of their children’s property, except when the parents contract a second marriage”
Article 585 – Excused from inventory when no one will be injured thereby “The usufructuary, whatever m ay be the title of the usufruct, may be excused from the
obligation of making an inventory or of giving security, when no one will be injured thereby” The law says “may”, therefore the usufructuary is not always excused, the exemption
being dependent on the naked owner. (Paras, Civil Code Volume II Property, 16 th Edition) Article 586 – Effects of failure to give security “Should the usufructuary fail to give security in the cases in which he is bound to give
it, the owner may demand that the immovable be pl aced under administration, that the movables be sold, that the public bonds, instruments of creadit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institution, and that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe securities. The interest on the proceeds of the sale of the movables and that on public securities and bonds, and the proceeds of the property placed under administration, shall belong to the usufructuary.
The purpose of giving security before entering upon the property to be enjoyed in the usufructuary is to insure faithful compliance of duties of the usufructuary (PARAS, Civil Code Volume II – Property) Security is not required in the following circumstances: (1) when no one will be injured thereby (2) when there is waiver by the naked owner or there is a stipulation in the will or the contract (3) when the usufructuary is the donor of the property (4) when there is parental usufruct not as a usufructuary, but as a guardian or administrator and (5) when there is caucion juratoria
Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so doing, retain in his possession the property in usufruct as administrator, subject to the obligation to delivery to the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially allowed him for such administration”
Effects of Failure to Give Security On the Rights of the Naked Owner 1. He may delivery the property to the usufructuary. (but even if delivery is made, the naked owner may still demand security 2. Or he may choose retention of the
On the Rights of the Usufructuary 1. The usufructuary cannot possess the property unless he gives the security 2. The usufructuary cannot administer the property
3.
property as administrator (where the usufructuary gets net proceeds, minus administration expenses, the amount of which to be agreed upon by mutual agreement of fixed by the court) Or the naked owner may demand receivership or administration (by another) of the real property, sale of the movable, conversion or deposit of credit instrument, or investment of cash or profits
3.
4.
The usufructuary cannot collect credits that have matured, nor invest them (unless the court or the naked owner consents) But the usufructuary can alienate his right to the usufruct
Notes: The receiver or administrator is entitled to administration expense ARTICLE 587 – Caucion Juratoria Caucion juratoria is promise under oath. It is a sworn duty to take good care of the property and return the same at the end of the usufruct. It takes the place of the bond or security and is based on necessity and humanity (Sanchez Roman) The following are requisites before caucion juratoria is allowed: (1) proper court petition, (2) necessity for delivery of furniture, implements or house included in the usufruct (3) approval of the court (4) sworn promise ARTICLE 588 – retroactive effect of the security given
REPARIS (Article 593) and of any acts which may prove detrimental to ownership (Art. 610) The usufructuary answers for the damage caused by the fault or negligence of his alienee, agent, or lesee (Article 590) Article 590 – liability of usufructuary for acts of the substitute “A usufructuary who alienates or leases his right of usufruct shall answer for any
damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him”
The usufructuary is made liable for the acts of the substitute. Thus, while the substitute (fault, negligence, or even wilful deceit) answers to the usufructuary, the usufructuary answers to the naked owner. Even when there is a sub-usufructuary, it is still the usufructuary who answers to te naked owner for ordinary repairs, taxes on the fruits, etc. (Paras quoting Manresa, Civil Code Volume II Property, 16 th edition) Article 591 – Usufruct on Livestock The article applies only when the usufruct is on a flock and herd of l ivestock Obligation to replace 1. If some animals die from natural causes 2. Or if some animals are lost due to rapacity of beasts of prey (replacement is based on the young produced)
No obligation to replace 1. If there is a total loss of the animals because of some unexpected or natural loss 2. If there is a partial loss under the same conditions
“After the security has been given by the usufructuary, he shall have a right to all
proceeds and benefits from the day on which, in accordance with the title constituting the usufruct, he should have commenced to receive them”
PARAS Illustration – If the usufruct commences Jan 3 2003 but security is given Mar 3 2003, the usufructuary is entitled to all proceeds and benefits of the usufruct from Jan 3 2003) ARTICLE 589- duty of usufructuary to take care of property “The usufructuary shall take care of the things given in usufruct as a good father of a family”
In the exercise of prudent care, the usufructuary is required to make ORDINARY REPAIRS (Article 592) and to notify the owner of urgency of EXTRAORDINARY
For sterile animals, the rule of usufruct over fungible applies. Article 592 – Duty to make ordinary repairs “The usufructuary is obliged to make ordinary repairs needed by the thing given in
usufruct. By ordinary repairs are undersood such a are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fault to make them after demand by the owner, the latter may make them at the expense of the usufructuary.” Ordinary repairs – are those required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. (see article 592)
In order for the usufructuary to be responsible for ordinary repairs, the following: 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 or without the fault of the usufructuary
Article 593 – Duty of naked owner to make extraordinary repairs “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.”
Article 594 - Kinds of extraordinary repairs "If the owner should make the extraordinary repairs he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of repairs" Kind of extraordinary repair Caused by natural use but not needed for preservation
Caused by abnormal or exceptional circumstances and needed for preservation
Caused by abnormal or exceptional circumstances but are not needed for preservation
Responsibility Naked owner However, Justice Paras citing Manresa, points out that the owner is not required by law to make them, nor can be combelled by the usufructuary to make them (Paras, Civil Code Volume II Property, 16th Edition) Naked owner The owner cannot be compelled by the usufructuary to make them. However, the usufructuary is allowed to make them with the right to get the increase in value and the right of retention (until paid) at the termination of the usufruct, provided there was notification by the usufructuary and failure to repair by the naked owner(Paras, Civil Code Volume II Property, 16th Edition) Naked owner He however is required nor can be compelled to make them because there is no necessity for preservation
The naked owner can demand from the usufructuary legal interest on the amount spent for the extraordinary repairs for the duration of the usufruct because the usufructuary has really benefited. The usufructuary is allowed to make extraordinary repairs provided that there must be due notification to the naked owner of its urgency, that the naked owner failed to make them, and the repair is needed for preservation (Paras, Civil Code Volume II Property, 16th Edition) The usufructuary, who has made extraordinary repairs, has the right to get the increase in value or reimbursement of value and the right of retention until paid(Art 594 and Art 612) Article 595 - Constructions, Improvements, and Plantings by the Naked Owner "The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right to the usufructuary" If because of the said construction or plantings, the value of the usufruct increases, the usufructuary does not have to pay legal interest on the improvement because it was a voluntary act by the naked owner (Paras citing Manresa, Civil Code Volume II Property, 16th Edition) Quick notes (please fix this later on) Article 596 – Charges or taxes the usufructuary must pay Annual charges and taxes on fruits, annual taxes on land only when they can be considered as lien on fruits, ordinary repairs, necessary cultivation expenses Article 597 – Taxes which are imposed directly on capital Article 599 – rule on usufruct of a matured credit If the usufructuary has given security, collection and investment can be done without approval of the court or the naked owner. The credit collected belongs to the owner but the usufructuary gets its usufruct Article 600 – usufruct of mortgaged immovable
“The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the
“Easements established by law i n the interest of private persons or for private use shall
security of which the mortgage was constituted.
be governed by the provisions of the title WITHOUT PREJUDICE to the provisions of general or local laws and ordinances for the general welfare.
Should the immovable be attached or sold judicially for the payment of the debts, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof.”
Article 601 – Notification by the usufructary is required
These easements may be modified by agreement of the interested parties, whenever the law does not prohibit it or no in jury is suffered by a third person” EASEMENT RELATING TO WATERS
The usufructuary is required to notify the owner, when a third party comits acts prejudicial to the rights of ownership, if urgent repairs are needed, or if an inventory is to be made Article 602 – liability for expenses and cost is suits The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary
EASEMENT LEGAL EASEMENT General Provisions Art 634 – “Easements imposed by law have for their object either public use or the interest of private persons”
Difference Kinds of Legal Easements (WRP LDI EL)
Article 637 – Natural Drainage of Lands “Lower estates are obliged to receive the waters which are naturally and without the
intervention of man descend from higher estates, as well as the stones or earth which they carry with them
Water, Right of way, Party Wall, Light and View, Drainage, Intermediate Distance, Easement against Nuisance, Lateral and Adjacent Support
The owner of the lower estate cannot construct works which will impede this easement
Art 635 – How PUBLIC OR COMMUNAL easements are governed
Rights of the lower estate
“All matters concerning easements established for public or communal use shall be
neither can the owner of the higher estate make works which will increase the burden”
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governed by the special laws and regulations relating thereto, and, in the absence thereof, by the provisions of this title”
Art 636 – How legal easements for PRIVATE INTERESTS are governed
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Waters (which naturally and without the intervention of man descends from higher estates) Stones and earth (carried by the waters)
Servient Estate (That which is subject thereto) Duties
Allowed
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The owner cannot construct works that would impede the easement (Art. 637) But he may regulate or control the descent of water (Art. 113, Law of Waters). However, should he really cause an obstruction, the easement may be extinguished, by non-user and barred by prescription if the action to destroy is the constructed work is brought after more than 10 years
Dominant Estate (The immovable in which the easement is established) He cannot make works which will increase the burden (Art. 637)
Easement of SIRGA – easement of tow path For easements along riparian banks, indemnity shall be paid if the land is of private ownership. Article 639 – Easement concerning a dam “Whenever for the diversion or taking of water from a river or brook, or for the use of
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But he may construct works preventing erosion (Art 114, Law of Waters If the descending waters are the result of artificial development or proceed from industrial establishments recently set up, or are the overflow from irrigation dams, the owner of the lower estate shall be entitled to compensation for his loss or damage
any other continuous or discontinuous stream, it should be necessary to buidl a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after the payment of the proper indemnity”
The government should have first investigated and no one should take the law in his own hands Article 640 – Easements for Drawing Water or for Watering Animals “Compulsory easements for drawing water or for watering animals can be imposed only
for reasons of public use in favour of a town or village, after payment of proper indemnity”
Easements for drawing water or for watering animals can only be imposed for reasons of public use or in favour of a town or village and that proper indemnity must be paid Article 641 – easement for drawing water or for watering animals include an accessory easement of right of way “Easements for drawing water and for watering animals carry with them the obligation
Article 638 – Easement Along Riparian Banks “The banks of rivers and streams, even in case they are of private ownership, are
subject throughout their entire length and within a zone of three meters long their margins, to the easement of public use in the general interest of navigation, floatage, fishing and salvage. Estates adjoining the banks of navihble or floatable rivers are furthermore, subject to the easement of tow path for the e xclusive service of river navigation and floatage. If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid”
Allowed easements on river banks (NFFS) – Navigation, floatage, fishing, salvage
of the onwers of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service”
Easement for drawing water or for watering animals include an accessory easement of right of way (Art. 641) Requirement -
For Public Use In favour of a town or a village The right must be sought by the town or village, or its legal representation There must be payment for proper indemnity
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The right of way should have a maximum width of 10 meters, which cannot be altered by the owners of the servient estates although the direction of the path may indeed be changed, provided that the use of th easement is not prejudiced
Article 642 – Right to acquire the easement of aqueduct Article 643 – Four requisites for the easement of aqueduct Article 645 – Right of owner of servient estate to close or fence the aqueduct Article 646 – Easement of Acqueduct “For legal purposes, the easement of aqueduct shall be considered as continuous and
apparent, even though the flow of water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a sc hedule of alternate days or hours”
