propp 2021

Civil Law

by prescription because it is discontinuous or right of way. Dayum demanded that Demit
intermittent. (Ronquillo, et al. v. Roco, G.R. No. L- pay for the area encroached or demolish the
10619, February 28, 1958) wall fence and portion of the house which
have been encroaching. Demit contends that
Q: What kind of servitude in favor of the as owner of Lot A and B, he is equally
government is a private owner required to entitled to the road of right of way and
recognize? proposed to buy the portion. Is the
contention of Demit correct?
A: The only servitude which he is required to
recognize in favor of the government are: A: NO. As the owner of the servient estate,
Dayum retained ownership of the road right of
1. The easement of a public highway; way even assuming that said encumbrance was
2. Private way established by law; or for the benefit of Lots of Demit. The latter could
3. Any government canal or lateral that has not claim to own even a portion of the road
right of way because Art. 630 of the Civil Code
been pre-existing at the time of the expressly provides that "[t]he owner of the
registration of the land. servient estate retains ownership of the portion
on which the easement is established, and may
NOTE: If the easement is not pre-existing and is use the same in such manner as not to affect the
sought to be imposed only after the land has exercise of the easement." (Sps. Mercader v. Sps.
been registered under the Land Registration Bardilas, G.R. No. 163157, June 27, 2016)
Act, proper expropriation proceedings should
be had, and just compensation paid to the Q: What if the property is not the shortest
registered owner. (Eslaban v. Vda De Onorio, way but will cause the least damage to the
G.R. No. 146062, June 28, 2001) servient estate?

Requisites for easement on right of way A: The way which will cause the least damage
(POON-D) (1996, 2005, 2010 BAR) should be used even if it will not be the
shortest.
1. The easement must be established at the
point least Prejudicial to the servient estate The easement of right of way shall be
(NCC, Art. 649); established at the point least prejudicial to the
servient estate and where the distance from the
2. Claimant must be an Owner of enclosed dominant estate to a public highway is the
3. There must be no adequate Outlet to a shortest. In case of conflict, the criterion of least
prejudice prevails over the criterion of shortest
public highway [NCC, Art. 649, (1)]; distance.
4. The right of way must be absolutely
Mere Inconvenience is not a Justification for
Necessary not mere convenience; a Right of Way
5. The isolation must not be Due to the
Thus, it was held that where the petitioner
claimant’s own act (NCC, Art. 649); and could have access to Sucat Road (Paranaque)
6. There must be payment of proper through the Lombos Subdivision from which he
acquired his lot and not from Gatchalian Realty
Indemnity. Inc., he cannot claim any right of way from the
latter. (Ramos vs. Gatchalian Realty, Inc., G.R.
Least prejudicial to the servient estate 75905, 154 SCRA 703)
(1996, 2000, 2005, 2010 BAR)
Legal Easement, Not Dependent Upon
“Least prejudicial” in determining the right of Consent
way means it is the shortest way and the one
which will cause the least damage to the The existence of a legal easement does not
property to the servient estate in favor of the depend upon the consent of the servient owner
dominant estate. or owners

Q: Lots A and B are owned by Demit while
Lot C is owned by Dayum. Lot C has an
existing right of way. After inspection of the
area, it has been found out that a fence and
portion of the residential house owned by
Demit have encroached a part of Dayum’s

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Claimant must be an owner of enclosed road connecting with David’s subdivision. Is
immovable or with real right David entitled to an easement of right of way
through the subdivision of Nestor which he
Adequate outlet claims to be the most adequate and practical
outlet to the highway?
The convenience of the dominant estate has
never been the gauge for the grant of A: NO, David is not entitled to the right of way
compulsory right of way. To be sure, the true being claimed. The isolation of his subdivision
standard for the grant of the legal right is was due to his own act or omission because he
"adequacy." Hence, when there is already an did not develop an access road to the rice fields
existing adequate outlet from the dominant which he was supposed to purchase according
estate to a public highway, as in this case, even to his own representation when he applied for a
when the said outlet, for one reason or another, license to establish the subdivision. (Floro v.
be inconvenient, the need to open up another Llenado, G.R. No. 75723, June 2, 1995)
servitude is entirely unjustified. (Dichoso v.
Marcos, G.R. No. 180282, April 11, 2011; Alicia B. When Adequate Outlet to a Public Highway
Reyes v. Spouses Francisco S. Valentin and is Available Through Water
Anatalia Ramos, G.R. No. 194488, February 11,
2015, as penned by J. Leonen) If the outlet to a highway is through water, like
a river, lake or sea, and the same is not
Q: The coconut farm of Federico is dangerous to cross nor do they pose grave
surrounded by the lands of Romulo. inconvenience, the right of way should not be
Federico seeks a right of way through a granted.
portion of the land of Romulo to bring his
coconut products to the market. He has If the waterway is dangerous and to construct a
chosen a point where he will pass through a bridge over it is too expensive, it is as if there is
housing project of Romulo. The latter wants no available outlet to the highway. In which
him to pass another way which is 1km case, right of way is grantable.
longer. Who should prevail? (2000 BAR)
Determination of proper indemnity to the
A: ROMULO will prevail. Under Art. 650, the servient estate
easement of right of way shall be established at
the point least prejudicial to the servient estate If the passage is:
and where the distance from the dominant
estate to a public highway is the shortest. In 1. Continuous and permanent – The
case of conflict, the criterion of least prejudice indemnity consists of the value of the
prevails over the criterion of shortest distance. land occupied plus the amount of damages
Since the route chosen by Federico will caused to the servient estate; and
prejudice the housing project of Romulo,
Romulo has the right to demand that Federico 2. Temporary – Indemnity consists in the
pass another way even though it will be longer. payment of the damage caused.

Q: David owns a subdivision which does not Two instances where indemnity is not
have access to the highway. When he applied required
for a license to establish the subdivision, he
represented that he will purchase a rice 1. When a piece of land acquired by sale,
field located between his land and the exchange or partition is surrounded by
highway, and develop it into an access road. other estates of the vendor, exchanger or
However, when the license was granted, he co-owner. In such case he shall be obliged
did not buy the rice field, which remained to grant a right of way without indemnity
unutilized. Instead, he chose to connect his (NCC, Art. 652); or
subdivision with the neighboring
subdivision of Nestor, which has access to 2. When a piece of land acquired by donation
the highway. When Nestor and David failed surround the estate of the donor or grantor.
to arrive at an agreement as to In such case, the donee or grantee shall be
compensation, Nestor built a wall across the obliged to grant a right of way without
indemnity. (NCC, Art. 653 (2))

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NOTE: If it is the land donated that is NOTE: Said extinguishment is NOT automatic.
surrounded by the estate of the donor or There must be a demand for extinguishment
grantor, although the latter is obliged to grant a coupled with tender of indemnity by the
right of way, he can demand the required servient owner.
indemnity. (NCC, Art. 652)
Q: Emma bought a parcel of land from
Granting of Right of Way, Without Indemnity Equitable-PCI Bank, which acquired the
same from Felisa, the original owner.
When the vendor sells a parcel of land and this Thereafter, Emma discovered that Felisa
land is surrounded by other estates of said had granted a right of way over the land in
vendor and is without access to a public favor of the land of Georgina, which had no
highway, the vendor is obliged to grant a right outlet to a public highway, but the easement
of way without demanding an indemnity. was not annotated when the servient estate
was registered under the Torrens system.
This rule equally applies to an exchange of Emma then filed a complaint for
property, or partition of property in co- cancellation of the right of way, on the
ownership. The exchanger, or the co-owner ground that it had been extinguished by
shall have the same obligation as the vendor. such failure to annotate. How would you
decide the controversy? (2001 BAR)
Measurement for the easement of right of
way A: The complaint for cancellation of easement
of right of way must fail. The failure to annotate
The width of the easement shall be that which is the easement upon the title of the servient
sufficient for the needs of the dominant estate. estate is not among the grounds for
(NCC, Art. 651) extinguishing an easement under Art. 631 of the
NCC. Under Art. 617, easements are inseparable
Q: Can a dominant owner demand a from the estate to which they actively or
driveway for his automobile? passively belong. Once it attaches, it can only be
extinguished under Art. 631, and they exist
A: YES, due to necessity of motor vehicles in the even if they are not stated or annotated as an
present age. encumbrance on the Torrens title of the
servient estate.
Liability for repairs andtaxes
Temporary easement of right of way
1. As to repairs, the dominant owner is liable
for necessary repairs; If it be indispensable for the construction,
repair, improvement, alteration or
2. As to proportionate share of the taxes, it beautification of a building, to carry materials
shall be reimbursed by said owner to the through the estate of another, or to raise
proprietor of the servient estate. This thereon scaffolding or other objects necessary
applies only to permanent easements. (NCC, for the work, the owner of such estate shall be
Art. 654) obliged to permit the act, after receiving
payment of the proper indemnity for the
Special causes of extinguishment of right of damage caused him. (NCC, Art. 656)
way
Easement of right of way for the passage of
1. The opening of a public road giving access livestock or sevidumbres pecurias
to isolated estate; or
Governed by the ordinances and regulations
2. When the dominant estate is joined to relating thereto and in their absence, by the
another estate (such as when the dominant usages and customs of the place.
owner bought an adjacent estate) which is
abutting a public road, the access being Maximum width:
adequate and convenient. (NCC, Art. 655)
1. Animal path – 75 meters;
Both cases must substantially meet the needs of
the dominant estate. Otherwise, the easement
may not be extinguished.

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2. Animal trail – 37 meters and 50 whenever:
centimeters; and
1. There is a window or opening in the
3. Cattle – 10 meters (unless to the old Civil dividing wall of the buildings;
Code, vested rights has been acquired to a
greater width). (Paras, 2008; NCC, Art. 657) 2. Dividing wall is on one side straight and
plumb on all its facement, and on the other,
EASEMENTS OF PARTY WALL it has similar conditions on the upper part
but the lower part slants or projects
Easement of party wall outward;

The easement of party wall is also called 3. Entire wall is built within the boundaries of
servidumbre de medianera. one of the estates;

Party wall defined 4. The dividing walls bears the burden of the
binding beams, floors and roof frame of one
Is a wall erected on the line between the of the buildings, but not those of the others;
adjoining properties belonging to different
persons, for the use of both estates. (Pineda, 5. The dividing wall between courtyards,
2009) gardens and tenements is constructed in
such a way that the coping sheds the water
Governed by: upon only one of the estates;

1. The Civil Code; 6. The dividing wall, being built by masonry,
2. Local ordinances and customs; and had stepping stones, which at certain
3. The rules co-ownership. (NCC, 658) intervals project from the surface of one
side only, but not on the other; or
Q: Is the easement of party wall really an
easement or is it a case of co-ownership? 7. The lands enclosed by fences or live hedges
adjoin others which are not enclosed.
A: While it is called an easement by the law, the
law in some articles refers to it as a case of co- In all these cases, the ownership is deemed to
ownership or part-ownership. (NCC, Articles belong exclusively to the owner of the property
662, 665, 666) The truth is that, it is a which has in its favor the presumption based on
compulsory kind of co-ownership (FORGED any of these signs. (NCC, 660)
INDIVISION) where the shares of each owner
cannot be separated physically (otherwise the Right to Increase Height of Party Wall
wall would be destroyed), although said shares
may in a sense be materially pointed out. Thus, Every part-owner of a party has the right to
each co-owner owns the half nearest to him. increase the height of the party wall subject to
(Paras, 2008) the following conditions:

The existence of an easement of party wall is 1. The same shall be done at his expense;
presumed, unless there is a title, or exterior 2. He shall pay for any damage which may be
sign, or proof to the contrary:
caused by his work, even though such
1. In dividing walls of adjoining buildings up damage may be temporary; and
to the point of common elevation; 3. If the party wall cannot bear the increased
height, the owner desiring to raise it shall
2. In dividing walls of gardens or yards be obliged to reconstruct it at his own
situated in cities, towns, or in rural expense, if it be necessary to make it
communities; or thicker, he shall give space required from
his own land. (NCC, 664)
3. In fences, walls and live hedges dividing
rural lands. (NCC, Art. 659) Repairs and Maintenance of a Party Wall

It is understood that there is an exterior GR: The expenses for construction and repairs
sign, contrary to the easement of party wall of party walls shall be shouldered by all the
owners of the party wall.

XPN: If a part owner renounces his part
ownership on the party wall. The renunciation
must be absolute and total because the

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easement of party wall is indivisible. the window is on one’s own wall, still the
easement would be positive if the window is on
NOTE: The owner of the building or structure a balcony or projection extending over into the
supported by a party wall who desires to adjoining land. (Paras, 2008)
demolish such building or structure, may
RENOUNCE his part ownership of the wall. The Negative — If the window is thru one’s own
cost of all repairs and works necessary to wall, that is, thru a wall of the dominant estate.
prevent any damage which the demolition may (NCC, Art. 668, par. 2) Therefore, the time for
cause to the party wall on this occasion shall be the period of prescription should begin from
borne by him. the time of notarial prohibition upon the
adjoining owner. “Formal prohibition’’ or
EASEMENT OF LIGHT AND VIEW “formal act’’ (under the old Civil Code, Art. 538)
means not merely any writing, but one executed
No part-owner may, without the consent of the in due form and/or with solemnity — a public
others, open through the party wall any instrument. (Laureana A. Cid v. Irene P. Javier, et
window or aperture of any kind. (NCC, Art. 667) al., G.R. No. L-14116, June 30, 1960)

A window or opening in the dividing wall of XPN: Even if the window is on the wall of the
buildings is an exterior sign which rebuts the dominant estate, still easement of light and
presumption that the wall is a party wall; one view would be POSITIVE if the window is on the
part-owner may not, therefore, make any balcony or extension extending over the land of
window or opening of any kind thru a party the servient estate.
wall without the consent of others.
Thus, the period of prescription for the
The easement of LIGHT — “Jus luminum” The acquisition shall be counted from the time
opening is for the purpose of admitting light of:
and not for viewing.
1. Opening of the window, if through a party
(as in the case of small windows, not more than wall; or
30 cm. square, at the height of the ceiling joist,
the purpose of which is to admit light, and a 2. The formal prohibition upon the proprietor
little air, but not VIEW). (Paras. 2008) of the adjoining land, if window is through a
wall on the dominantestate.
The easement of VIEW — “Servidumbre
prospectus” The opening is for the purpose of Openings at height of ceiling joints to admit
viewing. (as in the case of full or regular light (NCC, Art. 669)
windows overlooking the adjoining estate)
(Incidentally, although the principal purpose When the distances in Art. 670 are not
here is VIEW, the easement of light is necessarily observed, the owner of a wall which is not a
included, as well as the easement of altius non party wall can make an opening for the purpose
tollendi [not to build higher for the purpose of of admitting light and air, but NOT for view.
obstruction. (Paras, 2008)
Restrictions for making an opening for light
When easement of light and view is positive and air
and when negative
1. The size must not exceed 30-centimeter
Positive — If the window is thru a party wall. square;
(NCC, Art. 668, par. 1) Therefore, the period of
prescription commences from the time the 2. The opening must be at the height of the
window is opened. ceiling joists or immediately under the
ceiling;
NOTE: The mere opening of the window does
not create the easement; it is only when after a 3. There must be an iron grating imbedded in
sufficient lapse of time the window still remains the wall; and
open, that the easement of light and view is
created. (NCC, Art. 668, par. 1) Moreover, even if 4. There must be a wire screen.

If the wall becomes a party wall – A part owner
can order the closure of the opening because no
part owner may make an opening through a

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Property

party wall without the consent of the others; it measured in cases of direct views from the
can also obstruct the opening unless an outer line of the wall when the openings do not
easement. project, from the outer line of the latter when
they do, and in cases of oblique view from the
The openings allowed by Art. 669 are for the dividing line between the two properties. (NCC,
purpose of admitting light; hence they can be Art. 671)
made only in the walls of buildings.
Where buildings are separated by a public
NOTE: Art. 669 refers to restricted windows. way or alley (NCC, Art. 672)

Direct and oblique views (NCC, Articles 670- The distance provided in Art. 670 is not
671) compulsory where there is a public way or alley
provided that it is not less than three meters
Articles 670 and 671 deal with regular, full wide, the minimum width is necessary for the
windows. sake of privacy and safety.

Direct view - It is that which is obtained from a NOTE: The width of the alley is subject to
wall parallel to the boundary line, such that special regulations and ordinances.
from the opening in such wall it is possible to
see the adjoining tenement without the A private alley opened to the use of the general
necessity of putting out or turning one's head public falls within the provision of Art. 672.
side.
Where easement of direct view had been
NOTE: When windows are opened at a distance acquired (NCC, Art. 673)
less than that prescribed by Art. 670 from the
boundary lines, they constitute unlawful Whenever the easement of direct view has been
openings, however, it is not necessary always acquired by any such title, there is created a
that the wall sustaining the opening and the true easement. The owner of the servient estate
dividing line be exactly and geometrically cannot build thereon at less than a distance of
parallel. three meters from the boundary line.

Oblique view - It is obtained from a wall at an NOTE: The title used in Art. 673 refers to any
angle with the boundary line; in order to see the modes of acquiring easements:
adjoining tenement, it is necessary to turn one's
head to the left or to the right. 1. Contract;
2. Will;
Restrictions as to easement of views 3. Donation; or
4. Prescription.
1. Direct Views: The distance of two (2)
meters between the wall and the boundary The distance may be increased or decreased by
must be observed; and stipulation of the parties provided that in case
of decrease, the minimum distance of two
2. Oblique Views: (Walls perpendicular or at meters or sixty centimeters prescribed in Art.
an angle to the boundary line) must not be 670 must be observed, otherwise it is void. The
60 cm to the nearest edge of the window. said distances involve considerations of public
(NCC, Art. 670) policy and the general welfare; hence, they
should not be rendered ineffective by
Any stipulation to the contrary is void. (NCC, stipulation.
Art. 673) And the owner who opened them may
be ordered by the court to close them. EASEMENT OF DRAINAGE OF BUILDINGS

Prescription may still be acquired as a negative The owner of a building shall be obliged to
easement after ten years from the time of construct its roof or covering in such manner
notarial prohibition. that the rain water shall fall on his own land or
on a street or public place, and not on the land
The distance referred to in Art. 670 shall be of his neighbor, even though the adjacent land

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may belong to two or more persons, one of No person shall build any aqueduct, well, sewer,
whom is the owner of the roof. Even if it should furnace, forge, chimney, stable, depository of
fall on his own land, the owner shall be obliged corrosive substances, machinery, or factory
to collect the water in such a way as not to which by reason of its nature or products is
cause damage to the adjacent land or tenement. dangerous or noxious, without observing the
(NCC, Art. 674) distances prescribed by the regulations and
customs of the place, and without making the
NOTE: Art. 674 does not establish servitude but necessary protective works, subject, in regard
merely regulates the use of one's property. to the manner thereof, to the conditions
prescribed by such regulations. These
Easement to receive falling rain waters prohibitions cannot be altered or renounced by
(NCC, Art. 675) stipulation on the part of the adjoining
proprietors. (NCC, Art. 678)
The owner of a tenement or a piece of land,
subject to the easement of receiving water NOTE: The owner must take necessary
falling from roofs, may build in such manner as protective works or other neighboring estates.
to receive the water upon his own roof or give it
another outlet in accordance with local Planting of trees
ordinances or customs, and in such a way as not
to cause any nuisance or damage whatever to Art. 679 establishes a negative easement. It
the dominant estate. provides the minimum distances of trees and
shrubs from the boundary line. They shall be
Easement giving outlet to rainwater where regulated by the local ordinances and in the
house surrounded by other houses absence thereof, by the customs of the place,
Requisites: and in default thereof, by Art. 679.

1. There must be no adequate outlet to the Distance in Planting of Trees under Article
rainwater because the yard or court of a 679 of the New Civil Code.
house is surrounded by other houses;
1. The distance authorized by local ordinances
2. The outlet to the water must be at the point or customs of the place, if any; or
where egress is easiest, and establishing a
conduit for drainage; and 2. If there are no ordinance or custom:

3. There must be payment of proper a. At least two (2) meters from the
indemnity. (NCC, Art. 676) dividing line of the estate in case of tall
trees; and
Ownership of Rainwater
b. At a distance of at least 50 centimeters
Pursuant to the provision of the Water Code of in case of shrubs or small trees.
the Philippines, the, rain waters falling on
private lands shall belong to the State. Remedy In Case Of Violation

INTERMEDIATE DISTANCES AND WORKS In case of violation of the law, ordinances, or
FOR CERTAIN CONSTRUCTIONS AND customs, and the neighboring landowners can
PLANTINGS demand the removal of the trees illegally
planted. This remedy also applies to trees
No constructions can be built, or plantings made which have grown spontaneously, that is,
near fortified places or fortresses without without any thought of planting them in the
compliance with the conditions required in tenement of the servient owner.
special laws, ordinances, and regulations
relating thereto. (NCC, Art. 677) Intrusions of branches or roots into
neighboring estate
NOTE: Art. 677 establishes an easement in
favor of the State. The general prohibition is Q: Can the adjoining estate cut the roots and
dictated by the demands of national security. the branches without the consent of the
owner of the tree?
Construction of aqueduct, well, sewer, etc.

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Property

A: Right to cut roots can be exercised without General Rule; Exception
notice to the owner of the trees. BUT as to the
branches, it is necessary to ask that they be cut, The owner of a parcel of land is the owner of its
and if the owner of the tree does not do so surface and everything under it. As such, he has
voluntarily, the court may authorize the the right to construct any works thereon or
neighboring owner to cut them. make any plantations and excavations which he
may deem proper. (Art. 437)
Q: Does this right prescribe?
As limitation, he cannot do so to the detriment
A: The right to cut does not prescribe so long as of servitudes. Further, he must observe the
the owner tolerates the branches and roots requirements of special laws and ordinances.
invading his tenement. BUT the moment the
owner of the tenement demanded that the Lateral Support
branches be cut off and the owner of the tree
refuses to do so, the prescription starts to run. This is the support on the vertical side of a land,
the removal of which may cause the land to
Fruits naturally falling upon adjacent land crumble or slide.

Q: Who owns the fruits which fall from the Subjacent Support
adjacent land?
This is the horizontal support underneath a
A: Such fruits belong to the owner of the land or building the removal of which may
adjacent land to compensate him for the cause the sinking or crumbling of the land or
inconvenience causes by the branches of trees building.
extending over his land. Note however that for
the adjacent owner to be entitled to the fruits ‘ Lateral’ Distinguished from ‘Subjacent’
they must not only fall upon his land but the
falling must occur naturally. The support is lateral when both the land being
supported and the supporting land are on the
NOTE: If the fruits fall on public property, the SAME PLANE; when the supported land is
owner of the tree retains ownership. ABOVE the supporting land, the support is
subjacent. (Paras, 2008)
EASEMENT AGAINST NUISANCE
Remedies for violation of Art. 684
Easement against nuisance is a negative
easement because the proprietor or possessor 1. Claim for damages for injuries sustained; or
is prohibited to do something which he could 2. Injunction.
lawfully do were it not for the existence of the
easement. However, a nuisance involves any act NOTE: Any stipulation or testamentary
or omission which is unlawful. provision allowing excavations that cause
danger to an adjacent land or building shall be
NOTE: The easement against nuisance is not an void. (NCC, Art. 685)
easement at all but a restriction upon the
ownership and not every limitation on the right Notice to owners of adjacent lands
of ownership is an easement.
Any proprietor intending to make any
LATERAL AND SUBJACENT SUPPORT excavation contemplated in Articles 684-686
shall notify all owners of adjacent lands.
Proprietor prohibited from making
dangerous excavations The notice is mandatory except where there is
actual knowledge of the proposed excavation.
No proprietor shall make such excavations
upon his land as to deprive any adjacent land or NOTE: The legal easement of lateral and
building of sufficient lateral or subjacent subjacent support are NOT only applicable for
support. (NCC, Art. 684) buildings already constructed at the time of the
excavations but also to future buildings that

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may be constructed on the adjoining lands. Art. 690)

VOLUNTARY EASEMENT Expenses for work required for use and
preservation of the easement.
An easement is voluntary when it is established
by the will of the owners. If the owner of the servient estate has bound
himself to pay for the cost of the work needed
Persons who may constitute voluntary for the use and preservation of the easement,
easement and wants to free himself from such obligations,
he may simply renounce or abandon his
Voluntary easements may be constituted by the property in favor of the owner of the dominant
owner possessing capacity to encumber state.
property. If there are various owners, all must
consent; but consent once given is not Q: Mr. Bong owns several properties in Pasig
revocable. City. He decided to build a condominium
named Flores de Manila in one of his lots. To
NOTE: Third persons are not bound by a fund the project, he obtained a loan from the
voluntary easement unless the same is duly National Bank (NB) secured by a real estate
recorded with the proper authorities. mortgage over the adjoining property which
he also owned.
Q: For whose favor are voluntary easements
established? During construction, he built three pumps
on the mortgaged property to supply water
A: to the condominium. After one year, the
1. Predial servitudes: project was completed and the
condominium was turned over to the
a. For the owner of the dominant estate; buyers. However, Mr. Bong failed to pay his
and loan obligation to NB. Thus, NB foreclosed
the mortgaged property where the pumps
b. For any other person having any were installed. During the sale on public
juridical relation with the dominant auction of the mortgaged property, Mr.
estate, if the owner ratifies it. Simon won in the bidding. When Mr. Simon
attempted to take possession of the
2. Personal servitudes: property, the condominium owners, who in
a. For anyone capacitated to accept. the meantime constituted themselves into
Flores de Manila Inc. (FMI), claimed that
Q: How are voluntary easements created and they have earlier filed a case for the
what are the governing rules for such? declaration of the existence of an easement
before the Regional Trial Court (RTC) of
A: Pasig City and prayed that the easement be
1. If created by title (contract, will, etc.), the annotated in the title of the property
foreclosed by NB. FMI further claimed that
title governs; and when Mr. Bong installed the pumps in his
2. If acquired by prescription, it is governed adjoining property, a voluntary easement
was constituted in favor of FMI. Will the
by the manner or form of possession. action prosper? (2014 BAR)

NOTE: In both cases, the Civil Code will only A: NO, the action will not prosper. The essence
apply suppletorily. of a mortgage is that it immediately subjects the
property upon which it is imposed, and
When consent is necessary whoever the possessor may be, to the
fulfillment of the obligation for whose security
The owner of a property in usufruct may create it was constituted. There was no voluntary
easements thereon without the consent of the easement in this case because at the time the
usufructuary provided the rights of the latter water pumps were constructed, the subject lot
are not impaired. (NCC, Art. 689) where the water pumps were constructed and

NOTE: Consent of both the naked owner and
the beneficial owner is necessary for the
creation of perpetual voluntary easement. (NCC,

279

Property

the condominium belong to the same person. Condition Act There is a
No one can have an easement over his own of the act complained of continuing
property. Even of the assumption that an Abatement is already done harm being
easement was created in favor of FMI that alone which caused suffered by
will not defeat the right of the mortgagee to the injury to the aggrieved
enforce the security if the debtor defaults. plaintiff party by the
(Bogo- Medellin v. CA, G.R. No. 124699, July 31, maintenance
Abatement is of the act or
2003) not available thing which
as a remedy. constitutes
NUISANCE The remedy is the nuisance.
action for
A nuisance is any act, omission, establishment, damages. Abatement
business, condition of property, or anything without
else which: judicial
proceedings is
1. Injures or endangers the health or safety of allowed to
others; suppress the
nuisance.
2. Annoys or offends the senses;
3. Shocks, defies or disregards decency or NOTE: Nuisance is wrongful in itself due to the
injury caused, regardless of the presence or
morality; absence of care, while negligence creates
4. Obstructs or interferes with the free liability due to want of proper care resulting to
another’s injury. (Pineda, 2009)
passage of any public highway or street, or
any body of water; or Kinds of Nuisance

5. Hinders or impairs the use of property.
(NCC, Art. 694) (2005, 2006 BBAR)

Nuisance vs. Trespass 1. As to the number of persons affected:
(2005 BAR)
NUISANCE TRESPASS
Use of one’s own property a. Public (or common) – One that affects a
which causes injury to Direct community or neighborhood or any
another the property, right infringement of considerable number of persons
or interest of another, and another’s right although the extent of the annoyance,
generally results from the or property. danger or damage upon individuals
commission of an act may be unequal (Suarez, 2011); and
beyond the limits of the Injury is direct
property affected. and immediate. b. Private – one which affects an
individual or few persons only.
Injury is consequential.

NOTE: An encroachment upon the space of 2. Other classification:
another’s land, but not upon the land itself is
considered a nuisance, and not trespass. a. Nuisance per se – That kind of nuisance
which is always a nuisance. By its
Nuisance vs. Negligence nature, it is always a nuisance all the
time under any circumstances
Basis NEGLIGENCE NUISANCE regardless of location or surroundings
It is an act, occupation, or structure
Liability is Liability which unquestionably is a nuisance at
based on lack attaches all times and under any circumstances,
of proper care regardless of regardless of its location or
or diligence. the degree of surroundings
care or skill
exercised to b. Nuisance per accidens – That kind of
avoid the nuisance by reason of location,
injury surrounding or in a manner it is

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conducted or managed It is an act, July 14, 2006)

occupation, or structure that may Q: Boracay West Cove, applied for a zoning
compliance covering the construction of a
become a nuisance by reason of three-storey hotel over a parcel of land in
circumstances, location, or Malay. The Zoning Administrator denied the
application on the ground that the proposed
surroundings; construction site was within the “no build
zone”. The Office of the Mayor issued EO 10,
c. Temporary – That kind which if ordering the closure and demolition of
properly attended does not constitute Boracay West Cove’s hotel. Boracay West
a nuisance; Cove countered that the hotel cannot
summarily be abated because it is not a
d. Permanent – That kind which by nuisance per se. Is the hotel classified as a
nature of structure creates a nuisance per se?
permanent inconvenience;
A: NO. The litmus test in determining if it’s a
e. Continuing – That kind which by its nuisance is the property’s nature and
nature will continue to exist conditions. The hotel cannot be considered as a
indefinitely unless abated; nuisance per se since this type of nuisance is
generally defined as an act, occupation, or
f. Intermittent – That kind which recurs structure, which is a nuisance at all times and
off and on and may be discontinued under any circumstances, regardless of location
anytime; or surrounding. Here, it is merely the hotel’s
particular incident––its location––and not its
g. Attractive Nuisance – One who inherent qualities that rendered it a nuisance.
maintains on his premises Otherwise stated, had it not been constructed in
dangerous instrumentalities or the no build zone, Boracay West Cove could
appliances of a character likely to have secured the necessary permits without
attract children in play, and who fails issue. (Aquino v. Mun.of Malay Aklan, G.R. No.
to exercise ordinary care to prevent 211356, September 29, 2014)
children from playing therewith or
resorting thereto, is liable to a child of ATTRACTIVE NUISANCE
tender years who is injured thereby,
even if the child is technically a One who maintains on his premises dangerous
trespasser in the premises. instrumentalities or appliances of a character
likely to attract children in play, and who fails
Nuisance per se vs. Nuisance per accidens to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is
PER SE PER ACCIDENS liable to a child of tender years who is injured
As a matter of thereby, even if the child is technically a
law. As a matter of fact. trespasser in the premises. (Jarco Marketing
Corp. v. CA, G.R. No. 129792, December 21, 1999)
Need only be Depends upon its location
proved in any and surroundings, the Basis for liability
locality. manner of its conduct or
other circumstances. The attractiveness is an invitation to children.
May be May be abated only with Safeguards to prevent danger must therefore be
summarily reasonable notice to the set up.
abated under person alleged to be
the law of maintaining or doing such Elements of attractive nuisance
necessity. nuisance.
1. It must be attractive; and
NOTE: The abatement of a nuisance without 2. Dangerous to children of tender years.
judicial proceedings is possible only if it is a
nuisance per se. A gas station is not a nuisance Q: Is a swimming pool an attractive
per se or one affecting the immediate safety of
persons or property. Hence, it cannot be closed
down or transferred summarily to another
location. (Parayno v. Jovellanos, G.R. No. 148408,

281

Property

nuisance? Every successive owner or possessor of
property who fails or refuses to abate a
A: nuisance in that property started by a former
GR: A swimming pool or water tank is not an owner or possessor is liable therefor in the
attractive nuisance, for while it is attractive, it is same manner as the one who created it. (NCC,
merely an imitation of the work of nature. Art. 696)
Hence, if small children are drowned in an
attractive water tank of another, the owner is Extra-judicial abatement (2002 BAR)
not liable even if there be no guards in the
premises. (Hidalgo Enterprises v. Balandan, et. Requisites of extra-judicial abatement (BAR
al, G.R. No. L-3422 June 13, 1952) VID)

XPN: Swimming pool with dangerous slide 1. The nuisance must be especially Injurious
characteristics to the person affected;

NOTE: The doctrine of attractive nuisance does 2. No Breach of peace or unnecessary injury
not generally apply to bodies of water, artificial must be committed;
as well as natural in the absence of some
unusual condition or artificial feature other 3. Demand must first be made upon the
than the mere water and its location. owner or possessor of the property to abate
the nuisance;
PUBLIC NUISANCE AND PRIVATE NUISANCE
4. Demand is Rejected;
Remedies against public nuisances 5. Abatement is Approved by the district

1. Prosecution under the RPC or any local health officer and executed with the
ordinance; assistance of the local police; and
6. Value of the destruction does not exceed
2. Civil action; or P3,000
3. Abatement, summarily and without judicial
NOTE: Abatement is the exercise of police
proceeding. (NCC, Art. 699) power which includes the right to destroy
property regarded as a public health or safety,
NOTE: A private person may file for a civil and there is no obligation to give compensation.
action against a public nuisance if the latter is
injurious to him. Thus, insofar as he is An extra-judicial abatement can only be applied
concerned, the nuisance becomes a private for if what is abated is a nuisance per se and not
nuisance which affects him in a special way, nuisance per accidens.
different from that sustained by the public in
general. Liability for damages in case of extrajudicial
abatement of nuisance
Remedies against private nuisances
The private person or a public official
1. Civil action; or extrajudicially abating a nuisance is liable for
2. Abatement, summarily and without judicial damages to the owner othe thing abated, if he
causes unnecessary injury or if an alleged
proceedings. (NCC, Art. 705) nuisance is later declared by courts to be not a
real nuisance. (NCC, Art. 707)
NOTE: Any person injured by a private
nuisance may abate it by removing, or if NOTE: The right to question the existence of a
necessary, by destroying the thing which nuisance does not prescribe; it is
constitutes the nuisance, without committing a imprescriptible.
breach of the peace or doing unnecessary
injury. Q: Respondent Ernesto Lardizabal (Ernesto)
filed a complaint for demolition, before the
However, it is indispensable that the procedure City Engineer's Office of Baguio City (City
for extra-judicial abatement of a public Engineer's Office), questioning the ongoing
nuisance by a private person be followed. (NCC, construction of a residential structure and
Art. 706) garage extension by petitioners on a parcel
of land. Upon investigation, the City

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Engineer's Office found out that the 1. Occupation;
construction had no building permit. 2. Law;
Consequently, the City Mayor issued 3. Donation;
Demolition Order No. 5. Aggrieved, 4. Tradition;
petitioners moved for a reconsideration of 5. Intellectual creation;
DO No. 05, but was denied by the City Mayor. 6. Prescription; or
Thus, they were prompted to file a 7. Succession;
complaint for injunction and prohibition
with the RTC. Should DO No. 5 be enjoined? NOTE: Registration of a property does is not a
mode of acquiring ownership. It merely
A: YES. The following shall be subject for confirms the existence of one’s ownership over
summary Eviction: (1) New squatter families a property with notice to the whole world.
whose structures were built after the affectivity (Bautista v Dy Bun Chin, 49 O.G. 179)
of RA 7279; and (2) Squatter families identified
by the LGU in cooperation with the Presidential Classification of modes of acquiring
Commission of the Urban Poor (PCUP), ownership
Philippine National Police (PNP) and accredited
Urban Poor Organization (UPO) as professional 1. Original – Those which do not arise or
squatters or members of squatting syndicates depend upon any pre-existing right or title
as defined in the Act. In this case, petitioners of another person:
cannot be considered as new squatters, since,
although their structures were built after March a. Occupation (NCC, Art. 713);
28, 1992, they or their predecessors-in-interest b. Intellectual Creation (NCC, Art. 721);
had occupied, and were claimants of the subject
property long before the said date. Neither have and
they been identified by the LGU as professional c. Acquisitive Prescription. (NCC, Art.
squatters nor members of a squatting syndicate.
Thus, since petitioners do not fall under the 1106)
coverage of the said IRR, the issuance of DO No.
05 had no legal basis at the onset. 2. Derivative – Are those which arise or
depend upon a pre-existing or preceding
MODES OF ACQUIRING OWNERSHIP right or title of another person:

Mode v. Title a. Law; e.g. hidden treasure (NCC, Art.
438), improvements on the land of
MODE TITLE another (NCC, Art. 445), alluvium (NCC,
Art. 457), abandoned riverbeds (NCC,
Directly and Serves merely to give Art. 461), falling fruits into the
tenement of another (NCC, Art. 681)
immediately produces the occasion for its
a real right. acquisition or b. Donation (Art. 725)
c. Succession mortis causa (NCC, Art.
existence.
774); and
Cause Means d. “Tradition (delivery) as a consequence

Proximate cause Remote cause of certain contracts” like sale, agency,
partnership, mutuum, assignment
Essence of the right Means whereby that barter. Pure tradition does not transfer
which is to be created ownership such as in deposit or
or transmitted. essence is transmitted. commodatum. (Pineda, 2009)

Mode – it is a way or process of acquiring or TRADITION
transferring ownership. The process may either
be original or derivative. It is defined as legal delivery. It has a cause
which is the title by reason of which the
Title – is a jural act or deed which is not delivery was made. It always produces an effect
sufficient by itself to transfer ownership. – the acquisition of ownership by the person to
whom the delivery is made.
Modes of acquiring ownership (OLD TIPS)
(2007 BAR) Classes of Tradition

283

Property

1. Real Or Actual Tradition – This succession where inheritance is
contemplates the actual delivery of the transferred upon death of the
thing from the hand of the grantor to the decedent.
hand of the grantee if the thing is a
personality. If it is a realty, it is manifested g. Quasi-Tradition – It consists in the
by certain possessory acts executed by the delivery of incorporeal property like
grantee with the consent of the grantor rights and credits done through the (a)
such as by taking over the property; by
entering it and occupying it. placing titles of ownership in the
hands of the grantee or his
2. Constructive Tradition – The delivery of the representative; or (b) by allowing the
thing is not actual but representative or grantee to make use of the rights with
symbolical in essence. But must be the the consent of the grantor
intention to deliver the ownership.
OCCUPATION
a. Traditio symbolica – it consists in the
delivery of certain symbols or things Occupation is the acquisition of ownership by
representing the thing being delivered seizing corporeal thing that have no owner,
such as keys or titles made with the intention of acquiring them, and
accomplished according to legal rules. (Paras,
b. Traditio Instrumental – It consists in 2008) (1997, 2007 BAR)
the delivery of the instrument of
conveyance to the grantee by the Requisites of occupation
grantor
1. There must be Seizure of a thing;
c. Traditio Longa Manu – It consists in 2. Which must be a Corporeal personal
the pointing of the thing (movable
property) within sight, by the grantor property;
to the grantee but which at the time of 3. Which must be Susceptible of appropriation
the transaction, the thing could not be
placed yet in the possession of the by nature;
grantee. 4. The thing must be Without an owner;and
5. There must be an Intention to acquire
d. Traditio Brevi Manu – It consists in the
grantee’s continuation of his ownership.
possession over the thing delivered
but now under a title of ownership. Occupation vs. Possession
This is exemplified in the case of a
lessee who had purchased the BASIS OCCUPATION POSSESSION
property leased to him and thereafter Merely raises
continues to possess it as the owner As regards Mode of the
thereof acquisition acquiring presumption
of ownership ownership. of ownership
e. Traditio Constitutum Possessorium – It when
consists in the owner’s continuous As to Involves only exercised in
possession of the property he had sold property corporeal the concept of
to another person, and his present involved personal owner.
possession thereof is no longer that of As regards property.
an owner but under another capacity ownership of Requires that Any kind of
like a lessee, pledgee, depository, etc. the thing by the object be property.
It is the opposite of Tradicion Brevi another without an
Manu. As regards owner. The property
the intent to There must be may be owned
f. Tradicion By Operation of Law – It acquire an intent to by somebody.
consists in the delivery of the thing by acquire
operation of law such as the intestate ownership. May be had in
the concept of
a mere holder.

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May not take May exist escaped become res nullius again.
place without without
As regards some form of occupation. Straying DomesticatedAnimals
possession possession.
Generally, Domesticated animals, if they got strayed and
As to period Short duration. longer. were caught by another, the owner may still
As to leading claim them from the captor within 20 days
Cannot lead to May lead to reckoned from the date of occupation by the
to another another mode another mode- latter. Failure to do so, they shall belong to the
mode of of acquisition. prescription. captor who kept them.

acquisition

Things susceptible of occupation Domesticated as distinguish from Domestic
Animals

1. Things that are without an owner – Res Domesticated animals are wild animals but
nullius; abandoned; after capture had been tamed and become
accustomed and friendly to people. On the other
NOTE: Stolen property cannot be subject of hand, Domestic Animals or tame animals are
occupation. those born, bred and raised under the care of
men.
2. Animals that are the object of hunting and
fishing (NCC, Art. 713); Q: When can land be the object of
occupation?
3. Hidden treasures – Only if the there is no
known owner thereof. This is possible only A: It depends.
if the treasure is found in places or things
without owners (NCC, Art 718); 1. If without an owner, it pertains to the State
(Regalian Doctrine).
4. Abandoned movables – A thing is
abandoned when: 2. If abandoned and the property is private, it
can be the object of occupation.
a. The expectation to recover is gone
(spes recuperandi); and 3. And if the land does not belong to anyone, it
is presumed to be public.
b. The intent to return or have it
returned is given up (spes rivertandi). Ownership of land cannot be acquired by
occupation
5. Swarm of bees that has escaped from its
owner, under certain conditions (NCC, Art. When the land is without owner, it pertains to
716); the State. The State need not acquire abandoned
lands by occupation because once the requisites
6. Domesticated animals that have escaped
from their owners, under certain conditions of abandonment had been fulfilled;
(NCC, Art. 716); automatically, the reversion operates. (Pineda,
2009)

7. Transfer of pigeons to another breeding Abandoned land (one with an owner before)
place without fraud or artifice (NCC, Art. becomes patrimonial land of the State
717); and susceptible of acquisition thru acquisitive
prescription. (Paras, 2008)
8. Transfer of fish to another breeding place
without fraud or artifice. (NCC, Art. 717) Prescription vs. Occupation

Acquisition of ownership over a wild animal PRESCRIPTION OCCUPATION
by occupation
Derivative mode – Original mode –
Wild animals are considered res nullius when somebody else was the no previous
not yet captured. After its capture, animals that owner. owner.

285

Property

Longer period of Shorter period. NOTE: Future property means anything which
possession is required. the donor cannot dispose of at the time of the
donation. (NCC, Art. 751) (2009 BAR)
DONATION
XPN: In donation propter nuptias, however, the
Donation is an act of pure liberality whereby a Family Code allows a donation of future
person disposes gratuitously of a thing or right property between future spouses.
in favor of another who accepts it. (NCC, Art.
725) Donation of future inheritance or the
inchoate right to inherit
Requisites of donation (ACID)
Future inheritance or the inchoate right to
1. Donor must have Capacity to make the inherit cannot be donated because it is future
donation; property.

2. He must have donative Intent (animus Q: May a property, the acquisition of which
donandi); is subject to suspensive condition, be
donated?
3. There must be Delivery in certain cases; and
4. Donee must Accept or consent to the A: YES, because once the condition is fulfilled, it
retroacts to the day the contract is constituted.
donation during the lifetime of the donor [NCC, Art. 1187(1)]
and of the donee in case of donation inter
vivos (NCC, Art. 746); whereas in case of Donation of ownership and usufruct
donation mortis causa, acceptance is made
after donor’s death because they partake of Ownership and usufruct of a property may be
a will. (NCC, Art.728) donated to different persons separately.
However, all the donees are required to be
Essential features or elements of a true living at the time of donation. (NCC, Art. 756)
donation
Limitation on the amount that can be
1. Alienation of property by the donor during donated
his lifetime, which is accepted;
1. If the donor has forced heirs, he cannot give
2. Irrevocability by the donor of thedonation; or receive by donation more than what he
3. Animus Donandi (donative intent); and can give or receive by will;
4. Consequent impoverishment of the donor
2. If the donor has no forced heirs, donation
(diminution of his assets). may include all present property provided
he reserves in full ownership or in usufruct:
CHARACTERISTICS
a. The amount necessary to support him
EXTENT TO WHICH DONOR MAY and those relatives entitled to support
DONATE PROPERTY from him;

It may comprehend all the present property of b. Property sufficient to pay the donor’s
the donor, or part thereof, provided he debt contracted prior to the donation.
reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and NOTE: The limitation applies only to simple,
of all relatives who, at the time of the remunerative, and modal donations but not to
acceptance of the donation, are by law entitled onerous ones, which are governed by the law
to be supported by the donor. (NCC, Art. 750) on contracts. (De Leon, 2006)

Future properties as subject of donation RESERVATIONS AND REVERSIONS
(2003 BAR)
Effect if the donor violates the requirement
Future properties cannot be subject of for reservation under NCC, Art. 750
donations. Donations cannot comprehend
future properties.

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A donation where the donor did not reserve demandable debt.
property or assets for himself in full ownership
or in usufruct sufficient for his support and all Remuneratory (Second kind)
relatives legally dependent upon him is not
void. It is merely reducible to the extent that the 1. Consideration
support to himself and his relatives is impaired
or prejudiced. (Pineda, 1999) for future
services; or

2. Donor imposes 1. Onerous – Same

certain form of that of
conditions, contracts.
Reversion in donation
limitations or 2. Gratuitous – Same
It is a condition established in the deed of charges upon form of that of
donation which has for its effect the restoration
or return of the property donated to the donor the donee, donations.
or his estate or in favor of other persons who
must be living at the time of the donation for whose value is
any cause or circumstances. (NCC, Art. 757) inferior to the

donation given.

Onerous

Imposes upon the

NOTE: If the reversion is in favor of other donee a reciprocal
persons who are not all living at the time of the obligation; Burdens,
donation, the reversion stipulated shall be void, charges or services Same as that of
but the donation shall remain valid. are equal or greater contracts.

in value to that of the

donation.

KINDS OF DONATION

1. According to motive or cause: Kinds of donation according to perfection or
a. Simple; extinguishment
b. Remuneratory (1st kind);
c. Remuneratory (2nd kind): Conditional 1. Pure donation – It is one which is not
or Modal donations; or subject to any condition;
d. Onerous donations.
2. Conditional –It is one wherein the donor
2. As to perfection or extinguishment: imposes on the donee a condition
a. Pure; dependent on the happening of a future
b. With a condition; or event or past event unknown to the parties;
c. With a term. and

3. According to effectivity: 3. With a Term – It is one wherein the donor
a. Inter vivos (NCC, Art. 729); imposes on the donee a condition
b. Mortis causa (NCC, Art. 728); or dependent upon the happening of a future
c. Propter nuptials. and certain event.

Kinds of donation according to motive or Effect of illegal or impossible conditions
cause
Like in testamentary dispositions (Art. 873),
PURPOSE FORM only the illegal or impossible conditions are
disregarded. The donation itself remains valid.

Simple (2007 BAR) DONATION INTER VIVOS

Pure liberality Same to that of forms
in donations.
It is a donation which takes effect during the
Remuneratory (First kind) (2007 BAR) lifetime of the donor.

To reward past
merits, services
Limitations imposed by law in making
rendered by the Same to that of forms donations inter vivos

donee to the donor in donations.
provided the same do
1. Donor must Reserve sufficient means for
not constitute a his support and for his relatives who are

287

Property

entitled to be supported by him (NCC, Art. NOTE: It partakes of the nature of testamentary
750); provisions and governed by the rules on
succession. (NCC, Art. 728)
2. Donation cannot comprehend Future
property except donations between future Donation mortis causa must comply with the
husband and wife (FC, Art. 84); and formalities prescribed by law for the validity
of wills
3. No person may give by way of donation
More than he may give by will. Donation mortis causa must comply with the
formalities prescribed by law for the validity of
Some inter vivos donations wills, otherwise, the donation is void and would
produce no effect. That the requirements of
The following donations have been held to be attestation and acknowledgment are embodied
inter vivos: in two separate provisions of the Civil Code
(Articles 805 and 806, respectively) indicate
1. A donation where the causes of revocation that the law contemplates two distinct acts that
have been specified; serve different purposes. An acknowledgment
is made by one executing a deed, declaring
2. A donation where the donor reserved for before a competent officer or court that the
himself a lifetime usufruct of the property, deed or act is his own. On the other hand, the
for if he were still the owner, there would attestation of a will refers to the act of the
be no need of said reservation; instrumental witnesses themselves who certify
to the execution of the instrument before them
3. A donation where the donor warrants the and to the manner of its execution. (Echavez v.
title to the thing which he is donating —
there would be no need of warranty if he is DCDC, G.R. No. 192916, October 11, 2010)
not transferring the title;
Some mortis causa Donations
4. Where the donor immediately transferred
the ownership, possession and The following have been held to be mortis
administration of the property to the donee, causa:
but stipulated that the right of the donee to
harvest and alienate the fruits would begin 1. Where the donor has reserved (expressly or
only after the donor’s death. (But if what impliedly) the option to revoke the
had been transferred in the meantime was donation at any time before death, even
only the administration of the property, the without the consent of the donee;
donation is mortis causa);
2. Where the donation will be void if the
5. Where the donor stated that while he is transferee dies ahead of the transferor.
alive, he would not dispose of the property
or take away the land “because I am 3. If before the donor’s death, it is revocable at
reserving it to him (the donee) upon my his will;
death.” (The Court held this to be inter vivos
because in effect, he had already renounced 4. If the donor retains full or naked ownership
the right to dispose of his property); and and control over the property while he is
still alive;
6. A donation where the donees “should not as
yet get the possession until our demise,” the 5. If what was in the meantime transferred to
administration remaining with the donor the done was merely the administration of
spouses, or either one surviving. the property; and

DONATION MORTIS CAUSA 6. If title will pass only after donor’s death.

These are donations which are to take effect Donation inter vivos vs. Donation mortis
upon the death of the donor. causa

BASIS INTER MORTIS
As to when it VIVOS CAUSA
takes effect
Takes effect Takes effect
during the upon donor’s
lifetime of death.
the donor,

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independentl the doubt should be resolved in favour of
y of his death. donation inter vivos, rather than mortis causa to
avoid uncertainty as to the ownership of the
As to cause Cause is In property subject of the deed of donation.
or donor’s pure contemplatio
n of donor’s ONEROUS DONATIONS (2007 BAR)
consideratio generosity. death
n without Onerous donation is a donation given for which
Valid if donor intention to the donor received a valuable consideration
On survives the dispose of which is the equivalent of the property so
predecease done. the thing in donated. (Pineda, 2009)
case of
On Generally survival. Samples of Onerous Donations
revocability irrevocable
except for Void if donor Where the condition is to take care of the
On grounds survives. donor’s family in the future (Carlos v. Ramil,
formalities provided for G.R. No. 6736, September 5, 1911); or where the
by law. Always donee must take care of the donor’s funeral
On when revocable at expenses. Thus, even if real property is
acceptance Must comply any time and involved, it is not essential to have a public
with the for any instrument. (Manalo v. De Mesa, G.R. No. L-9449,
is made formalities of reason before February 12, 1915)
On when donations. the donor’s
property is Acceptance death. Kinds of onerous donations
conveyed to during Must comply
the done donor’s with the 1. Totally onerous – When the burden is equal
lifetime. formalities of to or greater than the value of the property
On tax a will. donated; and
payable Property
completely After donor’s 2. Partially onerous – When the burden is less
conveyed to death. than the value of the donation (Pineda,
the done. 1999).
Property
retained by Laws that apply to onerous donations
the donor
while he is 1. Totally onerous – Rules on contracts.
still alive. 2. Partially onerous

Donor’s tax Estate tax a. Portion exceeding the value of the
burden – simple donations; and
Test in Determining Whether the Donation
is Mortis Causa or Inter Vivos b. Portion equivalent to the burden – law
on contracts. (Pineda, 1999)
What is controlling is the nature of the act and
its effectivity. If the act is one of disposition, and Rules of contract govern the onerous portion of
effective independently of the donor’s death, it donation; rules of donation only apply to the
is a donation inter vivos. If it is one of excess, if any. Since the donation imposed on
deposition, but its effectivity is dependent upon the donee the burden of redeeming the
the death of the donor, it is a mortis causa property for value, the donation was onerous.
donation. As an endowment for a valuable consideration,
it partakes of the nature of an ordinary
NOTE: The title given to a deed of donation is contract; hence, the rules of contract will
NOT a determinative factor which makes the govern and Art. 765 of the New Civil Code finds
donation inter vivos or mortis causa what is no application with respect to the onerous
controlling is the provision stated in the deed portion of the donation. Insofar as the value of
and must be read in its entirety. the land exceeds the redemption price paid for
by the donee, a donation exists, and the legal
If there is doubt on the nature of the donation, provisions on donation apply. (Calanasan v. Sps.
Dolorito, G.R. No. 171937, November 15, 2013)

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HOW MADE AND ACCEPTED Donation is perfected from the moment the
donor knows of the acceptance by the donee.
Persons who must accept the donation (NCC, Art. 734)

The donee must accept the donation personally, The donation is perfected, not from the time of
or through an authorized person with a special acceptance but from the time of knowledge by
power for the purpose, or with a general and the donor that the donee has accepted (the
sufficient power, otherwise, the donation shall knowledge may of course be actual or
be void. (NCC, Art. 745) (2010 BAR) constructive). If there is no acceptance, the
donation will be null and void.
Reason for the need for an acceptance
FORMALITIES FOR DONATION OF
Because the donee may not want to accept the REAL/PERSONAL
donor’s liberality or if donation is onerous, he
may not agree with the burden imposed. Formalities required for donation

Rule prior to knowledge of acceptance 1. As regards movable property: (1998,
2000, 2007 BAR)
Prior to learning of the acceptance, there is as a. With simultaneous delivery of
yet no perfected donation (no donation at all), property donated:
hence, the donor may give the property to i. For P5,000 or less – May be
somebody else, for he has not really parted with oral/written
the disposition of the property. ii. For more than P5,000 – Written

When the donation and the acceptance are in public or private document
in the same instrument
b. Without simultaneous delivery:
If the donation and the acceptance are in the
same instrument, containing the signatures of i. The donation and acceptance
both donor and donee, it is understood that must be written in a public or
there is already knowledge of the acceptance,
hence, the donation is already perfected. private instrument (Statute of
Frauds), regardless of value.
Donations made to incapacitated persons
Otherwise, donation is
Donations made to incapacitated persons shall
be void, though simulated under the guise of unenforceable.
another contract or through a person who is
interposed. (NCC, Art. 743) 2. As regards immovable property: (1993,
2000, 2010 BAR)
Persons who must accept the donation made a. Must be in a public instrument
in favor of a minor specifying
i. The property donated; and
If the donation is pure and simple and does not ii. The burdens assumed by the
require written acceptance, the minors can done.
accept the donation by themselves.
b. Acceptance may be made:
If the donation needs written acceptance, it may i. In the same instrument; or
be accepted by their guardian or legal ii. In another public instrument,
representatives. (NCC, 741) notified to the donor in authentic
form, and noted in both deeds.
PERFECTION OF DONATION Otherwise, donation is void.

Q: The Roman Catholic Church accepted a
donation of a real property located in Lipa
City. A deed of donation was executed,
signed by the donor, Don Mariano, and the
donee, the Church, as represented by Fr.
Damian. Before the deed could be notarized,
Don Mariano died. Is the donation valid?
(2014 BAR)

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A: The donation is VOID. The donation of an entrusted to them, for the simple reason that
immovable property must be in a public they are not the owners thereof.
instrument in order for it to be valid. In this
case, the donor died even before the Status of a donation of ward’s property by a
notarization of the deed of donation. Hence, it guardian
does not satisfy the requirement of being in a
public instrument for the donation to be valid. It is believed that such a donation, if made in
the guardian’s name is null and void. On the
QUALIFICATIONS OFDONOR/DONEE other hand, if made by the guardian in the name
of, and with the consent of the ward, it would be
DONOR valid provided judicial permission is obtained.
This is particularly true if the donation benefits,
Any person who has capacity to contract and in some way, the ward.
capacity to dispose of his property may make a
donation. (NCC, Art. 735) His capacity shall be NOTE: When the donation is clearly in the
determined as of the time of the making of interest of the beneficiaries, it would be
donation. (NCC, Art. 737) contrary to the spirit and intent of the law to
say it cannot be done.
The term “person” who could make donations
refers to natural and artificial persons with DONEE
legal personalities. With respect to artificial
persons, they must be authorized by their All those who are not specially disqualified by
Articles to donate. law.

NOTE: “Making of donation” shall be construed Q: May an unborn child be a donee or a
to mean perfection of the donation, otherwise if donor?
“making” means “giving,” Art. 737 would in
some cases be inconsistent with Art. 734 which A: An unborn child may be a donee but not a
states that “the donation is perfected from the donor.
moment the donor knows of the acceptance by
the donee.” To avoid a contradiction, the rule As a donee, donations made to conceived and
may be stated thus: “at the time the donation is unborn children may be accepted by those
perfected, both the donor and the donee must persons who would legally represent them if
be capacitated.” they were already born. (NCC, Art. 742)

Status of a donation made by an NOTE: If the conceived child did not become a
incapacitated person person, the donation is null and void. An
unborn child cannot be a donor because it is
Following the laws in contracts (which are of essential for a person to be able to make a
suppletory application to simple donations) donation, he must have full civil capacity.
said donations should be merely considered
voidable. The same answer should be given in When a person is “specially disqualified’’ to
case there was vitiated consent (as in the case accept a donation
of fraud or intimidation).
“Specially disqualified’’ does not refer to those
Q: May an emancipated minor by himself incapacitated to contract like minors or those of
make donation mortis causa? unsound mind, but to people such as those
mentioned in Art. 739 and husbands and wives
A: YES, because at the age of 17, a person of with respect to immoderate donations from
sound mind can already make a valid will. each other (donations of spouses inter se).

Donation by a guardian or trustee Natural and juridical persons may be donees

Guardians and trustees may of course donate Since the law does not distinguish, both natural
their own properties, unless they are otherwise and juridical persons may become donees. An
disqualified by the law, but not the property unregistered partnership may become a donee

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because it is a juridical or artificial person and
despite its non-registration. But the conjugal
partnership itself, not being natural or juridical, NOTE: The presumption that the
cannot be a donee. Instead, the donation should donations was made in fraud of
be given by the stranger to the husband and creditors arises when the donor has
wife, the share of the husband being credited to not left sufficient assets to pay his
his capital, and that of the wife being debts, at the time of donation.
considered part of her paraphernal property.
c. The donee shall not be liable beyond
EFFECT OFDONATION/LIMITATIONS the value of donation received.

IN GENERAL DOUBLE DONATIONS

Rights and actions the donee acquires There is double donation when the same thing
has been donated to two or more persons.
The donee is subrogated to the rights and
actions which in case of eviction would pertain The rule on double sale under Art. 1544 of NCC
to the donor. shall be applicable.

Liability of donors for eviction of hidden Rule: First in time, stronger in right
defects
1. If movable, one who first takes possession
1. If the donation is simple or remunerative, in good faith.
donor is not liable for eviction or hidden
defects because the donation is gratuitous, 2. If immovable, one who first recorded in the
unless the donor acted in bad faith;and registry of property in good faith.

2. If the donation is onerous, the donor is If no inscription, one who first took possession in
liable on his warranty against eviction and good faith.
hidden defects but only to the extent of the
burden. In absence thereof, one who can present oldest
title.
Rules regarding the liability of the donee to
pay the debts of donor EXCESSIVE/INOFFICIOUS

1. Where donor imposes obligation upon the Rule in case of an excessive or inofficious
donee, (NCC, Art. 758) the donee is liable: donation

a. To pay only debts previously 1. A donor may not donate more than what he
contracted; and can give by will. If he donates more than
what he cannot give by will, the donation
b. For debts subsequently contracted will become excessive and to insist on it, the
only when there is an agreement to legitime of the compulsory heirs will be
thateffect. impaired. Legitime is reserved for the
compulsory heirs and the same cannot be
NOTE: But he is not liable for debts in impaired or disposed of by the testator;and
excess of the value of donation
received, unless the contrary is 2. The donee cannot receive by way of
intended. donation more than what he may receive by
will. If the donee can receive by donation
2. Where there is no stipulation regarding the (devise or legacy) more than what the
payment of debts (NCC, Art. 759): testator is allowed by law to give, the
donation is inofficious and it may be
a. Donee is generally not liable to pay suppressed totally or reduced as to its
donor’s debts; excess.

b. Donee is responsible only if donation
has been made in fraud of creditors;

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IN FRAUD OF CREDITORS 8. To an Attesting witness to the execution of
donation, if there is any, or to the spouse,
Remedy in case of donations executed in parents or children or anyone claiming
fraud of creditors under them (NCC, Art. 1027);

The creditors may rescind the donation to the 9. To the Priest who heard the confession of
extent of their credits. The action is known as the donor during the latter’s last illness, or
accion pauliana. (NCC, Art. 1381) the minister of the gospel who extended

NOTE: If the donor did not reserve enough spiritual aid to him during the same period
assets to pay his creditors whom he owed (NCC, Art. 1027); or
before the donation, the donation is presumed 10. To a Physician, surgeon, nurse, health
to be in fraud of creditors. officer or druggist who took care of the
donor during his/her last illness. (NCC, Art.
VOID DONATIONS 1027)

Donations prohibited by law (1990, 2000 REVOCATION OR REDUCTION
BAR) (LAW SCRA POP) (1991, 2003, 2006 BAR)

Prohibition on donation inter vivos GROUNDS FOR REVOCATION
AND REDUCTION
1. By persons guilty of Adultery or
concubinage at the time of donation (NCC, Grounds for revocation of donation
Art. 739);
1. Under Art. 760
The action for declaration of nullity may be
brought by the spouse of the donor or a. Birth of a donor’s child or children
donee; and the guilt of the donor and donee
may be proved by preponderance of (legitimate, legitimated, or
evidence. (NCC, Art. 739) illegitimate) after the donation, even

2. Those made between persons found guilty though born after his death;
of the same Criminal offense, in
consideration thereof (NCC, Art. 739); b. Appearance of a donor’s child who is
missing and thought to be dead by the
NOTE: The phrase “found guilty of same
offense” does NOT refer only to donor; or
concubinage and adultery. c. Subsequent adoption by the donor of a

3. Those made to a public Officer or his wife, minor child.
descendants and ascendants, by reason of
his office; 2. Under Art. 764 – When the donee fails to
comply with any of the conditions which
Relative Incapacity to Succeed: the donor imposed upon the donee.

4. By individuals, associations or corporations 3. Under Art. 765 – By reason of ingratitude
not permitted by Law to make donations
(NCC, Art. 1027); a. If the donee should commit some
offense against the person, the honor
5. By a Ward to the guardian before the or the property of the donor, or of his
approval of accounts (NCC, Art. 1027); wife or children under his parental
authority;
6. By Spouses to each other during the
marriage or to persons of whom the other b. If the donee imputes to the donor any
spouse is a presumptive heir (FC, Art. 87); criminal offense, or any act involving
moral turpitude, even though he
7. To Relatives of such priest, etc. within the should prove it, unless the crime or act
fourth degree, or to the church to which has been committed against the donee
such priest belongs (NCC, Art. 1027); himself, his wife or children under his
authority; or

c. If he unduly refuses him support when
the donee is legally or morally bound

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Property

to give support to the donor. imposed in the donation. A judicial action is
essential if the donee refuses to return the
NOTE: The list of grounds for property, or pay its value to the donor, or to
revocation by reason of ingratitude latter’s heirs or assigns. However, the action
under Art. 765 is exclusive. must be filed within the prescriptive period
fixed by law, otherwise, it will be barred. (De
Grounds for reduction of donation Luna vs. Abrigo, GR No. L-57455, January
18,1990)
The same grounds for revocation under Art.
760. The donation shall be reduced insofar as it The breach of the condition in the donation
exceeds the portion that may be freely disposed causes the automatic revocation. All the donor
of by will, taking into account the whole estate has to do is to formally inform the donee of the
of the donor at the time of the birth, revocation. Judicial intervention only becomes
appearance, or adoption of a child. (NCC, Art. necessary if the donee questions the propriety of
761) the revocation. Even then, judicial intervention
is required to merely confirm and not order the
Revocation of perfected donations revocation. Hence, there can be no 10-year
prescriptive period to file an action to speak of.
Once a donation is perfected, it cannot be When the donee does not contest the revocation,
revoked without the consent of the donee no court action is necessary. (Province of
except on grounds provided by law. (NCC, Camarines Sur vs Bodega Glassware, G.R. No.
Articles 760, 764 and 765) 194199, March 22,2017)

Revocation or reduction is NOT automatic. Q: Can the creditors of the deceased file an
action for reduction of inofficious donation?
The emergence of the circumstances
enumerated in Art. 760 do not automatically A: NO. Only compulsory heirs or their heirs and
revoke or reduce the donation. The revocation successors in interest may sue for reduction of
or reduction is authorized only if the amount or inofficious donations. The remedy of the
value of the property donated exceeds the creditor is to sue, during the lifetime of the
disposable free portion. donor, for the annulment of inofficious
donation made in fraud of creditors (NCC, Art.
Q: For purposes of prescription of action, 1387); or they can go against the estate of the
what is the rule in case of concurrence of deceased and not against the donees.
two or more grounds for revocation or
reduction? EFFECTS OF REVOCATION OR REDUCTION
OF DONATION
A: In the event that two or more causes are
present, the earliest among them shall be the Obligations of the donee upon the revocation
starting point in the reckoning of the period of or reduction of donation
prescription of the action. (Pineda, 2009)
1. Return the thing or the object of the
Execution of a donation subject to a donation;
condition
2. If the property had already been alienated
A donor may execute a donation subject to a and could not be recovered anymore, its
condition, the non-fulfilment of which value shall be paid to the donor. The value
authorizes the donor to go to court to seek its shall be the price of the property estimated
revocation (not reduction). at the time of the perfection of the donation;
and
Revocation of donation in a conditional
donation 3. If the property had been mortgaged, the
donor may pay the mortgage obligations,
A donor cannot revoke a conditional donation subject to reimbursement by the donee.
unilaterally, that is, without going to court, even (NCC, Art. 762)
if the donee had breached any of the obligations
Obligation of the donee to return the fruits

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1. If due to non-compliance with any condition year prescriptive period?
imposed on the donation – Fruits acquired
after non-compliance shall be returned;and A: The right of action to revoke or reduce is
transmitted to his heirs. (Pineda, 1999)
2. If due to causes stated under Art. 760,
ingratitude, or inofficious donations – fruits Q: Jose, single, donated a house and lot to his
acquired from the time the complaint is only niece, Maria, who was of legal age and
filed shall be returned. (NCC, Art. 768) who accepted the donation. The donation
and Maria's acceptance thereof were
PRESCRIPTION evidenced by a Deed of Donation. Maria then
lived in the house and lot donated to her,
Period of prescription of action for religiously paying real estate taxes thereon.
revocation or reduction of donation Twelve years later, when Jose had already
passed away, a woman claiming to be an
BASIS PRESCRIP RECKONING illegitimate daughter of Jose filed a
TIVE PERIOD complaint against Maria. Claiming rights as
Birth of an heir, the woman prayed that Maria be
child PERIOD From the birth of the ordered to reconvey the house and lot to
Four years first child. Jose's estate. In her complaint she alleged
Legitimati Four years From birth of the that the notary public who notarized the
on legitimated child, Deed of Donation had an expired notarial
Four years not from the date of commission when the Deed of Donation was
Recognitio marriage of the executed by Jose. Can Maria be made to
n of an Four years parents. reconvey the property? What can she put up
From the date the as a defense? (2015 BAR)
illegitimat Four years recognition of the
e child child by any means A: NO. Maria cannot be compelled to reconvey
Four years enumerated in Art. the property. The Deed of Donation was void
Adoption 712 of the Family because it was not considered a public
One year Code. document. However, a void donation can trigger
Appearan From the date of acquisitive prescription. (Solis v. CA, G.R. Nos.
ce of a filing of the 46753-54, August 25, 1989; Doliendo v. Biarnesa,
child original petition G.R. No. 2765, December 27, 1906) The void
for adoption, donation has a quality of titulo colorado enough
believed to provided a decree for acquisitive prescription especially since 12
be dead of adoption is years had lapsed from the deed of donation.
Non- issued thereafter.
From the date an Maria can set up the defense that the action has
complianc information was prescribed. An action for revocation of the
e with any received as to the donation on the ground that it impaired the
condition existence or survival legitime of a compulsory heir may only be filed
imposed of the child believed within ten (10) years from the time the cause of
to be dead action accrues which is at the time of the death
Act of From the non- of Jose. The facts are not clear as to when Jose
ingratitud compliance with the died, but on the assumption that he died ten
condition. years prior to the filing of the action, the same
e has clearly prescribed.
From the time the
donor had learned of INGRATITUDE
the donee’s act of
ingratitude, it was Q: Are there any other grounds for
possible for him to revocation of donation by reason of
file an action. ingratitude other than those enumerated
under Art. 765 of NCC?
Q: What if the donor dies within the four-
A: NONE. The grounds under Art. 765 are

295

Property

exclusive.

NOTE: The rationale behind the article is that a
person who has been favored with kindness
and generosity has the moral obligation to be
and remain grateful to the benefactor. It is a
matter of tradition that generosity must not be
reciprocated with ungratefulness.

Q: Suppose the husband of the donee had
maligned the donor, is there a ground for
revocation by reason of ingratitude?

A: None. The act must be imputable to the
donee himself and not to another. (Pineda,
1999)

Mortgages and alienations effected before
the notation of the action for revocation

If there are mortgages and alienations effected
before the notation of the complaint for
revocation in the Registry of Property, such
alienations and mortgages shall remain valid
and must be respected. (NCC, Art. 766)

NOTE: Alienations and mortgages after the
registration of the pendency of the complaint
shall be void.

Remedy of the donor

If the property is already transferred in the
name of the buyer or mortgagee, the remedy of
the donor is to recover the value of the property
determined as of the time of the donation. (NCC,
Art. 767)

Waiver of actions to revoke donations

The donor CANNOT make a renunciation of
actions to revoke in advance. Such waiver is
void. However, the donor may renounce an
action to revoke if the act of ingratitude had
already been done.

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