Properties Part 1 & 2

The preliminary examination in my Civil Law Review subject was given last night. There are just six questions all of which deals with Properties. Now to continue on the topic of Properties... Easement An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. Dominant Estate – the immovable in favor of which the easement is established; land that benefits from easement on another (usually adjacent) property Servient Estate – one which is burdened with a servitude Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. Classes as to recipient of benefit Real easement – when it is in favor of another immovable Personal easement – when it is in favor of a community, or one or more persons to whom the encumbered estate does not belong Only immovables may be burdened with easements. There can be no easement imposed on personal property. Classes as to its exercise: Continuous easements – those the use of which is or may be incessant (continuing w/o interruption), without the intervention of any act of man. Discontinuous – those which are used at intervals and depend upon the acts of man. Apparent – those which are made known and are continually kept in view by external signs that the reveal the use and enjoyment of the same. Non-apparent – those which does not show external indication of their existence. Positive – those which impose upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself.

Negative – those which prohibit the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. Rules on acquisition of easement by prescription: (a) if the easement is positive – begin counting the period from the day the dominant estate began to exercise it. (b) If the easement is negative – begin counting from the time notarial prohibition was made on the servant estate. Rights and Obligations of the Owners of the Dominant and Servient Estates: Rights of the Dominant Estate: (1) To exercise the easement and all necessary rights for its use including accessory easements. (2) To make on the servient estate all works necessary for the use and preservation of the servitudes , BUT – - this must be at his own expense - he must notify the servient owner - select convenient time and manner - he must not alter the easement nor render it more burdensome (3) To ask for a MANDATORY INJUNCTION to prevent impairment or obstruction in the exercise of the easement as when the owner of the servient estate obstructs the right of way by building a wall or fence. (4) To RENOUNCE totally (for an easement is indivisible) the easement if he desires exemption from contribution to expenses. Obligations of the Dominant Estate: (1) He cannot alter the easement (2) He cannot make it more burdensome (3) If there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the BENEFITS received by each estate (and not in proportion to the VALUE of each estate). In the absence of proof, we should presume the benefits to be equal. (4) Regarding the making of repairs, it must be at his own expense. Rights of servient estate: (1) To retain ownership and possession of the portion of his land affected by

the easement even if indemnity for the right is given unless the contrary has been stipulated. (2) To make USE of the easement, unless deprived by the stipulation provided that the exercise of the easement is not adversely affected and provided further that he contributes to the expenses in proportion to BENEFITS received, unless there is a contrary stipulation. (3) To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant estate. Obligations of the servient estate: (1) He cannot impair the use of the easement. (2) He must contribute to the expenses in case he uses the easement, unless there is a contrary stipulation. (3) In case of impairment, to restore conditions to the status quo at his expense plus damages. (4) To pay for the expenses incurred for the change of location or form of the easement (in the proper use). Modes of extinguishing easements: (1) By merger in the same person of the ownership of the dominant and servient estate. (2) By non-user for ten years; discontinued easements – this period shall be computed from the day on which they ceased to be used; continuous easement – from the day on which an act contrary to the same took place. (3) When either or both of the estates fall into such condition that the easements cannot be used. Bad condition of the tenement or impossibility of use. (4) By expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional. (5) By the renunciation of the owner of the dominant estate. (6) By the redemption agreed upon between the owners of the dominant and servient estates. Donations Donation inter vivos; its characteristics

In Magat vs CA, et al GR No. 106755, Feb 1, 2002, there was an irrevocable donation in favor of the children by the mother. It however provided that it cannot be encumbered, alienated or sold and that the property shall remain in the possession of the donor while she is alive and that the donation shall take effect after her death. Donation mortis causa; its characteristics In Magsalang, et al vs The Heirs of Corazon Cabatingan, et al GR No 131953, June 5, 2002, (Austria-Martinez), a donation was made in consideration of the love and affection of the Donor for the Donee” xxx “ it became effective upon the death of the Donor provided that in the event the Donee should die before the Donor, the present donation shall be deemed automatically rescinded and of no force or effect.” It was contended that the donees through machination and strategies and taking advantage of the fragile condition of the donor, caused the execution of the deed. It was further contended that the formalities of a will were not complied with considering that the donation was one of a donation mortis causa. The donees contended otherwise saying that the donor knew fully well the preparation of the document. The lower court ruled it to be one of mortis causa. The donees contended on appeal that it was inter vivos considering that the donation was done in consideration of the love and affection of the donor to the donee. The stipulation on rescission in case donee predeceased the donor was considered by them as a resolutory condition that confirms the nature of the donation inter vivos. The Supreme Court held that the donation is one of a donation mortis causa. In a donation mortis cause, “the right of disposition is not transferred to the donee while the donor is still alive.” (Sicad vs CA, 294 SCRA 183). In determining whether a donation is one of mortis causa, the following characteristics must be taken into account: 1. It conveys no title or ownership to the transferee before the death of the transferor, or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

2. That before the his death, the transfer should be revocable by the transferor at will, ad nutum, but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; 3. That the transfer should be void if the transferor should survive the transferee. The nature of the donation as mortis causa is confirmed by the fact that the donation does not contain any clear provision that intends to pass propriety rights to petitioners prior to Cabatingan’s death. (Reyes vs Mosqueda, 187 SCRA 661; Bonsanto vs CA 95 Phil 481). The phrase “to become effective upon the death of the Donor” admits of no other interpretation but that the donor did not intend to transfer the ownership of the properties to petitioners during her lifetime. The donees themselves expressly confirmed the donation as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of donation, to wit: “That the Donee does hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of the Donor.” -andSigned by the above-named Donor and Donee at the foot of this Deed of Donation mortis causa, which consists of two (2) pages xxx.” That the donation was made “in consideration of the love and affection of the donor” does not qualify the donation as inter vivos because transfers mortis causa may also be made for the same reason. Nuisance A nuisance is any act, omission, establishment, business, condition of property, or anything else witch: 1) Injures or endaangers the health or safety of others; or

2) Annoys or offends the senses; or 3) Shocks, defies or disregards decency or morality; or 4) Obstructs or interferes with the free passage of any public highway or stret, or any body of water; or 5) Hinders or impairs the use of property. Kinds - public and private Remedies: 1) A prosecution under the RPC or any local ordinance; or 2) A civil action; or 3) Abatement, without judicial proceedings. Question of the Day (Lifted from my exam last night) In what case citation is the doctrine of self-help in property law recognized? Explain. Posted by Lawstude at 8:06 AM 0 commented Labels: Kabatas Sibil

Wednesday, January 11, 2006

All About Properties (Part 1) Our preliminary examination on Civil Law Review with topic on Properties shall be given tonight. The subject of properties are divided into the following topics: -

Classification of Properties Accession Quieting of Title Co-ownership Possession Usufruct Easement Donations Nuisance

Properties may be classified as follows: As to a) nature/mobility and non-mobility - immovable or movable b) ownership - private ownership or public dominion c) alienability - within the commerce of man or outside the commerce of man d) existence - present or future property e) materiality or immateriality - tangible/corporeal or intangible/incorporeal f) dependence or importance - principal or accessory g) capability of substitution - fungible or non-fungible h) nature of definiteness - generic or specific g) whether in custodia legis or free property On the topic of accession, the following lectures might help: Immovables Forms of Natural Accession: a) Alluvium - is the soil deposited or added to the land adjoining the banks of the rivers which they gradually receive as an effect of the current of the waters. To the owners of the land adjoining the bank of the rivers belong the accretion which they gradually receive from the effects of the current of the river. (Note: Registration of the accretion must be sought, otherwise it may be lost thru prescription.) b) Avulsion - is the process whereby the current of a river, creek or torrent segregates from an estate on its bank known portion of land and transfer it to another estate. (Note: The land still belongs to the owner of the estate to which the segregated portion belong, provided he remove the same within

two years.) c) Change of course of a river - River bed which are abandoned through the natural change of course of a river, ipso facto, belong to the owners whose lands are occupied by the new course in propertion to the area lost. (Note: The term "in proportion to the area lost" has no application if there is only one owner. Such that if A owns the land which is the new river bed, he alone and no other will benefit in the abandoned river bed.) d) Formation of islands - due to the branching of a river. Same owner which may either be by isolation or separation. Movables Principle - The accessory thing follows the principal object. Tests - (a)intention; (b) value; (c) greater in volume;and (d) merit Quieting of Title An action to quiet will prosper when the following requisites are present: a) Existence of an instrument or record or claim or encumbrance or proceeding; b) The document appears to be valid or effective; c) But the document is in truth and in fact, invalid, ineffective, voidable or unenforceable; and d) The document is prejudicial to the title. Co-Ownership Ownership on an undivided thing or right belongs to two or more persons. Characteristics - Plurality of subjects, unity of objects, co-owner has no separate and distinct legal personality from co-owners, no particularity of portion, creation for collective enjoyment. Nature - it has the nature of a trust. Possession Holding of a thing or enjoyment of a right. Outline of the effects of possession in good faith and possession in bad faith.

a) Fruits received 1. Possessor in GF -entitled to fruits received while possession is still in GF. 2. Possessor in BF - shall reimburse fruits received of which legitimate possessor could have received subject to Art. 443. b) Pending fruits 1. PGF and legitimate possessor shall be liable for expenses of the cultivation and shall share in the net harvest in proportion to the time of their possession. 2. PBF - no rights c) Charges 1. Possessor whether in GF or BF and legitimate possessor shall share in proportion to the time of their possession. d) Expenses Necessary expenses 1. PGF - right of reimbursement and retention 2. PBF - right of reimbursement only Useful expenses 1. PGF - right of reimbursement, retention and limited right of removal 2. PBF - no right Ornamental expenses 1. PGF - limited right of removal 2. PBF - limited right of removal e) Deterioration or loss 1. PGF - no liability, unless due to his fault or negligence after he had decome PBF 2. PBF - always liable, whether due to his fault or negligence or due to fortuitous event Usufruct

Concept - 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. Obligations of the usufructuary: At the commencement of the usufruct: 1. to make an inventory report 2. to give the necessary security During the pendency of the usufruct: 1. to take care of the property as a good father of a family 2. to make ordinary repairs on the property 3. to notify the owner in case the need for extraordinary repairs on the property is urgent 4. to pay the annual charges and taxes and those considered as a lien on the fruit 5. to notify the owner of any act of a third person that may be prejudicial to the right of ownership 6. to pay the expenses, costs and liabilities in suits with regard to the usufruct Upon termination of the usufruct: 1. to deliver the thing to the owner, without prejudice to the right of retention pertaining to him or to his heirs for taxes and extraordinary expenses which should be reimbursed Usufructuary's right of reimbursement: 1. The usufructuary shall have the right to demand reimbursement from the owner of all necessary expenses which might have incurred for the preservation of the property. 2. The usufructuary is not entitled for reimbursement of useful and ornamental expenses, but he may remove improvements provided that it is possible to do so without damage to the property. In addition, he may set-ff such improvements against damage to the same.

... to be continued Posted by Lawstude at 10:20 AM 2 commented Labels: Sib Kabatas il