Property TOPIC: USUFRUCT IN GENERAL, RIGHTS AND OBLIGATIONS OF THE USUFRUCTUARY AND EXTINGUISHMENT OF THE USUFRUCT (1989, 1995, 1996, 1997, 1998) I

On 1 January 1980, Minerva, the owner of a building, granted Petronila a usufruct over theproperty until 01 June 1998 when Manuel, a son of Petronila, would have reached his 30th birthday.Manuel, however, died on 1 June 1990 when he was only 26 years old.

Minerva notified Petronila that the usufruct had been extinguished by the death of Manueland demanded that the latter vacate the premises and deliver the same to the former. Petronilarefused to vacate the place on the ground that the usufruct in her favor would expire only on 1June 1998 when Manuel would have reached his 30th birthday and that the death of Manuel did notextinguish the usufruct.

Whose contention should be accepted? (1997) ANSWER:

Petronila’s contention is correct. Under Article 606 of the Civil Code, a usufruct granted forthe time that may elapse before a third person reaches a certain age shall subsist for the number ofyears specified even if the third person should die unless there is an express stipulation in thecontract that states otherwise. In the case at bar, there is no express stipulation that theconsideration for the usufruct is the existence of Petronila’s son. Thus, the general rule and notthe exception should apply in this case.

ALTERNATIVE ANSWER:

This is a usufruct which is clearly intended for the benefit of Manuel until he reaches 30years of age, with Petronila serving only as a conduit, holding the property in trust for his benefit.The death of Manuel at the age of 26, therefore, terminated the usufruct.

TOPIC: RIGHT OF ACCESSION (1989, 1992, 2000, 2001) I

Demetrio knew that a piece of land bordering the beach belonged to Ernesto. However,since the latter was studying in Europe and no one was taking care of the land, Demetrio occupiedthe same and constructed thereon nipa sheds with tables and benches which he rented out topeople who wanted to have a picnic by the beach. When Ernesto returned, he demanded the returnof the land. Demetrio agreed to do so after he has removed the nipa sheds. Ernesto refused to let Demetrio remove the nipa sheds on the ground that these already belonged to him by right of accession. Who is correct? (2000)

ANSWER:

Ernesto is correct. Demetrio is a builder in bad faith because he knew beforehand that theland belonged to Demetrio. Under Art. 449 of the NCC, one who builds on the land of another loseswhat is built without right to indemnity. Ernesto becomes the owner of the nipa sheds by right ofaccession. Hence, Ernesto is well within his right in refusing to allow the removal of the nipa sheds.

II

Subsequent to the original registration of a parcel of land bordering a river, its area wasincreased by accession. This additional area was not included in the technical description appearingon the Torrens Certificate of Title having been acquired subsequent to the registrationproceedings. May such additional area be acquired by third persons thru prescription? Give yourreasons. (1989)

ANSWER:

The Land Registration Law provides that no title in derogation of the registered owner maybe acquired by adverse possession or acquisitive prescription. Since the law refers to registeredlands, the accession mentioned in this question may be acquired by a third person through adversepossession or acquisitive prescription.

ALTERNATIVE ANSWER:

If the accession is man made, then it cannot be considered as private property. It belongsto the public domain, and, therefore, cannot be acquired by adverse possession or acquisitiveprescription.

TOPIC: BUILDER IN GOOD FAITH (1992, 1999, 2000, 2001)

IBartolome constructed a chapel on the land of Eric. What are Bartolome’s rights if he were:A. A possessor of the land in good faith?B. A possessor of the land in bad faith?C. A usufructuary of the land?D. A lessee of the land? (1996)

ANSWERS: A.

A chapel is a useful improvement. Bartolome may remove the chapel if it can be removedwithout damage to the land, unless Eric chooses to acquire the chapel. In the latter case,Bartolome has the right to the reimbursement of the value of the chapel with right ofretention until he is reimbursed. (Art. 448 in relation to Art. 546 and 547, NCC).

B. Bartolome, under Art. 449 of the NCC, loses whatever he built, without any right to indemnity. C.

Bartolome has the right to remove the improvement if it is possible to do so withoutcausing damage to the property (Art. 579, NCC). He may also set off the improvementagainst any damages which the property held in usufruct suffered because of his act or theacts of his assignee. (Art. 580, NCC)

D.

The owner of the land, as lessor, can acquire the improvement by paying for one-half of itsvalue. Should the lessor refuse to reimburse said amount, the lessee may remove theimprovement, even though the principal thing may suffer damage thereby (Art. 1678, NCC).

ALTERNATIVE ANSWERS: A.

Assuming that Eric acted in good faith, Bartolome’s rights will depend upon what optionEric chooses. Eric, the owner of the land, may choose to acquire the chapel, which is auseful expense or to sell the land to the builder (Bartolome).

If Eric chooses to acquire the chapel, he has the right to reimbursement for useful expenses, with a right of retention until paid. If Eric chooses to sell the land to Bartolome, Bartolome may refuse to buy the landif the value of the land is considerably more than the value of the building, in which case,there will be a forced lease between them.

B.

It is the owner of the land who has the right to acquire the chapel without payingindemnity, plus damages, or to require Bartolome to remove the chapel, plus damages or torequire Bartolome to buy the land, without any option to refuse to buy it. (Arts. 449 and458, NCC)

If Eric acted in bad faith, then his bad faith cancels the bad faith of Bartolome, and both will be taken to have acted in good faith. (Art. 453, NCC) ADDITIONAL ANSWER:

A. If Eric acted in good faith, then Bartolome has the right of absolute removal of the chapel,plus damages. However, if Eric chooses to acquire the chapel, then Bartolome has the right to reimbursement, plus payment of damages, with right of retention (Art. 454 in relation to Art.447, NCC)

II

Mike built a house on his lot in Pasay City. Two years later, a survey disclosed that aportion of the building actually stood on the neighboring land of Jose, to the extent of 40 squaremeters. Jose claims that Mike is a builder in bad faith because he should know the boundaries of hislot, and demands that the portion of the house which encroached on his land should be destroyedor removed. Mike replies that he is a builder in good faith and offers to buy the land occupied bythe building instead.

A. Is Mike a builder in good faith or bad faith? Why? B. Whose preference should be followed? Why? (2001) ANSWERS: A.

Yes, Mike is a builder in good faith. There is no showing that when he built his house, heknew that a portion thereof encroached on Jose’s lot. Unless one is versed in the science ofsurveying, he cannot determine the precise boundaries or location of his property by merelyexamining is title. In the absence of contrary proof, the law presumes that the encroachment wasdone in good faith [Technogas Phils. vs. CA, 268 SCRA 5, 15 (1997)]

B.

None of the preferences should be followed. The preference of Mike cannot prevail becauseunder Art. 448 of the CC, it is the owner of the land who has the option or choice, not the builder.On the other hand, the option belongs to Jose, he cannot demand that the portion of the houseencroaching on his land be destroyed or removed because this is not one of the options given bylaw to the owner of the land. The owner may choose between the appropriation of what was builtafter payment of indemnity, or to compel the builder to pay for the land of the value of the land isnot considerably more than that of the building. Otherwise, the builder shall pay rent for theportion of the land encroached.

ALTERNATIVE ANSWERS: A.

Mike cannot be considered a builder in good faith because he built his house without firstdetermining the corners and boundaries of his lot to make sure that his construction was within theperimeter of his property. He could have done this with the help of a geodetic engineer as anordinary prudent and reasonable man would do under the circumstances.

B.

Jose’ s preference should be followed. He may have the building removed at the expense ofMike, appropriate the building as his own, oblige Mike to buy the land and ask for damages inaddition to any of the three options. (Arts. 449, 450, 451, CC)

TOPIC: EASEMENT (CONCEPT, KINDS, AND EFFECTS) ( 1993, 1995, 1996, 2000, 2001, 2002)

I

Lauro owns an agricultural land planted mostly with fruit trees. Hernando owns an adjacent land devoted to his piggery business, which is two (2) meters higher in elevation. AlthoughHernando has constructed a waste disposal lagoon for his piggery, it is inadequate to contain the waste water containing pig manure, and it often overflows and inundates Lauro's plantation. Thishas increased the acidity of the soil in the plantation, causing the trees to wither and die. Laurosues for damages caused to his plantation. Hernando invokes his right to the benefit of a naturaleasement in favor of his higher estate, which imposes upon the lower estate of Lauro the obligationto receive the waters descending from the higher estate. Is Hernando correct? (2002)

ANSWER:

Hernando is wrong. It is true that Lauro’s land is burdened with the natural easement toaccept or receive the water which naturally and without interruption of man descends from ahigher estate to a lower estate. However, Hernando has constructed a waste disposal lagoon for hispiggery and it is this waste water that flows downward to Lauro's land. Hernando has, thusinterrupted the flow of water and has created and is maintaining a nuisance. Under Art. 697 of theCC, abatement of a nuisance does not preclude recovery of damages by Lauro even for the pastexistence of a nuisance. The claim for damages may also be premised on Art. 2191 (4) of the CC.

ALTERNATIVE ANSWER: Hernando is not correct. Article 637 of the New Civil Code provides that the owner of the higher estate cannot make works which will increase the burden on the servient estate. (Remman Enterprises, Inc. v. CA, 330 SCRA 145 [2000]). The owner of the higher estate may be compelled to pay damages to the owner of the lower estate. II

Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same fromFelisa, the original owner. Thereafter, Emma discovered that Felisa had granted a right of way overthe land in favor of the land of Georgina, which had no outlet to a public highway, but theeasement was not annotated when the servient estate was registered under the Torrens system.Emma then filed a complaint for cancellation of the right of way, on the ground that it had beenextinguished by such failure to annotate. How would you decide the controversy? (2001)

ANSWER:

The complaint for cancellation of easement of right of way must fail. The failure toannotate the easement upon the title of the servient estate is not among the grounds forextinguishing an easement under Art. 631 of the Civil Code. Under Art. 617, easements areinseparable from the estate to which they actively or passively belong. Once it attaches, it can onlybe extinguished under Art. 631, and they exist even if they are not stated or annotated as anencumbrance on the Torrens title of the servient estate. (II Tolentino 326, 1987 ed.)

ALTERNATIVE ANSWER:

Under Section 44, PD No. 1529, every registered owner receiving a certificate of titlepursuant to a decree of registration, and every subsequent innocent purchaser for value, shall holdthe same free from all encumbrances except those noted on said certificate. This rule, however,admits of exceptions.

Under Act 496, as amended by Act No. 2011, and Section 4, Act 3621, an easement if notregistered shall remain and shall be held to pass with the land until cut-off or extinguished by theregistration of the servient estate. However, this provision has been suppressed in Section 44, PDNO. 1529. In other words, the registration of the servient estate did not operate to cut-off orextinguish the right of way.

Therefore, the complaint for the cancellation of the right of wayshould be dismissed.

III A. What is easement? Distinguish easement from usufruct. B. Can there be (1) an easement over a usufruct? (2) a usufruct over an easement? (3) an easement over another easement? Explain. (1995) ANSWERS: A. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (Art. 613, NCC)Usufruct gives a right to enjoy the property of another with the obligation of preserving itsform and substance, unless the title constituting it or the law otherwise provides (Art. 562, NCC).An easement or servitude is an encumbrance imposed upon an immovable for the benefit ofanother immovable belonging to a different owner (Art. 613, NCC).

B.

(1) There can be no easement over a usufruct. Since an easement may be constituted only on acorporeal immovable property, no easement may be constituted on a usufruct which is not acorporeal right.

(2) There can be no usufruct over an easement. While a usufruct may be created over a right, suchright must have an existence of its own independent of the property. A servitude cannot be theobject of a usufruct because it has no existence independent of the property to which it attaches.(3) There can be no easement over another easement for the same reason as in (1). An easement,although it is a real right over an immovable, is not a corporeal right. There is a Roman maximwhich says that: There can be no servitude over another servitude.

ALTERNATIVE ANSWERS: A.

Easement is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner in which case it is called real or predial easement, or forthe benefit of a community or group of persons in which case it is known as a personal easement.

The distinctions between usufruct and easement are: a.Usufruct includes all uses of the property and for all purposes, including jus fruendi. Easement is limited to a specific use. b. Usufruct may be constituted on immovable or movable property. Easement may be constituted only on an immovable property. c. Easement is not extinguished by the death of the owner of the dominant estate while usufruct is extinguished by the death of the usufructuary unless a contrary intentionappears.

d. An easement contemplates two (2) estates belonging to two (2) different owners; ausufruct contemplates only one property (real or personal) whereby the usufructuaryuses and enjoys the property as well as its fruits, while another owns the naked titleduring the period of the usufruct.

e. A usufruct may be alienated separately from the property to which it attaches, while an easement cannot be alienated separately from the property to which it attaches. B. (2) There cannot be a usufruct over an easement since an easement presupposes two (2)tenements belonging to different persons and the right attaches to the tenement and not to theowner. While a usufruct gives the usufructuary a right to use, right to enjoy, right to the fruits, andright to possess, an easement gives only a limited use of the servient estate.

However, a usufruct can be constituted over a property that has in its favor an easement orone burdened

with a servitude. The usufructuary will exercise the easement during the period ofthe usufruct.

TOPIC: DONATION (1990, 1991, 1993, 1996, 1997, 1998, 1999, 2000) I

Spouses Michael and Linda donated a 3-hectare residential land to the City of Baguio on thecondition that the city government would build thereon a public park with a boxing arena, theconstruction of which shall commence within six (6) months from the date the parties ratify thedonation. The donee accepted the donation and the title to the property was transferred in itsname. Five years elapsed but the public park with the boxing arena was never started. Consideringthe failure of the donee to comply with the condition of the donation, the donor-spouses sold theproperty to Ferdinand who then sued to recover the land from the city government.

Will the suit prosper? (1991) ANSWER: Ferdinand has no right to recover the land. It is true that the donation was revocablebecause of breach of the conditions. But until and unless the donation is revoked, it remainedvalid. Hence, Spouses Michael and Linda had no right to sell the land to Ferdinand. One cannot givewhat he does not have. What the donors should have done first was to have the donation annulledor revoked. And after that was done, they could validly have disposed of the land in favor ofFerdinand.ALTERNATIVE ANSWER:

Until the contract of donation has been resolved or rescinded under Article 1191 of the CCor revoked under Article 764 of the CC, the donation stands effective and valid. Accordingly, thesale made by the donor to Ferdinand cannot be said to have conveyed title to Ferdinand, who,thereby, has no cause of action for recovery of the land acting for and in his behalf.

ANOTHER ALTERNATIVE ANSWER:

The donation is onerous. And being onerous, what applies is the law on contracts, and notthe law on donation (De Luna vs. Abrigo, 81 SCRA 150). Accordingly, the prescriptive period for thefiling of such an action would be the ordinary prescriptive period for contracts which may either besix or ten depending upon whether it is verbal or written. The filing of the case five years later iswithin the prescriptive period and, therefore, the action can prosper.

ANOTHER ALTERNATIVE ANSWER:

The law on donation lays down a special prescriptive period in the case of breach ofcondition, which is four years from non-compliance thereof (Article 764 CC). Since the action hasprescribed, the suit will not prosper.

II

On July 27, 1997, Pedro mailed in Manila a letter to his brother, Jose, a resident of IloiloCity, offering to donate a vintage sports car which the latter had long been wanting to buy from theformer. On August 5, 1997, Jose called Pedro by cellular phone to thank him for his generosity andto inform him that he was sending by mail his letter of acceptance. Pedro never received thatletter because it was never mailed. On August 14, 1997, Pedro received a telegram from Iloiloinforming him that Jose had been killed in a road accident the day before (August 13, 1997).

A. Is there a perfected donation? B. Will your answer be the same if Jose did mail his acceptance letter but it was received by Pedro in Manila days after Jose’s death? (1998) ANSWERS: A.

None. There is no perfected donation. Under Art. 748 of the CC, the donation of a movablemay be made orally or in writing. If the value of the personal property donated exceeds P5,000, thedonation and the acceptance shall be made in writing. Assuming that the value of the thingdonated, a vintage sports car, exceeds P5,000, then the donation and the acceptance must be inwriting. In this instance, the acceptance of Jose was not in writing, therefore, the donation is void.Upon the other hand, assuming that the sports car costs less than P5,000, then the donation may beoral, but still, the simultaneous delivery of the car is needed and there being none, the donationwas never perfected.

B.

Yes, the answer is the same. If Jose’s mail containing his acceptance of the donation wasreceived by Pedro after the former’s death, then the donation is still void because under Article734 of the CC, the donation is perfected the moment the donor knows of the acceptance by thedonee. The death of Jose before Pedro could receive the acceptance indicates that the donationwas never perfected. Under Article 746 acceptance must be made during the lifetime of both thedonor and the donee.