Accretion; Alluvion (2001)

For many years, the Rio Grande river deposited soil along its bank, beside the titled land
of Jose. In time, such deposit reached an area of one thousand square meters. With the
permission of Jose, Vicente cultivated the said area. Ten years later, a big flood occurred
in the river and transferred the 1000 square meters to the opposite bank, beside the
land of Agustin. The land transferred is now contested by Jose and Agustin as riparian
owners and by Vicente who claims ownership by prescription. Who should prevail,?
Why?

SUGGESTED ANSWER:

Jose should prevail. The disputed area, which is an alluvion, belongs by right of

accretion to Jose, the riparian owner (Art. 457 CC). When, as given in the problem, the
very same  area”  was  “transferred”  by  flood  waters  to  the opposite bank, it became
an avulsion and ownership thereof is retained by Jose who has two years to remove it
(Art. 459, CC). Vicente’s claim based on prescription is baseless since his possession was
by mere tolerance of Jose and, therefore, did not adversely affect Jose’s possession and
ownership (Art. 537, CC). Inasmuch as his possession is merely that of a   holder,   he  
cannot   acquire   the   disputed   area   by prescription.

Accretion; Avulsion (2003)

Andres is a riparian owner of a parcel of registered land. His land, however, has
gradually diminished in area due to the current of the river, while the registered land of
Mario on the opposite bank has gradually increased in area by 200- square meters.

(a)  Who  has  the  better  right  over  the  200-square meter area that has been added to

Mario’s registered land, Mario or Andres?

(b)  May a third person acquire said 200-square meter land by prescription?

SUGGESTED ANSWER:

a. Mario has a better right over the 200 square meters increase in area by reason of
accretion, applying Article 457 of the New Civil Code, which provides that “to the owners
of lands adjoining the banks of rivers belong the accretion which  they  gradually
received  from  the  effects  of  the current of the waters”.

Andres cannot claim that the increase in Mario’s land is his own, because such is an
accretion and not result of the sudden detachment of a known portion of his land and its
attachment to Mario’s land, a process called “avulsion”.  He  can  no  longer  claim
ownership  of  the portion of his registered land which was gradually and naturally
eroded due to the current of the river, because he had lost it by operation of law. That
portion of the land has become part of the public domain.

SUGGESTED ANSWER:
b. Yes, a third party may acquire by prescription   the 200 square meters, increase in
area, because it is not included in the Torrens Title of the riparian owner. Hence, this
does not involve the imprescriptibility conferred by Section 47, P.D. No. 1529. The fact
that the riparian land is registered does not automatically make the accretion thereto a
registered land (Grande v. CA, 115 521 (1962); Jagualing v. CA, 194 SCRA 607
(1991).

Builder; Good Faith (1992)

A owns a parcel of residential land worth P500,000.00 unknown to A, a residential

house costing P 100,000.00 is built on the entire parcel by B who claims ownership of
the land. Answer all the following questions based on the premise  that  B  is  a
builder  in  good  faith  and  A  is  a landowner in good faith.

a)    May A acquire the house built by B? If so, how?

b)   If the land increased in value to P500,000.00 by reason of  the  building of  the 

house  thereon,  what  amount should be paid by A in order to acquire the house from B?

c)   Assuming the cost of the house was P90,000.00 and not P100,000.00, may A

require B to buy the land?

d)  If B voluntarily buys the land as desired by A, under what circumstances may A

nevertheless be entitled to have the house removed?

e)  In what situation may a “forced lease” arise between A and B. and what terms
and conditions would govern the lease?

Give reasons for your answers.

SUGGESTED ANSWER:

(a) Yes, A may acquire the house build by B by paying indemnity to B. Article 448 of the
Civil Code provides that the owner of the land on which anything has been built, sown or
planted in good faith, shall have the right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided for in Articles 546 and 546 of the
Civil Code.

(b)  A should pay B the sum of P50,000. Article 548 of the Civil Code provides that
useful expenses shall be refunded to the possessor in good faith with the right of
retention, the person who has defeated him in the possession having the option of
refunding the amount of the expenses or of paying the increase in value which the thing
may have acquired by reason thereof. The increase in value amounts to P50,000.00.

(c)   Yes, A may require B to buy the land. Article 448 of the Civil Code provides that the
owner of the land on which anything has been built in good faith shall have the right to
oblige the one who built to pay the price of the land if its value is not considerably more
than that of the building,

(d)  If B agrees to buy land but fails to pay, A can have the house
removed (Depra vs. Dumlao, 136 SCRA 475).

(e)  Article 448 of the Civil Code provides that the builder cannot be obliged to buy the
land if its value is considerably more than that of the building. In such case, he shall
pay reasonable rent, if the owner of the land does not choose to appropriate the building
after proper indemnity. The parties shall agree upon the terms of the lease and in case of
disagreement, the court fix the terms thereof.

Builder; Good Faith vs. Bad Faith (1999)

(a)        Because of confusion as to the boundaries of the adjoining lots that they bought

from the same subdivision company, X constructed a house on the adjoining lot of Y in
the honest belief that it is the land that he bought from the subdivision company.   What
are the respective rights of X and Y with respect to X’s house?

(b)     Suppose X was in good faith but Y knew that X was constructing on his (Y’s) land
but simply kept quiet about it, thinking perhaps that he could get X’s house later. What
are the respective rights of the parties over X’s house in this case?

SUGGESTED ANSWER:

(a) The rights of Y, as owner of the lot, and of X, as builder of a house thereon, are
governed by Art. 448 of the Civil Code which grants to Y the right to choose between two
remedies: (a) appropriate the house by indemnifying X for its value plus whatever
necessary expenses the latter may have  incurred  for  the  preservation  of  the  land,  or 
(b) compel X to buy the land if the price of the land is not considerably more than the
value of the house. If it is, then X cannot be obliged to buy the land but he shall pay
reasonable rent, and in case of disagreement, the court shall fix the terms of the lease.

SUGGESTED ANSWER:

(b) Since the lot owner Y is deemed to be in bad faith

(Art 453), X as the party in good faith may (a) remove the house and demand
indemnification for damages suffered by him, or (b) demand payment of the value of the
house plus reparation for damages (Art 447, in relation to Art 454). Y continues  as
owner  of  the  lot  and  becomes,  under  the second option, owner of the house as well,
after he pays the sums demanded.

Builder; Good Faith vs. Bad Faith (2000)

In good faith, Pedro constructed a five-door commercial building on the land of Pablo

who was also in good faith. When Pablo discovered the construction, he opted to
appropriate the building by paying Pedro the cost thereof. However, Pedro insists that
he should be paid the current market  value  of  the  building,  which  was  much  higher
because of inflation.

1)    Who is correct Pedro or Pablo?

2)  In the meantime that Pedro is not yet paid, who is entitled to the rentals of the
building, Pedro or Pablo?

SUGGESTED ANSWER:

Pablo is correct. Under Article 448 of the New Civil Code in relation to Article 546,
the builder in good faith is entitled to a refund of the necessary and useful expenses
incurred by him, or the increase in value which the land may have acquired by reason of
the improvement, at the option of the landowner.  The  builder  is  entitled  to  a  refund
of  the expenses he incurred, and not to the market value of the improvement.

The case of  Pecson v. CA, 244 SCRA 407, is not applicable to the problem. In the

Pecson case, the builder was the owner of the land who later lost the property at a public
sale due to non-payment of  taxes. The Court ruled  that  Article  448 does not apply to
the case where the owner of the land is the builder but who later lost the land; not being
applicable, the indemnity that should be paid to the buyer must be the fair market value
of the building and not just the cost of construction thereof. The Court opined in that
case that to do otherwise would unjustly enrich the new owner of the land.

ALTERNATIVE ANSWER:

Pedro is correct. In Pecson vs. CA, it was held that Article 546 of the New Civil Code
does not specifically state how the value of useful improvements should be determined
in fixing the amount of indemnity that the owner of the land should pay to the builder in
good faith. Since the objective of the law is to adjust the rights of the parties in such
manner as “to administer complete justice to both of them in such a way as neither one
nor the other may enrich himself of that which does not belong to him”, the Court ruled
that the basis of reimbursement should be the fair market value of the building.

SUGGESTED ANSWER:

2) Pablo is entitled to the rentals of the building. As the owner of the land, Pablo is also
the owner of the building being an accession thereto. However, Pedro who is entitled to
retain the building is also entitled to retain the rentals. He,  however,  shall  apply  the
rentals  to  the  indemnity payable to him after deducting reasonable cost of repair and
maintenance.

ALTERNATIVE ANSWER:

Pablo is entitled to the rentals. Pedro became a possessor in bad faith from the time he
learned that the land belongs to Pablo. As such, he loses his right to the building,
including the fruits thereof, except the right of retention.
Builder; Good Faith vs. Bad Faith; Accession (2000)

a) 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 occupied the same and constructed thereon nipa sheds with tables and
benches which he rented out to people who want to have a picnic by the beach. When
Ernesto returned, he demanded the return of 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?

SUGGESTED ANSWER:

Ernesto  is  correct,  Demetrio  is  a  builder  in  bad  faith because he knew beforehand
that the land belonged to Ernesto, under Article 449 of the New Civil Code, one who
builds on the land of another loses what is built without right to indemnity. Ernesto
becomes the owner of the nipa sheds by right of accession. Hence, Ernesto is well within
his right in refusing to allow the removal of the nipa sheds.

Builder; Good Faith vs. Bad Faith; Presumption (2001)

Mike built a house on his lot in Pasay City. Two years later, a survey disclosed that a

portion of the building actually stood on the neighboring land of Jose, to the extent of
40 square meters. Jose claims that Mike is a builder in bad faith because he should
know the boundaries of his lot, and demands that the portion of the house which
encroached on his land should be destroyed or removed. Mike replies that he is a builder
in good faith and offers to buy the land occupied by the building instead.

1)  Is Mike a builder in good faith or bad faith? Why?

2)  Whose preference should be followed? Why?

SUGGESTED ANSWER:

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

2}  None  of  the  preferences  shall  be  followed.  The preference of Mike cannot prevail
because under Article 448 of the Civil Code, 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 house encroaching on his land be destroyed or
removed because this is not one of the options given by law to the owner of the land. The
owner may choose between the appropriation of what was built after payment of
indemnity, or to compel the builder to pay for the land if the value of the land is not
considerably more than that of the building. Otherwise, the builder shall pay rent for the
portion of the land encroached.

ALTERNATIVE ANSWER:

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

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

Chattel Mortgage vs. Pledge (1999)

Distinguish a contract of chattel mortgage from a contract of pledge.

SUGGESTED ANSWER:

In a contract of CHATTEL MORTGAGE possession belongs to the creditor, while in a

contract of PLEDGE possession belongs to the debtor.

A chattel mortgage is a formal contract while a pledge is a real contract.

A contract of chattel mortgage must be recorded in a public instrument to bind third

persons while a contract of pledge must be in a public instrument containing description
of the thing pledged and the date thereof to bind third persons.

Chattel Mortgage; Immovables (1994)

Vini constructed a building on a parcel of land he leased from  Andrea.  He  chattel 

mortgaged  the  land  to  Felicia. When he could not pay Felicia. Felicia initiated
foreclosure proceedings. Vini claimed that the building he had constructed on the leased
land cannot be validly foreclosed because the building was, by law, an immovable.

Is Vini correct?

SUGGESTED ANSWERS:

a)  The Chattel Mortgage is void and cannot be foreclosed because the building is an
immovable and cannot be an object of a chattel mortgage.

b)   It depends. If the building was intended and is built of light materials, the chattel
mortgage may be considered as valid as between the parties and it may be considered in
respect  to  them  as  movable  property,  since  it  can  be removed from one place to
another. But if the building is of strong material and is not capable of being removed or
transferred without being destroyed, the chattel mortgage is void and cannot be
foreclosed.

c)     If it was the land which Vini chattel mortgaged, such mortgage would be void, or at
least unenforceable, since he was not the owner of the land.

If what was mortgaged as a chattel is the building, the chattel mortgage is valid as
between the parties only, on grounds of estoppel which would preclude the mortgagor
from assailing the contract on the ground that its subject- matter is an immovable.
Therefore Vini’s defense is untenable, and Felicia can foreclose the mortgage over the
building, observing, however, the procedure prescribed for the execution of sale of a
judgment debtor’s immovable under Rule 39, Rules of Court, specifically, that the notice
of  auction  sale  should  be  published  in  a  newspaper  of general circulation.

d)  The problem that Vini mortgaged the land by way of a chattel mortgage is
untenable.   Land can only be the subject matter of a real estate mortgage and only an
absolute owner of real property may mortgage a parcel of land. (Article 2085 (2) Civil
Code).  Hence, there can be no foreclosure.

But on the assumption that what was mortgaged by way of chattel mortgage was the
building on leased land, then the parties are treating the building as chattel. A building
that is not merely superimposed on the ground is an immovable property and a chattel
mortgage on said building is legally void but the parties cannot be allowed to disavow
their contract on account of estoppel by deed. However, if third parties are involved
such chattel mortgage is void and has no effect.

Chattel Mortgage; Immovables (2003)

X constructed a house on a lot which he was leasing from Y. Later, X executed a chattel

mortgage over said house in favor of Z as security for a loan  obtained from the latter.
Still later, X acquired ownership of the land where his house was constructed, after
which he mortgaged both house and land in favor of a bank, which mortgage was
annotated on the Torrens Certificate of Title. When X failed to pay his loan to the bank,
the latter, being the highest bidder at the foreclosure sale, foreclosed the mortgage and
acquired X’s house and lot. Learning of the proceedings conducted by the bank, Z is now
demanding that the bank reconvey to him X’s house or pay X’s loan to him plus
interests. Is Z’s demand against the bank valid and sustainable? Why?

 SUGGESTED ANSWER:

No, Z’s demand is not valid. A building is immovable or real property whether it is
erected by the owner of the land, by a usufructuary, or by a lessee. It may be treated as a
movable by the parties to chattel mortgage but such is binding only between them and
not on third parties (Evangelista v. Alto Surety Col,
Inc. 103 Phil. 401 [1958]). In this case, since the bank is not a party to the chattel
mortgage, it is not bound by it, as far as the Bank is concerned, the chattel mortgage,
does not exist. Moreover, the chattel mortgage does not exist. Moreover, the chattel
mortgage is void because it was not registered. Assuming that it is valid, it does not bind
the Bank because it was not annotated on the title of the land mortgaged to the bank. Z
cannot demand that the Bank pay him the loan Z extended to X, because the Bank was
not privy to such loan transaction.

ANOTHER SUGGESTED ANSWER:

No, Z’s demand against the bank is not valid. His demand that the bank reconvey to him
X’s house presupposes that he  has  a  real  right  over  the  house.  All  that  Z  has  is  a
personal right against X for damages for breach of the contract of loan.

The treatment of a house, even if built on rented land, as movable property is void
insofar as third persons, such as the  bank,  are  concerned.  On  the  other  hand,  the
Bank already had a real right over the house and lot when the mortgage was annotated
at the back of the Torrens title. The bank later became the owner in the foreclosure sale.
Z cannot ask the bank to pay for X’s loan plus interest. There is no privity of contract
between Z and the bank.

ALTERNATIVE ANSWER:

The  answer  hinges  on  whether  or  not  the  bank  is  an innocent mortgagee in good
faith or a mortgagee in bad faith. In the former case, Z’s demand is not valid. In the
latter case, Z’s demand against the bank is valid and sustainable.

Under the Torrens system of land registration, every person dealing with registered land
may rely on the correctness of the certificate of title and the law will not in any way
oblige to him to look behind or beyond the certificate in order to determine the
condition of the title. He is not bound by anything not annotated or reflected in the
certificate. If he proceeds to buy the land or accept it as a collateral relying on the
certificate, he is considered a buyer or a mortgagee in good faith. On this ground, the
Bank acquires a clean title to the land and the house.

However,  a  bank  is  not  an  ordinary  mortgagee.  Unlike private individuals, a bank is
expected to exercise greater care and prudence in its dealings. The ascertainment of the
condition of a property offered as collateral for a loan must be a standard and
indispensable part of its operation. The bank should have conducted further inquiry
regarding the house standing on the land considering that it was already standing there
before X acquired the title to the land. The bank cannot be considered as a mortgagee in
good faith. On this ground, Z’s demand against the Bank is valid and sustainable.

Chattel Mortgage; Possession (1993)

A,  about  to  leave  the  country  on  a  foreign  assignment, entrusted to B his brand new

car and its certificate of registration. Falsifying A’s signature. B sold A’s car to C for
P200,000.00. C then registered the car in his name. To complete  the  needed  amount,
C  borrowed  P100.000.00 from the savings and loan association in his office,
constituting a chattel mortgage on the car. For failure of C to pay the amount owed, the
savings and loan association filed in the RTC a complaint for collection with application
for issuance of a writ of replevin to obtain possession of the vehicle so that the chattel
mortgage could be foreclosed. The RTC issued the writ of replevin. The car was then
seized from C and sold by the sheriff at public auction at which the savings and loan
association was the lone bidder. Accordingly, the car was sold to it. A few days later, A
arrived from his foreign assignment. Learning of what happened to his car, A sought to
recover possession and ownership of it from the savings and loan association.

Can   A   recover   his   car   from   the   savings   and   loan association? Explain your
answer.

SUGGESTED ANSWER:

Under the prevailing rulings of the Supreme Court, A can recover the car from the
Savings and Loan Association provided he pays the price at which the Association
bought the car at a public auction. Under that doctrine, there has been an unlawful
deprivation by B of A of his car and, therefore, A can recover it from any person in
possession thereof. But since it was bought at a public auction in good faith  by  the
Savings  and  Loan  Association,  he  must reimburse the Association at the price for
which the car was bought.

ALTERNATIVE ANSWER:

Yes, A can recover his car from the Savings and Loan Association. In a Chattel Mortgage,
the mortgagor must be the absolute owner of the thing mortgaged. Furthermore, the
person constituting the mortgage must have the free disposal of the property, and in the
absence thereof, must be legally authorized for the purpose. In the case at bar, these
essential requisites did not apply to the mortgagor B, hence the Chattel Mortgage was
not valid.

Chattel Mortgage; Preference of Creditors (1995)

Lawrence, a retired air force captain, decided to go into the air transport business. He
purchased an aircraft in cash except for an outstanding balance of P500,000.00. He
incurred an indebtedness of P300,000.00 for repairs with an aircraft repair company.
He also borrowed P1 Million from a bank for additional capital and constituted a chattel
mortgage on the aircraft to secure the loan.

While on a test flight the aircraft crashed causing physical injuries to a third party who
was awarded damages of P200,000.00.

Lawrence’s insurance claim for damage to the aircraft was denied thus leaving him
nothing else but the aircraft which was then valued only at P1 Million. Lawrence was
declared insolvent.
Assuming that the aircraft was sold for Pl Million, give the order of preference of the
creditors of Lawrence and distribute the amount of P1 Million.

SUGGESTED ANSWER:

Assuming that the aircraft was sold for P1 Million, there is no order of preference. The
P1 Million will all go to the bank  as  a  chattel  mortgagee  because  a  chattel  mortgage
under Art. 2241 (4) NCC defeats Art. 2244 (12) and (14}. Art. 2241 (3) and (5) are not
applicable because the aircraft is no longer in the possession of the creditor.

Easement vs. Usufruct (1995)

1.   What is easement? Distinguish easement from usufruct.

2.   Can there be (a) an easement over a usufruct? (b) a

usufruct over an easement? (c) an easement over another easement? Explain.

SUGGESTED ANSWER:

1.  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 its form and substance, unless the title constituting it or the law otherwise
provides (Art. 562, NCC).

ALTERNATIVE ANSWER:

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 for the 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
intention appears.
d)    An easement contemplates two (2) estates belonging to two (2) different owners; a
usufruct contemplates only one  property  (real  or  personal)  whereby  the usufructuary
uses and enjoys the property as well as its fruits, while another owns the naked title
during 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.

NOTE: It is recommended by the Committee that any two (2) distinction
sshould be given full credit.

SUGGESTED ANSWER:

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

(b) There can be no usufruct over an easement. While a usufruct maybe created over a

right, such right must have an existence  of  its  own  independent  of  the  property.  A
servitude cannot be the object of a usufruct because it has no existence independent of
the property to which It attaches.

ALTERNATIVE ANSWERS:

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 the owner. While a usufruct gives the usufructuary a right to use, right to enjoy, right
to the fruits, and right 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 or one burdened with servitude. The usufructuary will exercise the easement
during the period of usufruct.

(c) There can be no easement over another easement for the same reason as in (a). An
easement, although it is a real right over an immovable, is not a corporeal right. There is
a Roman maxim which says that: There can be no servitude over another servitude.

Easement;  Effects; Discontinuous  Easements;  Permissive Use (2005)

Don was the owner of an agricultural land with no access to a public road. He had been

passing through the land of Ernie with the latter’s acquiescence for over 20 years.
Subsequently,   Don   subdivided   his   property   into   20 residential lots and sold them
to different persons. Ernie blocked the pathway and refused to let the buyers pass
through his land.

a)  Did Don acquire an easement of  right of  way? Explain. 
ALTERNATIVE ANSWER:

No, Don did not acquire an easement of right of way. An easement of right of way is
discontinuous in nature — it is exercised only if a man passes over somebody’s land.
Under Article 622 of the Civil Code, discontinuous easements, whether apparent or not,
may only be acquired by virtue of a title. The Supreme Court, in Abellana,  Sr. v.
Court of Appeals (G.R. N0. 97039, April 24, 1992), ruled that an easement of
right of way being discontinuous in nature is not acquirable by prescription.

Further, possession of the easement by Don is only permissive, tolerated or with the
acquiescence of Ernie. It is settled in the case
of Cuaycong v. Benedicto (G.R. No. 9989, March 13, 1918)that a permissive use
of a road over the land of another, no matter how long continued, will not create an
easement of way by prescription.

ALTERNATIVE ANSWER:

Yes,  Don  acquired  an  easement  of  right  of  way.  An easement that is continuous and
apparent can be acquired by prescription and title. According to Professor Tolentino, an
easement of right of way may have a continuous nature if there  is  a  degree  of
regularity  to  indicate  continuity  of possession and that if coupled with an apparent
sign, such easement of way may be acquired by prescription.

ALTERNATIVE ANSWER:

Yes, Ernie could close the pathway on his land. Don has not  acquired  an  easement  of 
right  of  way  either  by agreement or by judicial grant. Neither did the buyers. Thus,
establishment of a road or unlawful use of the land of Ernie would constitute an
invasion of possessory rights of the owner, which under Article 429 of the Civil Code
may be repelled or prevented. Ernie has the right to exclude any person from the
enjoyment and disposal of the land. This is an attribute of ownership that Ernie enjoys.

ALTERNATIVE ANSWER:

Yes, Ernie may close the pathway, subject however, to the rights of the lot buyers. Since
there is no access to the public road, this results in the creation of a legal easement. The
lot buyers have the right to demand that Ernie grant them a right of way. In turn, they
have the obligation to pay the  value  of  the  portion  used  as  a  right  of  way,  plus
damages.

c) What are the rights of the lot buyers, if any? Explain.

SUGGESTED ANSWER:

Prior  to  the  grant  of  an  easement,  the  buyers  of  the dominant estate have no other
right than to compel grant of easement of right of way.
Since the properties of the buyers are surrounded by other immovables and has no
adequate outlet to a public highway and  the  isolation  is  not  due  to  their  acts,  buyers
may demand an easement of a right of way provided proper indemnity is paid and the
right of way demanded is the shortest and least prejudicial to
Ernie. (Villanueva v. Velasco, G.R. No. 130845, November 27,2000).

Easement; Nuisance; Abatement (2002)

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. Although Hernando 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. This has increased the acidity of the soil in the
plantation, causing the trees to wither and die. Lauro sues for damages caused to his
plantation. Hernando invokes his right to the benefit of a natural easement in favor of
his higher estate, which imposes upon the lower estate of Lauro the obligation to receive
the  waters descending  from the higher estate.  Is Hernando correct?

SUGGESTED ANSWER:

Hernando is wrong. It is true that Lauro’s land is burdened with the natural easement to
accept or receive the water which naturally and without interruption of man descends
from a higher estate to a lower estate. However, Hernando has constructed a waste
disposal lagoon for his piggery and it is this waste water that flows downward to Lauro’s
land. Hernando has, thus, interrupted the flow of water and has created and is
maintaining a nuisance. Under Act. 697 NCC, abatement of a nuisance does not
preclude recovery of damages by Lauro even for the past existence of a nuisance.

The claim for damages may also be premised in Art. 2191 (4) NCC.

ANOTHER 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.

Easements; Classification (1998)

Distinguish between:

1.     Continuous and discontinuous easements;

2.     Apparent and non-apparent easements; and

3.     Positive and negative easements.

SUGGESTED ANSWER:

1.    CONTINUOUS EASEMENTS are those the use of which is or may be incessant,

without the intervention of any act of man, while DISCONTINUOUS EASEMENTS are
those which are used at intervals and depend upon the acts of man. (Art. 615, Civil
Code)

SUGGESTED ANSWER:

2.     APPARENT EASEMENTS are those which are made known and are continually
kept in view by external signs that reveal the use and enjoyment of the same, while
NON- APPARENT EASEMENTS are those which show no external indication of their
existence. (Art. 615, Civil Code)

SUGGESTED ANSWER:

3.   POSITIVE EASEMENTS are those which impose upon the owner of the servient
estate the obligation of allowing something to be done or of doing it himself, while
NEGATIVE EASEMENTS are those which prohibit the owner of the servient estate from
doing something which he could lawfully do if the easement did not exist. (Art. 615. Civil
Code)

Easements; Right of Way (1993)

Tomas Encarnacion’s 3,000 square meter parcel of land, where he has a plant nursery,
is located just behind Aniceta Magsino’s  two hectare  parcel land.  To  enable  Tomas  to
have access to the highway, Aniceta agreed to grant him a road right of way a meter wide
through which he could pass. Through the years Tomas’ business flourished which
enabled him to buy another portion which enlarged the area of his plant nursery. But he
was still landlocked. He could not bring in and out of his plant nursery a jeep or delivery
panel much less a truck that he needed to transport his seedlings. He now asked Aniceta
to grant him a wider portion of her property, the price of which he was willing to pay, to
enable him to construct a road to have access to his plant nursery. Aniceta refused
claiming that she had already allowed him a previous road right of way.

Is Tomas entitled to the easement he now demands from Aniceta?

SUGGESTED ANSWER:

Art. 651 of the Civil Code provides that the width of the easement must be sufficient to
meet the needs of the dominant estate, and may accordingly change from time to time.
It is the need of the dominant estate which determines the width of the passage. These
needs may vary from time to time. As Tomas’ business grows, the need for use of
modern conveyances requires widening of the easement.
ALTERNATIVE ANSWER:

The  facts show that the need for a wider right of way arose from the increased
production owing to the acquisition by Tomas of an additional area. Under Art. 626 of
the Civil Code, the easement can be used only for the immovable originally
contemplated. Hence, the increase in width is justified and should have been granted.

Easements; Right of Way (2000)

The coconut farm of Federico is surrounded by the lands of Romulo. Federico seeks a
right of way through a portion of the land of Romulo to bring his coconut products to
the market. He has chosen a point where he will pass through a housing project of
Romulo. The latter wants him to pass another way which is one kilometer longer. Who
should prevail?

SUGGESTED ANSWER:

Romulo will prevail. Under Article 650 of the New Civil Code, the easement of right of
way shall be established at the point least prejudicial to the servient estate and where
the distance from the dominant estate to a public highway is the shortest. In case of
conflict, the criterion of least prejudics prevails over the criterion of shortest distance.
Since the route chosen by Federico will prejudice the housing project of Romulo,
Romulo has the right to demand that Federico pass another way even though it will be
longer.

Easements; Right of Way; Inseparability (2001)

Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same from
Felisa, the original owner. Thereafter, Emma discovered that Felisa had granted a right
of way over the land in favor of the land of Georgina, which had no outlet to a public
highway, but the easement 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 been extinguished by such failure to annotate. How
would you decide the controversy?

SUGGESTED ANSWER:

The complaint for cancellation of easement of right of way must fail. The failure to
annotate the easement upon the title of the servient estate is not among the grounds for
extinguishing an easement under Art. 631 of the Civil Code. Under  Article  617,
easements  are  inseparable  from  the estate to which they actively or passively belong.
Once it attaches, it can only be extinguished under Art. 631, and they exist even if they
are not stated or annotated as an encumbrance 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 title
pursuant to a decree of registration, and every subsequent innocent purchaser for value,
shall  hold  the  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 not
registered shall remain and shall  be  held  to  pass  with  the  land  until  cutoff
or extinguished by the registration of the servient estate. However, this provision has
been suppressed in Section 44, PD  No.  1529.  In  other  words,  the  registration  of  the
servient estate did not operate to cut-off or extinguish the right of way. Therefore, the
complaint for the cancellation of the right of way should be dismissed.

Easements; Right of Way; Requisites (1996)

David is the owner of the subdivision in Sta. Rosa, Laguna, without an access to the

highway. When he applied for a license to establish the subdivision, David represented
that he will purchase a rice field located between his land and the highway, and develop
it into an access road. But. when the license was already granted, he did not bother to
buy the rice  field,  which  remains  unutilized  until  the  present. Instead, he chose to
connect his subdivision with the neighboring subdivision of Nestor, which has an access
to the highway. Nestor allowed him to do this, pending negotiations on the
compensation to be paid. When they failed to arrive at an agreement, Nestor built a wall
across the road connecting with David’s subdivision. David filed a complaint in court,
for the establishment of an easement of right of way through the subdivision of Nestor
which he claims to be the most adequate and practical outlet to the highway.

1) What are the requisites for the establishment of a compulsory easement of a right of
way?

SUGGESTED ANSWER:

Art, 649, NCC. The owner, or any person who by virtue of a real right may cultivate or
use any immovable which is surrounded   by   other   immovables   pertaining   to   other
persons and without adequate outlet to a public highway, is entitled to demand a right of
way through the neighboring estates, after payment of the property indemnity.

Should this easement be established in such a manner that its use may be continuous for
all the needs of the dominant estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the amount of the damage caused to
the servient estate.

In case the right of way is limited to the necessary passage for the cultivation of the
estate surrounded by others and for the gathering of its crops through the servient estate
without a permanent way, the indemnity shall consist in the payment of the damage
cause by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the
proprietor’s own acts (564a).

The easement of right of way shall be established at the point least prejudicial to the
servient estate, and insofar as consistent  with  this  rule,  where  the  distance  from  the
dominant estate to a public highway may be the shortest
(Art. 650, NCC: Vda. de Baltazar v. CA, 245 SCRA 333)

ALTERNATIVE ANSWER:

The requisites for a compulsory easement of right of way are: (a) the dominant estate is
surrounded by other immovables and is without an adequate outlet to a public street or
highway; (b) proper indemnity must be paid; (c) the isolation must not be due to the
acts of the owner of the dominant estate; and (d) the right of way claimed is at a point
least prejudicial to the servient estate and, insofar as is

consistent with this rule, where the distance to the street or highway is shortest.

2) Is David entitled to a right of way in this case? Why or why not?

SUGGESTED ANSWER:

No, David is not entitled to the right of way being claimed. The isolation of his
subdivision was due to his own act or omission because he did not develop into an
access road the rice field which he was supposed to purchase according to his own
representation when he applied for a license to establish the subdivision (Florous
v. Llenado, 244 SCRA 713).

Ejectment Suit vs. Cancellation of Title (2005)

In an ejectment case filed by Don against Cesar, can the latter ask for the cancellation of

Don’s title considering that he (Cesar) is the rightful owner of the lot? Explain.

SUGGESTED ANSWER:

Cesar cannot ask for the cancellation of Don’s title even if he  is  the  rightful  owner  of 
the  lot.  In  an  action  for ejectment, the only issue involved is one of possession de
facto, the purpose of which is merely to protect the owner from any physical
encroachment from without. The title of the land or its ownership is not involved, for if a
person is in actual possession thereof, he is entitled to be maintained and respected in it
even against the owner himself. (Garcia v. Anas, G.R. No. L-20617, May 31,1965)

Since the case filed by Don against Cesar is an ejectment case, the latter cannot ask for
the cancellation of Don’s title. He  has  to  file  the  proper  action  where  the  issue  of
ownership over the property can be raised.

Ejectment Suit; Commodatum (2006)

Alberto  and  Janine  migrated  to  the  United  States  of America, leaving behind their 4
children, one of whom is Manny. They own a duplex apartment and allowed Manny to 
live  in  one  of  the  units.  While  in  the  United  States, Alberto died. His widow and all
his children executed an Extrajudicial Settlement of Alberto’s estate wherein the 2- door
apartment was assigned by all the children to their mother, Janine. Subsequently, she
sold the property to George. The latter required Manny to sign a prepared Lease
Contract so that he and his family could continue occupying the unit. Manny refused to
sign the contract alleging that his parents allowed him and his family to continue
occupying the premises.

If you were George’s counsel, what legal steps will you take? Explain. 

SUGGESTED ANSWER:

If  I  were  George’s  counsel,  I  would  first  demand  that Manny vacate the apartment.
If Manny refuses, I will file an ejectment suit. When Manny was allowed by his parents
to occupy the premises, without compensation, the contract of commodatum was
created. Upon the death of the father, the contract was extinguished as it is a purely
personal contract. As the new owner of the apartment George is entitled to exercise his
right of possession over the same.

Extra–Judicial Partition; Fraud (1990)

X was the owner of a 10,000 square meter property. X married Y and out of their union.

A, B and C were born. After  the  death  of  Y,  X  married  Z  and  they  begot  as
children, D, E and F. After the death of X, the children of the first and second marriages
executed an extrajudicial partition of the aforestated property on May 1, 1970. D, E and
F were given a one thousand square meter portion of the property. They were minors at
the time of the execution of the document. D was 17 years old, E was 14 and F was  12;
and they were made to believe by A, B and C that unless they sign the document they
will not get any share. Z was not present then. In January 1974, D, E and F filed an
action in court to nullify the suit alleging they discovered the fraud only in 1973.

(a) Can the minority of D, E and F be a basis to nullify the partition? Explain your

answer.

(b) How about fraud? Explain your answer.

SUGGESTED ANSWER:

(a) Yes, minority can be a basis to nullify the partition because D, E and F were not
properly represented by their parents or guardians at the time they contracted the extra-
judicial partition. (Articles 1327. 1391, Civil Code).

(b) In the case of fraud, when through insidious words or machinations of one party the
other is induced to enter into the contract without which he would not have agreed to,
the action still prosper because under Art, 1391 of the Civil Code, in case of fraud, the
action for annulment may be brought within four years from the discovery of the fraud.

Hidden Treasure (1995)

Tim came into possession of an old map showing where a purported cache of gold

bullion was hidden. Without any authority from the government Tim conducted a
relentless search and finally found the treasure buried in a new river bed formerly part
of a parcel of land owned by spouses Tirso and Tessie. The old river which used to cut
through the land of spouses Ursula and Urbito changed its course through natural
causes.

To whom shall the treasure belong? Explain.

SUGGESTED ANSWER:

The treasure was found in a property of public dominion, the new river bed.   Since Tim
did not have authority from the government and, therefore, was a trespasser, he is not
entitled to the one-half share allotted to a finder of hidden treasure. All of it will go to
the State.   In addition, under Art. 438 of the NCC in order that the finder be entitled to
the 1/2 share, the treasure must be found by chance, that is by sheer luck. In this case,
since Tim found the treasure not by chance but because he relentlessly searched for it,
he is not entitled to any share in the hidden treasure.

ALTERNATIVE ANSWER:

The  law  grants  a  one-half  share  to  a  finder  of  hidden treasure provided he is not a
trespasser and the finding is by chance. It is submitted that Tim is not a trespasser
despite his not getting authority from the government, because the new river bed where
he found the treasure is property for public  use  (Art.  420  NCC),  to  which  the  public
has legitimate access. The question, therefore, boils down to whether or not the finding
was by chance in view of the fact that Tim “conducted a relentless search” before finding
the treasure. The strict or literal view holds that deliberate or intentional  search
precludes  entitlement  to  the  one-half share allotted by law to the finder since the
phrase “by chance” means “by accident”, meaning an unexpected discovery. The liberal
view, however, would sustain Tim’s right  to  the  allocated  share  interpreting  the
phrase  in question as meaning “by a stroke of good fortune”, which does not rule out
deliberate or intentional search. It is submitted that the liberal view should prevail since
in practical  reality,  hidden  treasure  is  hardly  ever  found without conscious effort to
find it, and the strict view would tend to render the codal provision in question illusory.

Hidden Treasures (1997)

Marcelino, a treasure hunter as just a hobby, has found a map which appears to indicate

the location of hidden treasure. He has an idea of the land where the treasure might
possibly be found. Upon inquiry, Marcelino learns that  the  owner  of  the  land, 
Leopoldo,  is  a  permanent resident of Canada, Nobody, however, could give him
 Leopoldo’s exact address. Ultimately, anyway, he enters the land and conducts a search.
He succeeds.

Leopoldo learning of Marcelino’s “find”, seeks to recover the treasure from Marcelino
but the latter is not willing to part with it. Failing to reach an agreement, Leopoldo sues
Marcelino for the recovery of the property. Marcelino contests the action.

How would you decide the case?

SUGGESTED ANSWER:

I would decide in favor of Marcelino since he is considered a finder by chance of the

hidden treasure, hence, he is entitled to one-half (1/2) of the hidden treasure. While
Marcelino  may  have  had  the  intention  to  look  for  the hidden treasure, still he is a
finder by chance since it is enough that he tried to look for it. By chance in the law does
not mean sheer luck such that the finder should have no intention at all to look for the
treasure. By chance means good luck, implying that one who intentionally looks for the
treasure is embraced in the provision. The reason is that it is extremely difficult to find
hidden treasure without looking for it deliberately.

Marcelino is not a trespasser since there is no prohibition for him to enter the premises,

hence, he is entitled to half of the treasure.

ALTERNATIVE ANSWERS:

1.  Marcelino did not find the treasure by chance because he had a map, he knew the
location of the hidden treasure and he intentionally looked for the treasure, hence, he is
not entitled to any part of the treasure.

2.   Marcelino appears to be a trespasser and although there may be a question of

whether he found it by chance or not, as he has found the hidden treasure by means of a
treasure map, he will not be entitled to a finder’s share. The hidden treasure shall belong
to the owner.

3.  The main rule is that hidden treasure belongs to the owner of the land, building or
other property on which it is found. If it is found by chance by a third person and he is
not a trespasser, he is entitled to one-half (1/2).   If he is a trespasser, he loses
everything.

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Mortgage; Pactum Commissorium (1999)

(a)     X borrowed money from Y and gave a piece of land as  security  by  way  of 
mortgage.  It  was  expressly agreed between the parties in the mortgage contract that
upon nonpayment of the debt on time by X, the mortgaged land would already belong to
Y. If X defaulted in paying, would Y now become the owner of the mortgaged land?
Why?

(b)    Suppose in the preceding question, the agreement between X and Y was that if X
failed to pay the mortgage debt on time, the debt shall be paid with the land mortgaged
by X to Y. Would your answer be the same as in the preceding question? Explain.

SUGGESTED ANSWER:

(a)     No, Y would not become the owner of the land. The stipulation is in the nature of
pactum commissorium which is prohibited by law.   The property should be sold at
public auction   and   the   proceeds   thereof   applied   to   the indebtedness. Any excess
shall be given to the mortgagor.

SUGGESTED ANSWER:

(d) No, the answer would not be the same. This is a valid stipulation and does not
constitute pactum commissorium. In pactum commissorium, the acquisition is
automatic without need of any further action. In the instant problem another act is
required to be performed, namely, the conveyance of the property as payment (dacion
en pago).

Mortgage; Pactum Commissorium (2001)

To secure a loan obtained from a rural bank, Purita assigned her leasehold rights over a

stall in the public market in favor of the bank. The deed of assignment provides that in
case of default in the payment of the loan, the bank shall have the right to sell Purita’s
rights over the market stall as her attorney-in-fact, and to apply the proceeds to the
payment of the loan.

1)    Was the assignment of leasehold rights a mortgage or a cession? Why?

2)  Assuming the assignment to be a mortgage, does the provision giving the bank the
power to sell Purita’s rights constitute pactum commissorium or not? Why?

SUGGESTED ANSWER:

1)      The assignment was a mortgage, not a cession, of the leasehold   rights.   A  
cession   would   have   transferred ownership to the bank. However, the grant of
authority to the bank to sell the leasehold rights in case of default is proof that no such
ownership was transferred and that a mere encumbrance was constituted. There would
have been no need for such authority had there been a cession.

SUGGESTED ANSWER:
2) No, the clause in question is not a pactum commissorium.
It is pactum commissorium when default in the payment of the loan automatically vests
ownership of the encumbered property in the bank. In the problem given, the bank does
not automatically become owner of the property upon default of the mortgagor.   The
bank has to sell the property and apply the proceeds to the indebtedness.

Mortgage;  Right of Redemption  vs.Equity of Redemption (1999)

Are the right of redemption and the equity of redemption given by law to a mortgagor
the same?   Explain.

SUGGESTED ANSWER:

The equity  of redemption  is different from  the  right  of redemption. EQUITY OF

REDEMPTION is the right of the mortgagor after judgment in a judicial foreclosure to
redeem the property by paying to the court the amount of the judgment debt before the
sale or confirmation of the sale. On the other hand, RIGHT OF REDEMPTION is the
right of the mortgagor to redeem the property sold at an extra-judicial foreclosure by
paying to the buyer in the foreclosure sale the amount paid by the buyer within one year
from such sale.

Nuisance; Family House; Not Nuisance per se (2006)

A drug lord and his family reside in a small bungalow where they sell shabu and other
prohibited drugs. When the police found the illegal trade, they immediately demolished
the house because according to them, it was a nuisance per se that should be abated.
Can this demolition be sustained? Explain.

SUGGESTED ANSWER:

No, the demolition cannot be sustained. The house is not a nuisance per se or at law as it
is not an act, occupation, or structure which is a nuisance at all times and under any
circumstances, regardless of location or surroundings. A nuisance per se is a nuisance in
and of itself, without regard to circumstances  (Tolentino, p. 695, citing Wheeler v.
River Falls Power Co., 215 Ala. 655,111 So. 907).

Nuisance; Public Nuisance vs.Private Nuisance (2005)

State  with  reason  whether  each  of  the  following  is  a nuisance, and if so, give its

classification, whether public or private: Article 694 of the Civil Code defines nuisance
as any act, omission, establishment, business, condition or property, or anything else
which injures or endangers the health or safety of others, or annoys or offends the
senses, or shocks, defies or disregards decency or morality or obstructs or interferes
with the free passage of any public highway or street or any body of water or hinders or
impairs the use of property.
It is a public nuisance if it affects a community or neighborhood or any considerable
number of persons. It is a direct encroachment upon public rights or property which
results injuriously to the public. It is a private nuisance, if it affects only a person or
small number of persons. It violates only private rights.

a)    A squatter’s hut

If constructed on public streets or riverbeds, it is a public nuisance because it obstructs

the free use by the public of said places. (City of Manila v. Garcia, G.R. No. L-
26053, February 21, 1967). If constructed on private land, it is a private nuisance
because it hinders or impairs the use of the property by the owner.

b)    A swimming pool

This  is  not  a  nuisance  in  the  absence  of  any  unusual condition or artificial feature

other than the mere water. In Hidalgo Enterprises v. Balandan (G.R. No. L-
3422, June 13, 1952), the Supreme Court ruled that a swimming pool is but a
duplication of nature — thus, could not be considered as a nuisance.

c)    A house of prostitution

Irrespective   of   its   location   and   how   its   business   is conducted, it is a nuisance
since it defies, shocks and disregards decency and morality. It is a public nuisance
because of its injury to the public.

d)   A noisy o rdangerous factory in a privateland

If the noise injuriously affects the health and comfort of ordinary people in the vicinity

to an unreasonable extent, it is  a nuisance. It  is  a public nuisance  because  there  is  a
tendency to annoy the public. (Velasco v. Manila Electric Co., G.R. No. L-
18390, August 6,1971)

e)    Uncollectedg arbage

It  will  become  a  nuisance  if  it  substantially  impairs  the comfort and enjoyment of

the adjacent occupants. The annoyance and the smell must be substantial as to interfere
sensibly with the use and enjoyment by persons of ordinary sensibilities. It is a public
nuisance because of its injury to the public.

Ownership; Co-Ownership (1992)

A, B and C are the co-owners in equal shares of a residential house and lot. During their 
co-ownership, the following acts were respectively done by the co-owners:

1)    A undertook the repair of the foundation of the house, then  tilting  to one  side, to

prevent  the  house  from collapsing.
2)    B and C mortgaged the house and lot to secure a loan.

3)    B engaged a contractor to build a concrete fence all around the lot.

4)    C built a beautiful grotto in the garden.

5)    A and C sold the land to X for a very good price.

(a)   Is A’s sole decision to repair the foundation of the house binding on B and C?   May
A require B and C to contribute their 2/3 share of the expense? Reasons.

(b)  What is the legal effect of the mortgage contract executed by B and C? Reasons.

(c)   Is B’s sole decision to build the fence binding upon A and C? May B require A and C
to contribute their 2/ 3 share of the expense? Reasons.

(d)  Is C’s sole decision to build the grotto binding upon A and B? May C require A and B
to contribute their 2/ 3 share of the expense? Reasons.

(e)   What are the legal effects of the contract of sale executed by A. C and X? Reasons.

SUGGESTED ANSWER:

(a)    Yes.    A’s  sole  decision  to  repair  the  foundation  is binding upon B and C. B and
C must contribute 2/3 of the expense. Each co-owner has the right to compel the other
co-owners to contribute to the expense of preservation of the thing (the house) owned in
common in proportion to their respective interests (Arts. 485 and 488, Civil Code).

SUGGESTED ANSWER:

(b)  The mortgage shall not bind the 1/3 right and interest of A and shall be deemed to
cover only the rights and interests of B and C in the house and lot. The mortgage shall be
limited to the portion (2/3) which may be allotted to B and C in the partition (Art. 493,
Civil Code).

SUGGESTED ANSWER:

(c)     B’s sole decision to build the concrete fence is not binding upon A and C. Expenses
to improve the thing owned in common must be decided upon by a majority of the co-
owners who represent the controlling interest (Arts. 489 and 492. Civil Code).

SUGGESTED ANSWER:

(d)  C’s sole decision to build the grotto is not binding upon A and B who cannot be
required to contribute to the expenses for the embellishment of the thing owned in
common if not decided upon by the majority of the co- owners who represent the
controlling interest (Arts. 489 and 492, Civil Code).
SUGGESTED ANSWER:

(e)  The sale to X shall not bind the 1/3 share of B and shall be deemed to cover only the
2/3 share of A and C in the land (Art. 493, Civil Code). B shall have the right to redeem
the 2/3 share sold to X by A and C since X is a third person (Art. 1620, Civil Code).

Ownership; Co-Ownership; Prescription (2000)

In 1955, Ramon and his sister Rosario inherited a parcel of land in Albay from their

parents. Since Rosario was gainfully employed in Manila, she left Ramon alone to
possess and cultivate  the  land.  However,  Ramon  never  shared  the harvest with
Rosario and was even able to sell one-half of the land in 1985 by claiming to be the sole
heir of his parents. Having reached retirement age in 1990 Rosario returned to the
province and upon learning what had transpired, demanded that the remaining half of
the land be given to her as her share. Ramon opposed, asserting that he has already
acquired ownership of the land by prescription, and that Rosario is barred by laches
from demanding partition and reconveyance. Decide the conflicting claims.

SUGGESTED ANSWER:

Ramon is wrong on both counts: prescription and laches. His possession as co-owner
did not give rise to acquisitive prescription. Possession by a co-owner is deemed not
adverse to the other co-owners but is, on the contrary, deemed beneficial to
them (Pongon v. GA, 166 SCRA 375). Ramon’s possession will become adverse only
when he has repudiated  the  co-ownership  and  such  repudiation  was made known to
Rosario. Assuming that the sale in 1985 where Ramon claimed he was the sole heir of
his parents amounted to a repudiation of the co-ownership, the prescriptive period
began to run only from that time. Not more than 30 years having lapsed since then, the
claim of Rosario has not as yet prescribed. The claim of laches is not also meritorious.
Until the repudiation of the co-ownership was made known to the other co-owners, no
right has been violated for the said co-owners to vindicate. Mere delay in vindicating the
right, standing alone, does not constitute laches.

ALTERNATIVE ANSWER:

Ramon has acquired the land by acquisitive prescription, and because of laches on the
part of Rosario. Ramon’s possession of the land was adverse because he asserted sole
ownership thereof and never shared the harvest therefrom. His adverse possession
having been continuous and uninterrupted for more than 30 years, Ramon has acquired
the land by prescription. Rosario is also guilty of laches not having asserted her right to
the harvest for more than 40 years.

Ownership; Co-Ownership; Prescription (2002)

Senen and Peter are brothers. Senen migrated to Canada early while still a teenager.

Peter stayed in Bulacan to take care of their widowed mother and continued to work on
the Family farm even after her death. Returning to the country some thirty years after
he had left, Senen seeks a partition of the farm to get his share as the only co-heir of
Peter.  Peter interposes his opposition, contending   that acquisitive prescription has
already set in and that estoppel lies to bar the action for partition, citing his continuous
possession of the property    for at least 10 years, for almost 30 years in fact. It is
undisputed that Peter has never openly claimed sole ownership of the property. If he
ever had the intention to do so, Senen was completely ignorant of it. Will Senen’s action
prosper? Explain.

SUGGESTED ANSWER:

Senen’s action will prosper. Article 494 of the New Civil Code provides that “no
prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs
so long as he expressly or impliedly recognizes the co- ownership nor notified Senen of
his having repudiated the same.

ALTERNATIVE ANSWER:

Senen’s action will prosper. This is a case of implied trust. (Art 1441, NCC) For purposes
of prescription under the concept of an owner (Art. 540, NCC). There is no such concept
here. Peter was a co-owner, he never claimed sole ownership of the property. He is
therefore estopped under Art. 1431, NCC.

Ownership; Co-Ownership; Redemption (1993)

In 1937, A obtained a loan of P20,000.00 from the National City Bank of New York, an

American-owned bank doing business in the Philippines. To guarantee payment of his
obligation, A constituted a real estate mortgage on his 30- hectare parcel of agricultural
land. In 1939, before he could pay his obligation. A died intestate leaving three children.
B, a son by a first marriage, and C and D, daughters by a second marriage. In 1940, the
bank foreclosed the mortgage for non-payment of the principal obligation. As the only
bidder at the extrajudicial foreclosure sale, the bank bought the property and was later
issued a certificate of sale. The war supervened in 1941 without the bank having been
able to obtain actual possession of the property which remained with A’s three children
who appropriated for themselves the income from it. In 1948, B bought the property
from the bank using the money he received as back pay from the U. S. Government, and
utilized the same in agribusiness. In 1960,  as  B’s  business  flourished,  C  and  D  sued
B  for partition and accounting of the income of the property, claiming that as heirs of
their father they were co-owners thereof and offering to reimburse B for whatever he
had paid in purchasing the property from the bank.

In brief, how will you answer the complaint of C and D, if you were engaged by D as his

counsel?

SUGGESTED ANSWER:

As counsel of B, I shall answer the complaint as follows: When B bought the property, it
was not by a right of redemption since the period therefore had already expired. Hence,
B bought the property in an independent unconditional sale. C and D are not co-owners
with B of the  property.  Therefore,  the  suit  of  C  and  D  cannot prosper.

ALTERNATIVE ANSWER:

As counsel of B, I shall answer the complaint as follows: From   the   facts   described,  
it   would   appear   that   the Certificate of sale has not been registered. The one-year
period of redemption begins to run from registration. In this case, it has not yet even
commenced. Under the Rules of Court, the property may be released by the Judgment
debtor or his successor in interest. (Sec. 29, Rule 27). It has been held that this includes
a joint owner. (Ref. Magno vs. Ciola, 61 Phil. 80).

Ownership; Co-Ownership; Redemption (2000)

Ambrosio died, leaving his three daughters, Belen, Rosario and   Sylvia   a   hacienda   

which   was   mortgaged   to   the Philippine National Bank due to the failure of the
daughters to pay the bank, the latter foreclosed the mortgage and the hacienda was sold
to it as the highest bidder. Six months later, Sylvia won the grand prize at the lotto and
used part of it to redeem the hacienda from the bank. Thereafter, she took possession of
the hacienda and refused to share its fruits with her sisters, contending that it was
owned exclusively by her, having bought it from the bank with her own money. Is she
correct or not?

SUGGESTED ANSWER:

Sylvia is not correct. The 3 daughters are the co-owners of the hacienda being the only
heirs of Ambrosio. When the property was foreclosed, the right of redemption belongs
also to the 3 daughters. When Sylvia redeemed the entire property before the lapse of
the redemption period, she also exercised the right of redemption of her co-owners on
their behalf. As such she is holding the shares of her two sisters in the property, and all
the fruits corresponding thereto, in trust for them. Redemption by one co-owner inures
to the benefit of all (Adille v. CA, 157 SCRA 455). Sylvia, however, is entitled to be
reimbursed the shares of her two sisters in the redemption price.

Ownership; Co-Ownership; Redemption (2002)

Antonio,  Bart,  and  Carlos  are  brothers.  They  purchased from their parents specific
portions of a parcel of land as evidenced by three separates deeds of sale, each deed
referring to a particular lot in meter and bounds. When the deeds were presented for
registration, the Register of Deeds could  not  issue  separate  certificates  of  Title  had 
to  be issued, therefore, in the names of three brothers as co- owners  of  the  entire 
property.  The  situation  has  not changed up  to now,  but  each of  the  brothers  has 
been receiving rentals exclusively from the lot actually purchased by him. Antonio sells
his lot to a third person, with notice to his brothers. To enable the buyer to secure a new
title in his name, the deed of sale was made to refer to undivided interest in the property
of the seller (Antonio), with the metes and bounds of the lot sold being stated. Bart and
Carlos reacted by signifying their exercise of their right of redemption  as  co  owners. 
Antonio  in  his  behalf  and  in behalf of his buyer, contends that they are no longer co-
owners,  although  the  title  covering  the  property  has remained in their names as
such.

May Bart and Carlos still redeem the lot sold by Antonio? Explain.

SUGGESTED ANSWER:

No, they may not redeem because there was no Co- ownership among Antonio, Bart,
and Carlos to start with. Their parents already partitioned the land in selling separate
portions to them. The situation is the same as in the
case Si v. Court of Appeals, (342 SCRA 653 [2000]).

Possession (1998)

Using a falsified manager’s check, Justine, as the buyer, was able to take delivery of a

second hand car which she had just bought from United Car Sales Inc. The sale was
registered  with the  Land  Transportation  Office.  A  week later, the seller learned that
the check had been dishonored, but by that time, Justine was nowhere to be seen. It
turned out that Justine had sold the car to Jerico, the present possessor who knew
nothing about the falsified check. In a suit by United Car Sales, Inc. against Jerico for
recovery of the car, plaintiff alleges it had been unlawfully deprived of its property
through fraud and should, consequently, be allowed to recover it without having to
reimburse the defendant for the price the latter had paid. Should the suit prosper?

SUGGESTED ANSWER:

The suit should prosper as to the recovery of the car. However, since Jerico was not
guilty of any fraud and appears to be an innocent purchaser for value, he should be
reimbursed for the price he paid. This is without prejudice to United Car Sales, Inc. right
of action against Justine. As between two innocent parties, the party causing the injury
should suffer the loss. Therefore, United Car Sales, Inc. should suffer the loss.

ALTERNATIVE ANSWER:

Yes, the suit will prosper because the criminal act of estafa should be deemed to come
within the meaning of unlawful deprivation  under  Art.  559,  Civil  Code,  as  without  it
plaintiff would not have parted with the possession of its car.

ANOTHER ANSWER:

No, the suit will not prosper. The sale is valid and Jerico is a buyer in good faith.

ANOTHER ANSWER:

Under the law on Sales, when the thing sold is delivered by the seller to the buyer
without reservation of ownership, the ownership is transferred to the buyer. Therefore
in the suit of United Car Sales, Inc. against Jerico for the recovery of the car, the plaintiff
should not be allowed to recover the car without reimbursing the defendant for the price
that the latter paid. (EDCA Publishing and Distributing Corp. vs. Santos, 184
SCRA 614. April 26, 1900).

Property; Real vs. Personal Property (1995)

Salvador, a timber concessionaire, built on his lot a warehouse where he processes and
stores his timber for shipment. Adjoining the warehouse is a furniture factory owned by
NARRAMIX of which Salvador is a majority stockholder. NARRAMIX leased space in
the warehouse where it placed its furniture-making machinery.

1.   How would you classify the furniture-making machinery as property under the Civil

Code? Explain.

2.    Suppose  the  lease  contract  between  Salvador  and NARRAMIX stipulates that at

the end of the lease the machinery shall become the property of the lessor, will your
answer be the same? Explain.

SUGGESTED ANSWER:

1.  The furniture-making machinery is movable property because  it  was  not  installed      
by  the      owner  of  the tenement. To become immovable under Art. 415 (5) of the NCC,
the machinery must be installed by the owner of the tenement.

ALTERNATIVE ANSWER:

It  depends  on  the  circumstances  of  the  case.  If  the machinery was attached in a
fixed manner, in such a way that it cannot be separated from the tenement without
breaking the material or causing deterioration thereof, it is immovable property [Art.
415 (3), NCC]. However, if the machinery can be transported from place to place without
impairment of the tenement to which they were fixed, then it is movable property. [Art.
416 (4), NCC]

SUGGESTED ANSWER:

2.  It is immovable property. When there is a provision in the lease contract making the
lessor, at the end of the lease, owner of the machinery installed by the lessee, the said
machinery is considered to have been installed by the lessor through the lessee who
acted merely as his agent.  Having been installed by the owner of the tenement, the
machinery became immovable .under Art. 415 of the
NCC. (Davao Sawmill v. Castillo 61 Phil. 709)

Property; Real vs.Personal Property (1997)

Pedro is the registered owner of a parcel of land situated in Malolos, Bulacan. In 1973,

he mortgaged the land to the Philippine National Bank (PNB) to secure a loan of
P100.000.00. For Pedro’s failure to pay the loan, the PNB foreclosed on the mortgage in
1980, and the land was sold at public auction to PNB for being the highest bidder. PNB
secured title thereto in 1987.

In the meanwhile, Pedro, who was still in possession of the land, constructed a
warehouse on the property. In 1988, the PNB sold the land to Pablo, the Deed of Sale
was amended in 1989 to include the warehouse.

Pedro, claiming ownership of the warehouse, files a complaint to annul the amended
Deed of Sale before the Regional Trial Court of Quezon City, where he resides, against
both the PNB and Pablo. The PNB filed a motion to dismiss the complaint for improper
venue contending that the warehouse is real property under Article 415(1) of the Civil
Code and therefore the action should have instead been filed in Malolos, Bulacan. Pedro
claims otherwise. The question arose as to whether the warehouse should be considered
as real or as personal property.

If consulted, what would your legal advice be?

SUGGESTED ANSWER:

The warehouse which is a construction adhered to the soil is an immovable by nature

under Art. 415 (1) and the proper venue of any case to recover ownership of the same,
which is what the purpose of the complaint to annul the amended Deed of Sale amounts
to, should be the place where the property is located, or the RTC of Bulacan.

ADDITIONAL ANSWERS:

1.    Buildings are always immovable property, and even in the instances where the
parties to a contract seem to have dealt with it separate and apart from the land on
which it stood in no wise does it change its character as immovable property. A building
is an immovable even if not erected by the owner of the land. The only criterion is union
or incorporation with  the  soil  (Ladera vs. Hodges (CA)48 O.G. 4374) (Reyes
and Puno, Outline of Philippine Civil Law, Vol. 2. p. 7).

2.  The  warehouse  built  by  Pedro  on  the  mortgaged property is real property within
the context of Article 415 of the New Civil Code, although it was built by Pedro after the
foreclosure sale without the knowledge and consent of the new owner which makes him
a builder in bad faith, this does not alter the character of the warehouse as a real
property by incorporation.  It is a structure which cannot be removed without causing
injury to the land. So, my advice to Pedro is to file the case with the RTC of Bulacan, the
situs of the property,

(Note: If the examinee does not mention that the structure was built by a builder in

bad faith, it should be given full credit).

Sower; Good Faith/ Bad Faith (2000)

Felix cultivated a parcel of land and planted it to sugar cane, believing it to be his own.
When the crop was eight months old, and harvestable after two more months, a resurvey
of the land showed that it really belonged to Fred. What are the options available to
Fred?

SUGGESTED ANSWER:

As to the pending crops planted by Felix in good faith, Fred has the option of allowing
Felix to continue the cultivation and to harvest the crops, or to continue the cultivation
and harvest the crops himself. In the latter option, however, Felix  shall  have  the  right
to  a  part  of  the  expenses  of cultivation  and  to  a  part  of  the  net  harvest,  both  in
proportion to the time of possession (Art. 545 NCC).

ALTERNATIVE ANSWER:

Since sugarcane is not a perennial crop. Felix is considered a sower in good faith. Being
so, Art. 448 applies. The options available to Fred are: (a) to appropriate the crop after
paying Felix the indemnity under Art. 546, or (b) to require Felix to pay rent.

Usufruct (1997)

On  1  January  1980,  Minerva,  the  owner  of  a  building, granted Petronila a usufruct

over the property 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 Manuel and
demanded that the latter  vacate  the  premises  and  deliver  the  same  to  the former.
Petronila refused to vacate the place on the ground that the usufruct in her favor would
expire only on 1 June 1998 when Manuel would have reached his 30th birthday and that
the death of Manuel before his 30th birthday did not extinguish the usufruct.

Whose contention should be accepted?

SUGGESTED ANSWER:

Petronila’s contention is correct. Under Article 606 of the Civil Code, a usufruct granted
for the time that may elapse before a third person reaches a certain age shall subsist for
the  number  of  years  specified  even  if  the  third  person should die unless there is an
express stipulation in the contract that states otherwise. In the case at bar, there is no
express stipulation that the consideration for the usufruct is the existence of Petronila’s
son. Thus, the general rule and not the exception should apply in this case.

ALTERNATIVE ANSWER:

This is a usufruct which is clearly intended for the benefit of Manuel until he reaches 30
yrs. 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.