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PERSONS AND FAMILY RELATIONS
NEW CIVIL CODE

 took effect on August 30, 1950
Effectivity of laws GENERAL RULE: Laws take effect 15 days following the completion of its publication EXCEPTION: Unless otherwise provided by the law. This refers to the 15 day period and NOT to the requirement of publication. (Tanada vs. Tuvera) NOTE: Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant to a valid delegation. The publication must be in full since its purpose is to inform the public of the contents of the law. (Phil. Int’l Trading Corp. vs. Angeles) Ignorance of the law excuses no one  considered a CONCLUSIVE presumption and applies only to mandatory and prohibitory laws. (Consunji vs. CA) Non-retroactivity of laws GENERAL RULE: Laws have no retroactive effect. EXCEPTIONS: (UCIPELT) 1. Unless the law otherwise provides 2. Curative statutes 3. Interpretative statutes 4. Procedural/remedial 5. Emergency laws 6. Laws creating new rights 7. Tax laws EXCEPTIONS TO THE EXCEPTIONS: 1. Ex post facto laws 2. Laws that impair obligation of contracts Acts Contrary To Law GENERAL RULE: Acts which are contrary to mandatory or prohibitory laws are void. EXCEPTIONS: 1. When the law itself authorized its validity (ex. lotto, sweepstakes) 2. When the law makes the act only voidable and not void (ex. voidable contracts where consent is vitiated) 3. When the law makes the act valid but punishes the violator (ex. marriage solemnized by a person without legal authority)

Waiver of rights  Requisites: (EKI) 1. Existence of a right 2. Knowledge of the existence of a right 3. Intention to relinquish the right GENERAL RULE: Rights can be waived. EXCEPTIONS: 1. If the waiver is contrary to law, public order, public policy, morals or good customs (LPPMG) 2. If the waiver is prejudicial to a third party with a right recognized by law. Laws applicable 1. Penal laws and laws of public security  territoriality rule governs  laws of the Philippines will govern upon ALL those who live or sojourn in it

2. Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons  nationality rule applies  laws of the Philippines will govern its citizens, regardless of their residence EXCEPTION: When a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have the capacity to remarry under Philippine law. (Article 26(2) Family Code) NOTE: domiciliary rule supplants the nationality rule in cases involving stateless persons

3. Laws on property
 lex rei sitae applies  real property, as well as personal property is subject to the law of the country where it is situated

4. Laws on forms and solemnities
 lex loci celebrationis applies Rules on Personal Law DOMICILIARY RULE NATIONALITY RULE basis for determining basis for determining

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personal law of an individual is his domicile LEX NATIONALII Art. 15, CC Citizenship is the basis for determining the personal law applicable Covers family rights & duties, status, condition & legal capacity Exception: Art. 26, par. 2 of Family Code

personal law of an individual is his citizenship LEX LOCI CLEBRATIONIS Art. 17, CC Law of the place where the contract was executed is the basis for determining law applicable Covers only the forms & solemnities (extrinsic validity)

EXCEPTION: Art. 26, par. 2 Family Code  Example: Divorce law
Prejudicial Question GENERAL RULE: If both criminal and civil cases are filed in court, the criminal case takes precedence. EXCEPTION: When there is a prejudicial question or a question that arises in a case, the resolution of which is a logical antecedent of the issue involved herein, and the cognizance of which pertains to another tribunal.  Requisites (Sec. 7, Rule 111, Rules of Court) a. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and b. The resolution of such issue determines whether or not the criminal action may proceed NOTE: The Civil Code has suppletory application in matters governed by special laws

LEX REI SITAE Art. 16, CC Law of the place where the property is situated is the basis for determining law applicable Covers both real & personal property

Exceptions: (CIAO) 1. Capacity to succeed 2. Intrinsic validity of the will 3. Amount of successional rights 4. Order of succession

Exceptions: 1. Art. 26, par. 1 of Family Code (marriage involving Filipinos solemnized abroad, when such are void in the Philippines) 2. Intrinsic validity of contracts

PERSONS
CIVIL PERSONALITY  aptitude of being the subject, active or passive, of rights and obligations JURIDICAL CAPACITY Fitness to be the subject of legal relations Passive Inherent Lost only through death Can exist without capacity to act Cannot be limited or restricted CAPACITY TO ACT Power to do act with legal effects Active Merely acquired Lost through death and other causes Cannot exist without juridical capacity Can be restricted, modified or limited

Renvoi Doctrine  Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the latter (law of the forum) shall apply. NOTE: If the foreign law refers it to a third country, the said country’s laws shall govern, and is referred to as the transmission theory. Doctrine of Processual Presumption  The foreign law, whenever applicable, should be proved by the proponent thereof; otherwise, such law shall be presumed to be exactly the same as the law of the forum. Rule on Prohibitive Laws GENERAL RULE: Prohibitive laws concerning persons, their acts or property and laws which have for their object public order, public policy or good customs are not rendered ineffective by laws, judgments promulgated or conventions agreed upon in foreign country.

THEORIES ON CAPACITY TO ACT THEORY OF THEORY OF GENERAL SPECIAL CAPACITIES CAPACITIES Applies to natural Applies to juridical persons persons One has the ability to This limits the power of do all things with legal juridical persons only effects except only in to those that are those specific circumexpressly conferred

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stances where the capacity to act is restrained

upon them or those which can be implied therefrom or incidental thereto

creating or recognizing them; private corporations are governed by BP 68 and partnership and associations are governed by the provisions of this Code concerning partnerships. Cessation of Civil Personality 1. If natural persons: by death 2. If juridical persons: by termination existence

Natural persons GENERAL RULE: Birth determines personality. EXCEPTION: The law considers the conceived child as born for all purposes favorable to it if born alive. Therefore, the child has a presumed personality, which has two characteristics: 1. limited; and 2. provisional/conditional (Quimiguing vs. Icao) NOTES:  The presumption as to the child’s personality applies only in cases beneficial to the child.  The concept of provisional personality CANNOT be invoked to obtain damages for and in behalf of an aborted child. (Geluz vs. CA) When is a Child Considered Born GENERAL RULE: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. EXCEPTION: If the fetus had an intrauterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb. Presumption of survivorship  Two or more persons, called to succeed each other, shall be presumed to have died at the same time, subject to the following conditions: 1. parties are heirs to one another 2. no proof as to who died first 3. with doubt as to who died first NOTE: Article 43 applies when the parties are called to succeed each other. But if the parties are not called to succeed each other, Rule 131, Sec. 3 (jj) of the Rules of Court applies. Both are to be applied only in the absence of facts. Juridical persons WHO: a. State and its political subdivisions b. Corporations, institutions and entities for public purpose or interest c. Corporations, partnership and associations for private interest HOW CREATED: For (a) and (b), by the laws

of

CITIZENSHIP AND DOMICILE RESIDENCE DOMICILE used to indicate a denotes a FIXED PLACE OF ABODE, PERMANENT whether permanent or RESIDENCE, which temporary when absent, one has the intention of returning there can be several There can only be places of residence ONE place of domicile Elements of Domicile a. Physical presence in a fixed place b. Intention to remain permanently (animus manendi) Kinds of Domicile 1. Domicile of origin - received by a person at birth. 2. Domicile of choice - the place freely chosen by a person sui juris. 3. Constructive domicile - assigned to a child by law at the time of his birth.

ii. FAMILY CODE
 took effect August 3, 1988 MARRIAGE  A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. Its nature, consequences and incidents are fixed by law and cannot be the subject of stipulation. Essential requisites: (LC) 1. Legal capacity of the contracting parties, who must be a male and a female 2. Consent freely given in the presence of a solemnizing officer Formal requisites: (ALM) 1. Authority of the solemnizing officer

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2. Valid Marriage License 3. Marriage ceremony where the contracting
parties appear before the solemnizing officer, with their personal declaration that the take each other as husband and wife in the presence of not less than two witnesses of legal age Effects: 1. Absence of essential or formal requisites  the marriage is void ab initio 2. Defect in any of the essential requisites  The is marriage voidable 3. Irregularity in any of the formal requisites  Does NOT affect the validity of the marriage BUT will hold the party responsible for such irregularity liable Persons Authorized To Solemnize Marriages: (PMJCCC) 1. priests, rabbis, and ministers of any church 2. municipal and city mayors 3. members of the judiciary 4. ship captains or air plane chiefs 5. commanders of military unit, in the absence of chaplain 6. consul generals, consuls or vice-consuls Authorized Venues Of Marriage GENERAL RULE: Must be solemnized publicly, and not elsewhere, in the: 1. chambers of the judge or in open court 2. church, chapel or temple 3. office of consul-general, consul or viceconsul EXCEPTIONS: 1. marriage at the point of death (articulo mortis); 2. marriage in remote places 3. marriage at a house or place designated by the parties with the written request to the solemnizing officer Marriages Exempt From License Requirement: (MOLAR) 1. among Muslims or members of ethnic cultural communities, provided such were solemnized in accordance with their customs, rites and practices 2. solemnized outside the Phil. where NO marriage license is required by the country where they were solemnized

3. of a man and a woman who have lived
together as husband and wife for at least 5 years and without legal impediment to marry each other NOTE: The 5-year period should be computed on the basis of a cohabitation as husband and wife where the only missing factor is the marriage contract to validate the union. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity - that is unbroken (Ninal vs. Bayadog, GR No. 133778 March 14, 2000). NOTE: In the case of Manzano vs. Sanchez (G.R. No. MTJ-00-1329, March 08, 2001), the Supreme Court laid down the requisites to avail the exemption under Article 34 of the Family Code: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage

4. in articulo mortis 5. in remote places
NOTE: A marriage license is valid only for 120 days from date of issue, in any part of the Philippines. Foreign Marriages  Validity of marriage: GENERAL RULE: Where one or both parties to the marriage are citizens of the Philippines, the foreign marriage is valid in this country if solemnized in accordance with the laws of the country of celebration. EXCEPTIONS: Foreign marriages shall not be

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recognized in the Philippines if prohibited because: (MABB-PIP) 1. contracted by a national who is below 18 years of age 2. bigamous or polygamous (except as provided for in Art. 41, FC) 3. contracted through mistake of one party as to the identity of the other 4. contracted following the annulment or declaration of nullity of a previous marriage but before partition 5. void due to psychological incapacity 6. incestuous 7. void for reasons of public policy  Validity of divorce: GENERAL RULE: A divorce validly obtained abroad by the alien spouse, capacitating him/her to remarry can allow the Filipino to remarry. EXCEPTION: The rule will not apply if the divorce was obtained by the Filipino spouse. NOTE: A Filipino wife remains the lawful wife of the Filipino husband despite a decree of divorce obtained abroad by the wife. However, if the wife is already a foreigner at the time of the divorce, she ceases to be the lawful wife of the Filipino husband. This, notwithstanding, if at the time of the marriage the wife was still a Filipino, and subsequently acquires citizenship of another country, thereby rendering her to have the legal capacity to obtain a decree of divorce, the Filipino husband remains a spouse of the former. This situation is not covered by Art. 26, par.2 which requires that, at the time of the marriage, one of the parties is already an alien. VOID MARRIAGES A. Due to absence of any of the essential requisites: (BB-LAPIS) 1. contracted by any party below 18 years of age even with parental consent 2. solemnized by any person not legally authorized to perform marriages unless one or both of the parties believed in good faith that the solemnizing officer had the legal authority to do so 3. solemnized without a license except as otherwise provided 4. bigamous or polygamous marriages 5. marriages contracted through mistake of one of the parties as to the identity of the other

6. subsequent marriages that are void under
Article 53 of the Family Code

7. contracted by a party who at the time of the
marriage was psychologically incapacitated B. Incestuous marriages, whether the relationship be legitimate or illegitimate (Article 37): 1. between ascendants & descendants of any degree 2. between brothers & sisters whether full or half-blood C. Those contrary to public policy (Article 38): (SCAPS-SAKA) 1. between collateral blood relatives whether legitimate or illegitimate up to the 4th civil degree 2. between step-parents & step children 3. between parents-in-law & children-inlaw 4. between the adopting parent & the adopted child 5. between the surviving spouse of the adopting parent & the adopted child 6. between the surviving spouse of the adopted child & the adopter 7. between an adopted child & a legitimate child of the adopter 8. between the adopted children of the same adopter 9. between parties where one, with the intention to marry the other, killed the latter’s spouse, or his/her spouse NOTE: Under the FC, the following can now marry each other: a. Brother-in-law and sister-in-law; b. Stepbrother and stepsister; c. Guardian and ward; d. Adopted and illegitimate child of the adopter; e. Parties who have been convicted of adultery or concubinage. D. Subsequent marriages 1. without judicial declaration of nullity of previous void marriage (Article 40) 2. without judicial declaration of presumptive death of absent spouse (Article 41) 3. where the spouse was presumed dead, and both the present spouse and

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would-be spouse were in bad faith in contracting marriage (Article 44) NOTE: Where there was failure to record in the civil registry and registry of property the judgment of annulment or of absolute nullity of the marriage, partition and distribution of the property of the spouses and the delivery of the children’s presumptive legitimes it shall not affect third persons (Articles 52-53). NOTE: Even if a marriage is void, it must be declared void first because the parties cannot decide for themselves the invalidity of their marriage. VOID Decree of nullity Never be ratified Attacked directly or collaterally Co-ownership Always void Action for declaration of nullity does not prescribe VOIDABLE Decree of annulment Ratified by free cohabitation Attacked directly only Conjugal Partnership Valid until annulled Action prescribes

1. burden of proof belongs to the plaintiff
2. root cause of the psychological incapacity must be: a. medically or clinically identified b. alleged in the complaint c. sufficiently proven by experts d. explained in the decision 3. incapacity must be existing at the time of the celebration of marriage 4. incapacity must be permanent or incurable 5. illness is grave enough to bring about disability to assume marital obligations 6. marital obligations refer to Art. 68-71 of FC as well as Art. 220,221 and 225 of the FC 7. interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines while not controlling should be given great respect. 8. trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear for the state. BIGAMOUS MARRIAGES GENERAL RULE: A marriage contracted by any person during the subsistence of a previous valid marriage shall be null and void.(Gomez vs. Lipana) EXCEPTIONS: When the following conditions concur, the subsequent bigamous marriage shall be valid: 1. absence of the other spouse must have been for four consecutive years, or two years where there was danger of death 2. well-founded belief of the present spouse that absent spouse was already dead 3. judicial declaration of presumptive death EFFECTS OF TERMINATION OF SUBSEQUENT MARRIAGE: (ICADI) 1. Children of the subsequent marriage conceived prior to its termination shall be considered legitimate; 2. The absolute community or conjugal partnership shall be dissolved and liquidated. If either spouse acted in bad faith, his/her share in the net profits shall be forfeited: a. in favor of the common children; b. if none, in favor of the children of the guilty spouse by previous marriage; or c. in default of children, in favor of the innocent spouse; 3. Donations by reason of the marriage remain

Psychological Incapacity  no exact definition but is restricted to psychological incapacity “to comply with the essential marital obligations of marriage”  involves a senseless, protracted and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations (Chi Ming Tsoi vs. CA)  Essential elements: (MAVFFCCI) a. Mental condition b. Applies to a person who is maritally contracted to another c. Marriage entered into with volition d. Failure to perform or comply with the essential obligations in marriage e. Failure to perform is chronic f. Cause is psychological in nature g. Cause is serious, with juridical antecedence and must be incurable h. Incapacity results in the failure of the marriage. i. JURISPRUDENTIAL GUIDELINES: (Republic vs. Molina)

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valid except if the donee contracted the marriage in bad faith; 4. The innocent spouse may revoke the designation of the spouse in bad faith as the beneficiary in any insurance policy; and 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession. NOTE: The above effects apply in voidable bigamous marriages. Except for (1), the above effects also apply to marriages which are annulled or declared void ab initio under Art. 40 of the Code. DECLARATION OF PRESUMPTIVE DEATH  Requisites: (MR-BF) 1. That the absentee spouse has been missing for 4 consecutive years or 2 consecutive years if the disappearance occurred where there is danger of death under circumstances laid down in Art.391 of the NCC 2. The present spouse wishes to remarry; 3. The present spouse has well-founded belief that the absentee is Dead; 4. The present spouse files a summary proceeding for the declaration of presumptive death Effect of Reappearance of Absent Spouse: GENERAL RULE: The subsequent bigamous marriage under Article 41 remains valid despite reappearance of the absentee spouse. EXCEPTION: If the reappearance was made in a sworn statement recorded in the civil registry, the subsequent marriage is “automatically terminated.” EXCEPTION TO THE EXCEPTION: If there was a previous judgment annulling or declaring the first marriage a nullity, the subsequent bigamous marriage remains valid. VOIDABLE MARRIAGES  Grounds: (UP-FAVS) 1. Age of the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below 21, and the marriage was solemnized without the consent of the parents, guardian or person exercising substitute parental authority over the party, in that order, and both lived together as husband and wife; 2. Unsound mind of either party

3. Fraudulent means of obtaining consent of
either party

4. Vitiated consent of either party through
force, intimidation or undue influence

5. Physical incapability of either party to
consummate the marriage with the other, and such incapacity continues and appears to be incurable Sexually-transmissible disease of either party found to be serious and appears to be incurable

6.

NOTE: Mode of ratification for Nos. 1-4 is COHABITATION. In Nos. 5 & 6, there is no ratification to speak of since the defect is permanent. The latter can be convalidated only by prescription, i.e. 5 years from the date of marriage. Specifically, in no.5, the healthy spouse may still annul the marriage within 5yrs. after celebration. Circumstances amounting to Fraud under Article 46: (SPND) 1. Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; 2. Concealment by the wife of the fact that at the time of the marriage, she was Pregnant by a man other than her husband; 3. Concealment of a Sexually transmissible disease, regardless of its nature, existing at the time of the marriage; and 4. Concealment of Drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage. NOTE: Misrepresentation as to character, health, rank, fortune or chastity is not a ground for annulment. NOTE: The enumeration in Article 46 is EXCLUSIVE. (Anaya vs. Palaroan) Ground (F2I2NS) 1. Force, intimidation, or undue influence Persons Who May Sue Injured party Prescriptive Period w/in 5 years from the time the force, intimidation, or undue influence ceased w/in 5 years from the discovery of fraud

2. Fraud

Injured party

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husband. 3. Incapability to consummate 4. Insanity Injured party w/in 5 years after the celebration of the marriage a. anytime before the death of either party b. anytime before the death of either party c. during lucid interval or after regaining sanity Requisites for annulment due to Disease under Article 45(6) (ICSIIF) 1. Either party is inflicted with a sexually transmissible disease (STD) 2. STD must exist at the time the marriage is celebrated 3. STD must be serious 4. STD must be apparently incurable 5. Party not afflicted by STD must be ignorant of the other’s affliction 6. Injured party must be free from STD ADDITIONAL REQUIREMENTS FOR ANNULMENT OR DECLARATION OF NULLITY 1.Prosecuting attorney or fiscal should: a. Take steps to prevent collusion between the parties b. Take care that evidence is not fabricated or suppressed 2.The following must be accomplished: a. Partition and distribution of the properties of the spouses b. Delivery of the children’s presumptive legitimes c. Recording of the judgment of annulment or absolute nullity RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES (A.M. 00-11-01-SC)  took effect on March 15, 2003  this Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines.  the Rules of Court has suppletory application  for a more comprehensive discussion on the procedural aspects of the Rule, please refer to the Remedial Law Memory Aid. LEGAL SEPARATION  Grounds: (SAMBA-LIPAD) 1. repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner 2. attempt of the respondent to corrupt or induce the petitioner, a common child, or a

5. Nonconsent

6. STD

a. sane spouse who has no knowledge of the insanity b. relatives, guardians or persons having legal charge of the insane c. insane spouse a. parent/ legal guardian having charge of the “noconsent” party b. ”no consent “ party injured party

a. anytime before the “no consent” party reaches 21 b. w/in 5 years after reaching 21

w/in 5 years after the celebration of the marriage

NOTE: In Nos. 1, 2, 4, and 5, when cohabitation takes place after the defect ceases to exist, the prescriptive period is rendered moot and academic. Whichever comes first may convalidate the marriage: Cohabitation or Prescription. Requisites for annulment due to Impotence under Art.45(5) (CUPIN) a. Impotence exists at the time of the celebration of the marriage b. The impotence is permanent c. incurable d. The impotence is unknown to the other spouse e. The other spouse must not also be impotent Doctrine of Triennial Cohabitation  presumption that the husband is impotent should the wife still remain a virgin after 3 years of living together with her

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3. 4. 5. 6. 7. 8. 9. 10.

child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement attempt by the respondent against the life of the petitioner final judgment sentencing the respondent to imprisonment of more than 6 years even if pardoned drug addiction or habitual alcoholism of the respondent lesbianism or homosexuality of the respondent abandonment of the petitioner by the respondent without justifiable cause for more than 1 year physical violence or moral pressure to compel petitioner to change religious or political affiliation contracting by respondent of a subsequent bigamous marriage; and sexual infidelity or perversion.

c.

In the absence of an agreement between the parties, the court shall designate the husband, the wife, or a 3rd person to manage the absolute community or conjugal partnership property. Effects of decree of legal separation: a. The spouses shall be entitled to live separately from each other but the marriage bond is not severed. b. The absolute community or conjugal partnership shall be dissolved and liquidated. c. The custody of the minor children shall be awarded to the innocent spouse subject to the provisions of Art. 213 of the Code. d. The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession and the provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. e. The innocent spouse may revoke the donations made by him/her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if the designation be irrevocable. Effects of Reconciliation of the Spouses: a. The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage. b. The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. RULE ON LEGAL SEPARATION (A.M. 02-11-11-SC)  took effect on March 15, 2003  this Rule shall govern petitions for legal separation under the Family Code in the Philippines; the Rules of Court shall apply suppletorily  please refer to the Remedial Law Memory Aid for the procedural provisions of the Rule MARITAL RIGHTS AND OBLIGATIONS (JL-FORM) 1. live together 2. observe mutual love, respect & fidelity 3. render mutual help & support 4. fix the family domicile

NOTES:  Cooling-off Period – 6 months period designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them.  The enumeration in Article 55 regarding legal separation is EXCLUSIVE. (Lacson vs. San Jose-Lacson) Grounds for denial of petition: (CCCC-MP-DR) a. Condonation -NOTE: failure of the husband to look for his adulterous wife is NOT condonation to wife's adultery. (Ocampo vs. Florenciano) b. Consent c. Connivance d. Collusion e. Mutual Guilt f. Prescription g. Death of either party during the pendency of the case (Lapuz-Sy vs. Eufemio) h. Reconciliation of the spouses during the pendency of the case Effects of filing petition: a. The spouses shall be entitled to live separately from each other. b. The husband shall have no more right to have sexual intercourse with his wife.

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5. joint responsibility for the support of the
family

6. management of the household
Exercise of Profession GENERAL RULE: Husband & wife can engage in any lawful enterprise or profession without the consent of the other. EXCEPTION: Upon objection of the other spouse only on valid, serious and moral grounds, may the former’s consent be necessary. Property Relations Between Husband & Wife  Governed by: 1. marriage settlements executed before the marriage or antenuptial agreements 2. provisions of the Family Code 3. local customs (when spouses repudiate absolute community) MARRIAGE SETTLEMENTS  It is a contract entered into by the future spouses fixing the matrimonial property regime that should govern during the existence.  Requisites: 1. made before celebration of marriage 2. in writing (even modifications) 3. signed by the parties 4. not prejudice third persons unless registered in the civil registry 5. to fix terms and conditions of their property relations 6. additional signatories a. 18-21: parents b. civil interdictees & disabled: guardian  Not applicable when: 1. both spouses are aliens, even if married in the Philippines 2. as to extrinsic validity of contracts 3. contrary stipulation DONATIONS BY REASON OF MARRIAGE  Requisites: (COBB) 1. made before celebration of marriage 2. in consideration of marriage 3. in favor of one or both future spouses BASES Formalities DONATIONS PROPTER NUPTIAS Governed by ORDINARY DONATIONS Governed by

Present Property

Future property

Grounds for revocation

the rules on ordinary donations except that if future property is donated, it must conform with formalities of wills May be donated but up to 1/5 of donor’s present property May be included provided donation is mortis causa Art. 86, FC

rules on donations (Arts. 725773, NCC)

No limit except that donor shall leave property enough for his support Cannot be included

Arts. 760, 764, & 765, NCC

Rule on Donation Between Spouses During Marriage GENERAL RULE: VOID, either direct or indirect donation EXCEPTIONS: 1. moderate gifts on occasions of family celebrations 2. donations mortis causa NOTE: This rule also applies to common-law spouses. (Article 87, Family Code) Grounds for Revocation (VIRAL-CN) 1. marriage Not celebrated or declared Void ab initio except those made in marriage settlements 2. marriage without parental Consent 3. marriage is Annulled and donee is in bad faith 4. upon Legal separation, the donee being the guilty spouse 5. complied Resolutory condition 6. donee commits acts of Ingratitude SYSTEM OF ABSOLUTE COMMUNITY (AC)  The property regime of the spouses in the absence of a marriage settlement or when the marriage is void. This is so because it is more in keeping with Filipino culture.

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GENERAL RULE: Community property shall consist of all property owned by the spouses at the time of the marriage or acquired thereafter. EXCEPTIONS: (BEG) 1. property acquired before the marriage by either spouse who has legitimate descendants by a former marriage 2. property for personal and exclusive use except jewelry 3. property acquired during the marriage by gratuitous title, except when the donor, testator or grantor expressly provides otherwise NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of property. The waiver must be in a public instrument.
Administration of the community property GENERAL RULE: It shall belong to both spouses jointly. EXCEPTIONS: 1. In case of disagreement, husband’s decision shall prevail. 2. In case one spouse is incapacitated or unable to participate in the administration of the common properties, other spouse may assume sole powers. NOTE: These powers do not include: a. Disposition b. encumbrance NOTE: Any alienation or encumbrance is void if without the written consent of the other spouse Rule on Game of Chance  LOSS: Shall be borne by the loserspouse and shall not be charged to the community property  WINNINGS: Shall form part of the community property Steps in Liquidation of AC: (IP-DDP) 1. Inventory a. Inventory of Community Property b. Inventory of separate property of the wife c. Inventory of separate property of the husband 2. Payment of Community Debts  First, pay out of community assets, if not enough, husband and wife are solidarily liable 3. Delivery to each spouse his/her separate

property if any 4. Division of the net community assets 5. Delivery of presumptive legitimes, if any, to the children CONJUGAL PARTNERSHIP OF GAINS (CP)  It is that formed by a husband and wife whereby they place in a common fund the fruits of their separate property, and the income from their work or industry, the same to be divided between them equally (as a general rule) upon the dissolution of the marriage or the partnership. Conjugal Partnership Property: (LC2 FONT) 1. obtained from labor, industry, work or profession 2. acquired by chance 3. acquired during the marriage with conjugal funds 4. fruits of the conjugal property 5. acquired through occupation 6. net fruits of their exclusive property 7. share of either spouse in hidden treasure Exclusive Property Of Each Spouse: (OGRE) 1. that which is brought to the marriage as his/her own 2. acquired during the marriage by gratuitous title 3. acquired by right of redemption, barter or exchange with property belonging to either spouse 4. purchased with exclusive money of either spouse Rules In Cases Of Improvement Of Exclusive Property 1. Reverse Accession – if the cost of the improvement and the plus value is more than the value of the principal property at the time of the improvement, the property becomes conjugal 2. Accession – if the cost of the improvement of the plus value is equal to or less than the value of the principal property at the time of the improvement, the entire property becomes the exclusive property of the spouse. Steps In Liquidation Of CP: (DIRDO-DIP) 1. Inventory of the Conjugal Partnership of Gains assets 2. Restitution of advances made to each spouse

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3. 4. 5. 6. 7. 8.

Payment of debts to each spouse Payment of obligations to third parties Delivery of exclusive properties Payment of losses and deterioration of movables belonging to each spouse Delivery of presumptive legitimes Division of the net conjugal partnership properties

 The separate properties shall be solidarily
and subsidiarily liable for the obligations if the community or conjugal properties are insufficient. The absolute community property shall also be liable for ante-nuptial debts mentioned above, support of illegitimate children, and liabilities incurred by either spouse by reason of a crime or quasi-delict in case of insolvency of the exclusive property of the debtor-spouse. Payment of which shall be advanced by the absolute community property, subject to deduction from the share of the debtor-spouse. The conjugal partnership property shall likewise be liable for the payment of the personal debts of either spouse insofar as they have redounded to the benefit of the family.



NOTE: Property bought on installments paid partly from exclusive funds of the spouses and partly form conjugal funds: a. If full ownership was vested before the marriage – it shall belong to the buyerspouse b. If full ownership was vested during the marriage - it shall belong to the conjugal partnership Charges Upon And Obligations Of AC and CP: 1. Support for family except for illegitimate children of either spouse; 2. Debts and obligations which must have been contracted: a. by administrator-spouse for the benefit of the family; b. by both spouses; or c. by one spouse with the consent of the other; 3. Debts and obligations without marital consent provided the family was benefited; 4. All taxes, liens, charges and expenses including major or minor repairs upon the community or conjugal property; NOTE: However, in conjugal partnership, actual use need not be proved because it is presumed. 5. All taxes and expenses for mere preservation made during the marriage upon the exclusive property of either spouse used by the family; 6. Expenses for education or self-improvement of either spouse; 7. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; 8. The value of what is donated or promised by both spouses in favor of their common legitimate children for education or selfimprovement; and 9. Expenses of litigation between spouses unless found to be groundless. NOTE:



Grounds For Termination Of Absolute Community And Conjugal Partnership: (LADS) 1. decree of legal separation 2. annulment or declaration of nullity of marriage 3. death of either spouses 4. judicial separation of property REGIME OF SEPARATION OF PROPERTY  Causes: (CLAAPS) a. petitioner’s spouse has been sentenced with a penalty which carries with it civil interdiction; b. loss of parental authority of the petitioner’s spouse as decreed by the court; c. petitioner’s spouse has been judicially declared an absentee; d. abandonment by the petitioner’s spouse and failure to comply with the obligations to the family; e. spouse granted power of administration in marriage settlement abused such power; and f. at the time of the petition, spouses are separated in fact for at least 1 year and the possibility for reconciliation is highly improbable. NOTE: The spouses contribute to the family expenses proportionately with their income and

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the value of their properties. However, the liability of the spouses to the creditors for family expenses is solidary. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE Art. 147 Art. 148 Applicability 1. Without 1. With legal legal impediment to impediment to marry marry 2. Adulterous 2. Void relationships marriages due 3. Bigamous to absence of or formal polygamous requisite marriages 4. Incestuous void marriages under Art. 37 5. Void marriages by reason of public policy under Art. 38 Salaries & Wages Property Acquired Exclusively by Either Party Owned in equal shares Belongs to such party provided there is proof that he/she acquired it by exclusive funds Governed by the rules on co-ownership Separately owned by the parties Belongs to such party

extent of actual contribution, there is a presumption of equal sharing. Forfeiture When only one of the parties is in good faith, the share of the party in bad faith in the coownership shall be forfeited: a. in favor of their common children; or b. in default of or in case of waiver by any or all of the common children or their descendants, in favor of the innocent party. If one of the parties is validly married to another, his/her share in the coownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another or if both parties are in bad faith, such share shall be forfeited in the manner provided in the last paragraph of Article 147.

Property Acquired by Both Parties

Owned by them in common in proportion to their respective contributions No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the

THE FAMILY  Basic social institutition which public policy cherishes and protect hence, no suit between membes of the family shall prosper unless the compromise between the parties have failed

Presumption (prima facie)

Presumption of joint acquisition and equal sharing as to property acquired while they live together.

FAMILY RELATIONS INCLUDE: 1. between husband and wife 2. between parents and children 3. among ascendants and descendants 4. among brothers and sisters whether full or half-blood
FAMILY HOME GENERAL RULE: The family home is exempt from execution, forced sale or attachment.

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EXCEPTIONS: (PLMN) 1. debts incurred prior to constitution 2. debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished materials for the construction of the building 3. debts secured by mortgages 4. non-payment of taxes
 Guidelines: 1. deemed constituted from time of actual occupation as a family residence 2. must be owned by person constituting it 3. must be permanent 4. rule applies to valid and voidable and even to common-law spouses under Articles 147 and 148 5. continues despite death of one or more spouses or unmarried head of the family for 10 years, or as long as a minor beneficiary lives 6. can constitute one (1) family home only

7. Legitimated,

conceived and born outside of wedlock of parents without impediment at the time of conception and had subsequently married

Illegitimate Children GENERAL RULE: Those conceived and born outside a valid marriage are illegitimate. EXCEPTIONS: Children who are: 1. born of marriages which are void ab initio such as bigamous and incestuous marriages and marriage was declared void for being contrary to law and public policy 2. of voidable marriages born after the decree of annulment Rules on Impugning Legitimacy A. Grounds (PBA) 1. physical impossibility of the husband to have sexual intercourse with his wife within the 1st 120 days of the 300 days immediately preceding the child’s birth, due to: a. physical incapacity of the husband; b. husband and the wife were living separately; or c. serious illness of the husband which absolutely prevented sexual intercourse 2. biological or scientific proof that the child could not have been that of the husband; and 3. written authorization or ratification of either parent for artificial insemination was obtained through mistake, fraud, violence, intimidation or undue influence. B. Prescriptive periods 1. one year, from knowledge of birth or recording in the civil register, if husband or heirs lives in the SAME city/municipality 2. two years, if resides in the Phils. 3. three years, if abroad C. Parties GENERAL RULE: Only the husband may impugn EXCEPTION: The heirs, if the husband dies before the end of the prescription of the action, or after filing complaint, or child was born after death NOTE: The question of legitimacy cannot be collaterally attacked, it can be impugned only in a direct action.

PATERNITY AND FILIATION
Rule on Children Conceived as a Result of Artificial Insemination  Status is legitimate child, provided both husband and wife authorized or ratified the insemination in a written instrument which they executed and signed before the birth of the child Legitimate Children GENERAL RULE: Only those who are conceived or born during a valid marriage EXCEPTIONS: (CAVALAC) Those children who are 1. Conceived as a result of artificial insemination 2. Born of a voidable marriage before decree of annulment 3. Conceived or born before judgment of annulment or absolute nullity under Art. 36 has become final & executory 4. Conceived or born of subsequent marriage under Art. 53 5. Of mothers who may have declared against its legitimacy or was sentenced as an adultress 6. Legally adopted

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Rule on the Status of Children born after 300 days following Termination of Marriage A. Requisites (TS-WBN) 1. first marriage terminated 2. mother contracted subsequent marriage 3. subsequent marriage was contracted within 300 days after termination of previous marriage 4. child was born 5. no evidence as to status of child B. Rules as to whom the child belongs 1. to first marriage, if child was born before the lapse of 180 days after celebration of 2nd marriage provided born within 300 days after termination of the 1st marriage 2. to second marriage, if child was born after 180 days following celebration of 2nd marriage whether born within 300 days after termination of 1st marriage or afterwards Rights of the Children LEGITIMATE ILLEGITIMATE Use of father & Use of mother‘s mother’s surname surname NOTE: However, RA 9255 amended Article 176, FC Receive support from Receive support parents according to FC Entitled to the legitime Legitime is ½ of the & other successional legitime of a legitimate rights child R.A. No. 9255  An Act Allowing Illegitimate Children to use the surname of their Father, amending for the purpose Article 176 of EO No. 209, otherwise known as the "FAMILY CODE OF THE PHILIPPINES":  Approved February 24, 2004 Illegitimate children may use the surname of their father if: 1. their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or 2. when an admission in a public document or private handwritten instrument is made by the father LEGITIMATION  Requisites: (NIM) a. The child is illegitimate b. The parents at the time of the child’s

conception are not disqualified from marrying each other c. There is a valid marriage subsequent to the child’s birth

ADOPTION
A. Domestic Adoption Act of 1998 (R.A. NO. 8552) Who may adopt: (LPG-CANE) 1. Filipino Citizen: a. of legal age b. in a position to support and care for his/her children in keeping with the means of the family c. good moral character d. in possession of full civil capacity or legal rights e. at least 16 years older than the adoptee, except when: 1) adopter is the biological parent of the adoptee 2) adopter is the spouse of the adoptee’s parent f. has not been convicted of any crime involving moral turpitude g. emotionally and psychologically capable of caring for children

2. Alien:
a. same qualifications as a Filipino b. country has diplomatic relations with the Phil. c. has been living in the Phil. for at least three (3) continuous years prior to the application for adoption and maintains such residence until the adoption decree is entered, except when 1) former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity 2) one who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse 3) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse d. certified to have legal capacity to adopt by his/her diplomatic or consular office e. certified by said office that his government allows the adoptee to enter

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his/her country as his/her adopted child

5. spouse of the adopter and adoptee
Effects of Adoption: (SAL) 1. Severance of legal ties between the biological parents and the adoptee and the same shall be vested in the adopters. EXCEPTION: if the biological parent is the spouse of the adopter 2. Adoptee shall be considered as a legitimate child of the adopter(s) for all intents and purposes. 3. In legal or intestate succession, the adoptee and the adopter(s) shall have reciprocal rights of succession without distinction from legitimate filiation. However, if there is a will, the rules on testamentary succession shall be followed. Rescission of Adoption  Grounds: (ASAR) 1. attempt on the life of the adoptee 2. sexual assault or violence 3. abandonment and failure to comply with parental obligations 4. repeated physical or verbal maltreatment by the adopter NOTES:  Only the adoptee is given the right to rescind the decree of adoption  The adopter can NOT rescind the decree of the adoption but he or she may disinherit the adoptee.  Effects: a. Parental authority of adoptee’s biological parents or legal custody of DSWD shall be restored if adoptee is still a minor or incapacitated. b. Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished. c. The amended certificate of birth of the adoptee shall be cancelled and its original shall be restored. d. Succession rights shall revert to its status prior to the adoption, but vested rights shall not be affected. B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) Inter-Country Adoption  The socio-legal process of adopting a Filipino child by a foreigner or a Filipino

3. Guardian – with respect to the ward after
termination of the guardianship and clearance of his/her financial accountabilities Pre-Adoption Services  the DSWD shall provide for the following services: a. counselling services for the biological parents, prospective adoptive parents and prospective adoptee b. exhaust all efforts to locate the biological parents, if unkown Rule on Adoption by Spouses GENERAL RULE: The husband and the wife shall JOINTLY adopt. EXCEPTIONS: 1. one spouse seeks to adopt the legitimate child of the other 2. one spouse seeks to adopt his/her own illegitimate child 3. the spouses are legally separated Who may be adopted: 1. any person below 18 years of age who has been voluntarily committed to the DSWD under P.D. 603 or judicially declared available for adoption 2. legitimate stepchild 3. illegitimate stepchild 4. qualified adult, who, prior to the adoption, has been consistently considered by the adopter as his/her own child since minority; 5. child whose adoption has been previously rescinded 6. child whose biological or adoptive parents have died, provided that no proceedings shall be initiated within 6 months from the time of death of said parents Consent in Adoption (BAILAS) The WRITTEN CONSENT to the adoption is required in the following cases: 1. the adoptee, if 10 years of age or over 2. biological parents or government instrumentality 3. the legitimate/adopted children, 10 years old or over, of the adopter and adoptee 4. the illegitimate children, 10 years old or over, of the adopter if living with the adopter and the latter's spouse

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citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. Who may be adopted: a. Only a “legally-free child” may be the subject of inter-country adoption NOTE: “Legally-free Child” - a child who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child Youth and Welfare Code. b. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. Who may adopt:  Any alien or Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: 1. is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of the application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent 2. if married, his/her spouse must jointly file for the adoption 3. has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counselling from an accredited counsellor in his/her country 4. has not been convicted of a crime involving moral turpitude 5. is eligible to adopt under his/her national law 6. is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted 7. agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of a Child, and to abide by the rules and regulations issued to implement the InterCountry Adoption Act 8. comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws

9.

possesses all the qualifications and none of the disqualifications under the Inter-Country Adoption Act and other applicable Philippine laws

Inter-Country Adoption Board  acts as the central authority in matters relating to inter-country adoption.  The Board shall ensure that all possibilities for the adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child. Trial Custody:  6 months from the time of placement 1. starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child. 2. the adopting parent(s) shall submit to the governmental agency or authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child’s adjustment. NOTES:  If the pre-adoptive relationship is found unsatisfactory by the child or the applicant or both, or if the foreign adoption agency finds that the continued placement of the child is not in the child’s best interest, said relationship shall be suspended by the Board and the foreign adoption agency shall arrange for the child’s temporary care.  If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the Board shall submit the written consent to the adoption to the foreign adoption agency within 30 days after receipt of the latter’s request.  A copy of the final decree of adoption of the child, including certificate of citizenship/naturalization whenever applicable, shall be transmitted by the foreign adoption agency to the Board within 1 month after its issuance. NOTE: For a comprehensive discussion of the procedural aspects of adoption, please refer to A.M. No. 02-06-02-SC or the Remedial Law Memory Aid SUPPORT

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 everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family Kinds: (LJC) 1. Legal – that which is required or given by law 2. Judicial – required by the court to be given whether pendente lite or in a final judgment 3. Conventional – given by agreement Characteristics: (PIN-ERV) 1. Personal 2. Intransmissible 3. Not subject to waiver or compensation 4. Exempt from attachment or execution 5. Reciprocal on the part of those who are by law bound to support each other 6. Variable Persons obliged to support each other: 1. spouses 2. legitimate ascendants and descendants 3. parents and their legitimate children and the legitimate and illegitimate children of the latter 4. parents and their illegitimate children and the legitimate and illegitimate children of the latter 5. legitimate brothers and sisters whether full or half-blood NOTE: Support shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Order of liability if several persons are obliged to give support: 1. spouse 2. descendants in the nearest degree 3. ascendants in the nearest degree 4. brothers and sisters NOTE:  When the obligation to give support falls upon 2 or more persons payment shall be divided between them in proportion to the resources of each, but in case of urgent need and special circumstances, the court may order one of them to furnish the support provisionally subject to the right to claim from the other obligors the share due them  When two or more recipients at the same

time claim for support and the obligor does not have sufficient means to satisfy all claims: a. the order of liability provided by law shall be followed b. if the concurrent obligees should be the spouse and child subject to parental authority, the child shall be preferred PARENTAL AUTHORITY (PA) Rules as to the exercise of PA: 1. The father and the mother shall JOINTLY exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail UNLESS there is a judicial order to the contrary 2. If the child is illegitimate, parental authority is with the mother. Parental preference rule  the natural parents, who are of good character and who can reasonably provide for the child are ordinarily entitled to custody as against all persons Rule in case of legal separation of parents:  parental authority is exercised by the parent designated by the court. GENERAL RULE: No child under 7 years of age shall be separated from the mother. EXCEPTION: When the court finds compelling reason to order otherwise. NOTE: Paramount consideration in matters of custody of a child is the welfare and well-being of the child. (Tonog vs. CA) Persons Exercising Substitute PA: 1. surviving grandparent 2. oldest brother or sister over 21 years of age unless unfit or disqualified 3. actual custodian unless unfit or disqualified Persons Exercising Special PA: 1. school 2. administrators and teachers 3. individual, entity or institution engaged in child care NOTES:  Parental authority and responsibility are inalienable and may not be transferred and renounced except in cases authorized by law.  Parents may exercise parental authority

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over their child’s property Kinds of Properties of a Minor ADVENTITIOUS PROFECTITIOUS 1. earned or acquired 1. property given by by the child through the parents to the child his work or industry by for the latter to onerous or gratuitous administer title 2. owned by the child 3. child is also the usufructuary, but the child’s use of the property shall be secondary to the collective daily needs of the family 4. property administered by the parents Termination of PA PERMANENT 1. death of the parents 2. death of the child 3. emancipation of the child 4. subjected child to sexual abuse 2. owned by the parents 3. parents are the usufructuary

1. duty and right to make arrangement in funerals in accordance with Article 199, FC 2. the funeral shall be in keeping with the social position of the deceased 3. the funeral shall be in accordance with the expressed wishes of the deceased a. in the absence of the expressed wishes, his religious beliefs or affiliation shall determine b. in case of doubt, the persons in Article 199, FC shall decide 4. any person who disrepects the dead or allows the same shall be liable for damages Grounds for Change of First Name or Nickname under R.A. No. 9048 (An act authorizing City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar Without need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the Civil Code)) 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonour or extremely difficult to write or pronounce 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community 3. The change will avoid confusion NOTE: Please refer to Remedial Law Memory Aid for a comprehensive discussion of the procedural aspects of change of name.

4. property administered by the child

TEMPORARY 1. adoption of the child 2. appointment of a general guardian 3. judicial declaration of abandonment 4. final judgment divesting the parents of parental authority 5. judicial declaration of absence or incapacity of the parents exercising parental authority over the child Grounds for suspension of PA (CHOBAN) 1. conviction of a crime with the penalty of civil interdiction 2. harsh or cruel treatment against the child 3. orders, counsel and example which are corrupting, given by the person exercising authority 4. begging is compelled of the child 5. acts of lasciviousness, allowed for the child to be subjected to, or himself subjects the child to 6. negligence, which is culpable, committed by the person exercising authority FUNERALS GENERAL GUIDELINES

ABSENCE
DECLARATION OF ABSENCE WITHOUT WITH ADMINISTRATOR ADMINISTRATOR 2 years from the lapse 5 years from the lapse of time without news of time without news about the absentee or about the absentee or since the receipt of the since the receipt of the last news last news PRESUMPTION OF DEATH ORDINARY EXTRAORDINARY/ ABSENCE QUALIFIED ABSENCE

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a. 7 YEARS, person presumed dead for all purposes except for those of opening succession b. 10 YEARS, person presumed dead for purposes of opening succession except if he disappeared after the age of 75, in which case, a period of 5 years is sufficient c. 4 YEARS, person presumed dead for

For all purposes including those of opening succession, a period of 4 YEARS, and for purposes of remarriage of the spouse present, a period of 2 YEARS, is sufficient under the following circumstances: a. person on board a vessel lost during a sea voyage or an aeroplane which is

purposes remarriage of spouse present

of the

missing; period is counted from the loss of the vessel or aeroplane b. person in the armed forces who has taken part in war c. person in danger of death under other circumstances and his existence has not been known

PROPERTY
PROPERTY
 All things which are, or may be the object of appropriation 7. 8. 9. them permanently attached to the land, and forming a permanent part of it; the animals in those places are included; fertilizer actually used on a piece of land; mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake or coast; and contracts for public works, and servitudes and other real rights over immovable property

 1. 2. 3.

Requisites: (USA): utility substantivity or individuality appropriability

I. A. IMMOVABLE PROPERTY 1. land, buildings, roads and constructions of all kinds adhered to the soil; 2. trees, plants and growing fruits, while they are attached to the land or form an integral part of an immovable; 3. everything attached to an immovable in a fixed manner in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; 4. statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; 5. machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works; 6. animal houses, pigeon-houses, beehives, fishponds or breeding places of similar nature, in case their owner has placed or preserved them, with the intention to have

10.

 Categories: (DINA) 1. Real by nature – it cannot be carried from place to place (pars. 1 & 8, Art. 415, Civil Code) 2. Real by incorporation – attached to an immovable in a fixed manner to be an integral part thereof (pars. 1-3 Art. 415, Civil Code) 3. Real by destination – placed in a n immovable for the utility it gives to the activity carried thereon (pars. 4-7 and 9 Art. 415, Civil Code) 4. By analogy it is so classified by express provision of law (par. 10, Art. 415, Civil Code) B. MOVABLE PROPERTY 1. those movables susceptible of appropriation which are not included in the preceding article;

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2. real property which by any special provision of law is considered as personalty; 3. forces of nature which are brought under control of science; 4. in general, all things which can be transported from place to place without impairment of the real property to which they are fixed; 5. obligations and actions which have for their object movables or demandable sums; and 6. shares of stock of agricultural, commercial and industrial entities, although they have real estate. Tests: a) By exclusion: movables are everything not included in Art. 415. b) By description: an object is movable if it possesses: 1) Ability to change location 2) Without substantial injury to the immovable to which it is attached. Important Doctrines/principles on immovable and movable properties: a) 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, 48 O.G. 4374). b) Parties to a contract may by agreement treat as personal properties that which by nature would be real property; and it is a familiar phenomenon to see things classes as real property for purposes of taxation which on general principle might be considered personal property (Standard Oil Co. vs. Jaranillo, 44 Phil 631). c) For purposes of attachment and execution and for purposes of the Chattel Mortgage Law, ungathered products have the nature of personal property. (Sibal vs. Valdez, 50 Phil, 512). d) The human body, whether alive or dead, is neither real nor personal property, for it is not even property at all, in that it generally cannot be appropriated. Under certain conditions, the body of a person or parts thereof may be subject matter of a contract. (See RA No. 349, RA No. 7170, RA No. 7719). II. A. PROPERTY OF PUBLIC DOMINION  Concept: It is not owned by the state but pertains to the state, which, as territorial sovereign exercises certain juridical prerogatives over such property. The

ownership of such properties is in the social group, whether national, provincial or municipal.  Purpose: To serve the citizens and not the state as a juridical person.  Kinds: 1. Those intended for public use 2. Those which are not for public use but intended for public service 3. Those intended for the development of the national wealth  CHARACTERISTICS: 1. Outside the commerce of man 2. Inalienable. But when no longer needed for public use or service, may be declared patrimonial property. In Laurel vs Garcia (187 SCRA 797), the Supreme Court held that “whether or not the Roppongi and related properties will eventually be sold is a policy determination where both the President and Congress must concur”. 3. Cannot be acquired by prescription 4. Not subject to attachment or execution 5. Cannot be burdened with easements NOTE: They cannot be registered under the land registration law and be the subject of a Torrens title. The character of public property is not affected by possession or even a Torrens Title in favor of private persons. (Palanca vs. Commonwealth, 69 Phil. 449). B. PATRIMONIAL PROPERTY OF THE STATE  Property of the State owned by it in its private or proprietary capacity.  the state has the same rights over this kind of property as a private individual in relation to his own private property C. PROPERTY OF LOCAL GOVERNMENT UNITS (LGUs) 1. Property for public use – consist of roads, streets, squares, fountains, public waters, promenades and public works for public service paid for by the LGUs 2. Patrimonial Property – all other property possessed by LGUs without prejudice to provisions of special laws NOTE: In the case of Province of Zamboanga Del Norte vs. City of Zamboanga, the Supreme Court categorically stated that “this court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The classification

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of municipal property devoted for distinctly governmental purposes as public should prevail over the Civil Code in this particular case”. Here, the Law of Municipal Corporations was considered as a special law in the context of Article 424 of the NCC. PROPERTY OF PRIVATE OWNERSHIP refers to all property belonging to private persons either individually or collectively and those belonging to the State and any of its political subdivisions which are patrimonial in nature OWNERSHIP  The right to enjoy, dispose, and recover a thing without further limitations than those established by law or the will of the owner.  Rights included: 1. Right to enjoy: (PUFA) a) to possess (jus possidendi) b) to use (jus utendi) c) to the fruits (jus fruendi) accessions d) to abuse (jus abutendi) 2. Right to dispose: (DATE) a) to destroy b) to alienate c) to transform d) to encumber

by non user but only by adverse possession.  Limitations: 1. General limitations imposed by the State for its benefit 2. Specific limitations imposed by law 3. Limitations imposed by the party transmitting the property either by contract or by will 4. Limitations imposed by the owner himself 5. Inherent limitations arising from conflict with other rights De Facto case of Eminent Domain  expropriation resulting from the actions of nature. The owner loses his property in favor of the state without any compensation. Principle of Self-Help  right of the owner or lawful possessor to exclude any person from the enjoyment and disposal of the property by the use of such force as may be necessary to repel or prevent actual or threatened unlawful physical invasion or usurpation of his property.  Requisites: (RONA) 1. reasonable force 2. owner or lawful possessor 3. no delay 4. actual or threatened physical invasion or usurpation

and

3. Right to vindicate: (RP) a) pursuit b) recovery 4. Right to exclude: (ER) a) to enclose, fence and delimit b) to repel intrusions even with force Characteristics: (EGEIP) 1. Ownership is Elastic – power/s may be reduced and thereafter automatically recovered upon the cessation of the limiting rights. 2. General – the right to make use of all the possibilities or utility of the thing owned, except those attached to other real rights existing thereon. 3. Exclusive – there can only be one ownership over a thing at a time. There may be two or more owners but ONLY ONE ownership. 4. Independence – It exists without necessity of any other right 5. Perpetuity – ownership lasts as long as the thing exists. It cannot be extinguished

GENERAL RULE: A person cannot interfere with the right of ownership of another. EXCEPTION: Doctrine of Incomplete Privilege (Article 432)  Requisites: (ID) 1. Interference necessary 2. Damage to another much greater than damage to property
LEGAL REMEDIES TO RECOVER POSSESSION OF ONE’S PROPERTY 1. Personal property: Replevin  REPLEVIN - remedy when the complaint prays for the recovery of the possession of personal property. 2. Real Property: a. ACCION INTERDICTAL  Nature: summary action to recover physical or material possession only. It consists of the summary actions of: 1. Forcible entry

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 Action for recovery of material possession of real property when a person originally in possession was deprived thereof by force, intimidation, strategy, threat or stealth 2. Unlawful Detainer  Action for recovery of possession of any land or building by landlord, vendor, vendee, or other person against whom the possession of the same was unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract.

b. ACCION PUBLICIANA  Nature: Ordinary civil proceeding to recover the better right of possession, except in cases of forcible entry and unlawful detainer. The involved is not possession de facto but possession de jure. c. ACCION REIVINDICATORIA  Nature: action to recover real property based on ownership. Here, the object is the recovery of the dominion over the property as owner.  Requisites: 1. Identity of the Property 2. Plaintiff’s title to the property Surface Rights  The owner of parcel of land is the owner of its surface and everything under it.  The economic utility which such space or subsoil offers to the owner of the surface sets the limit of the owner’s right to the same. HIDDEN TREASURE  Definition: any hidden or unknown deposit of money, jewelry or other precious objects, the lawful ownership of which does not appear. GENERAL RULE: It belongs to the owner of the land, building or other property on which it is found. EXCEPTIONS: The finder is entitled to ½ provided: 1. Discovery was made on the property of another, or of the state or any of its political subdivisions; 2. The finding was made by chance; 3. The finder is not a co-owner of the property where it is found; 4. The finder is not a trespasser; 5. The finder is not an agent of the landowner; 6. The finder is not married under the absolute community or the conjugal partnership system (otherwise his share belongs to the community).

Focible Entry
As to when possession became unlawful Possession of the defendant is unlawful from the beginning as he acquires possession by Force, intimidation, strategy, threat or stealth No previous demand for the defendant to vacate is necessary

Unlawful Detainer
Possession is inceptively lawful but becomes illegal from the time defendant unlawfully withholds possession after the expiration or termination of his right thereto. Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease contract Plaintiff need not have been in prior physical possession

As to the necessity of demand

As to necessity of proof of prior physical possession

As to when the 1 year period is counted from

Plaintiff must prove that he was in prior physical possession of the premises until he was depreved thereof by the defendant 1 year period is generally counted from the date of actual entry on the land

1 year period is counted from the date of last demand or last letter of demand

ACCESSION
 The right by virtue of which the owner of a thing becomes the owner of everything that it may produce or which may be inseparably united or incorporated thereto, either naturally or artificially.

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 Classifications: 1. Accession Discreta – the right pertaining to the owner of a thing over everything produced thereby Kinds of Fruits a. natural fruits – spontaneous products of the soil and the young and other products of animals b. industrial fruits – those produced by lands of any kind through cultivation or labor c. civil fruits – rents of buildings, price of leases or lands and the amount of perpetual or life annuities or other similar income

Right of Accession Immovable Property NOTE: See TABLES

with

respect

to

GENERAL RULE: To the owner belongs the natural, industrial, and civil fruits. EXCEPTIONS: If the thing is: (PULA) 1. in possession of a possessor in good faith; 2. subject to a usufruct; 3. leased or pledged; or 4. in possession of an antichretic creditor
2. Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated or attached thereto either naturally or artificially; by external forces. a. With respect to real property i. accession industrial  building, planting or sowing ii. accession natural  alluvium, avulsion, change of river course, and formation of islands b. With respect to personal property i. adjunction or conjuction ii. commixtion or confusion iii specification Basic Principles: (GONE BAD) 1. He who is in good faith may be held responsible but not penalized. 2. To the owner of a thing belongs the extension or increase of such thing. 3. Bad faith of one party neutralizes the bad faith of the other. 4. There should be no unjust enrichment at the expense of others. 5. Bad faith involves liability for damages. 6. Accessory follows the principal. 7. Accession exists only if the incorporation is such that separation would either seriously damage the thing or diminish its value.

 Important Doctrines/Principles: a) Under Art 448, the landowner may not refuse both to pay for the building and to sell the land and instead seek to compel the owner of the building to remove the building from the land. He is entitled to such removal ONLY when, after having chosen to sell the land, the other party fails to pay for said land. (Ignacio vs. Hilario, 76 Phil. 605) b) Should no other arrangement be agreed upon, the owner of the land does not automatically become the owner of the improvement. (Filipinas Colleges, Inc. vs. Timbang, 106 Phil. 247) c) Article 448 is not applicable where a person constructs a house on his own land and then sells the land, not the building. (Coleongco vs. Regalado, 27 Phil 387) d) Article 448 does not apply to cases which are governed by other provisions of law such as co-ownership, usufruct, agency, lease, etc. e) The provision on indemnity in Art. 448 may be applied by analogy considering that the primary intent of the law is to avoid a state of forced co-ownership especially where the parties in the main agree that Articles 448 and 546 are applicable and indemnity for the improvements may be paid although they differ as to the basis of the indemnity. (Pecson vs CA 244 SCRA 407). ACCESSION NATURAL

1. Alluvion or alluvium – increment which
lands abutting rivers gradually receive as a result of the current of the waters.  Concept: it is the gradual deposit of sediment by the natural action of a current of fresh water (not sea water, the original identity of the deposit being lost.  Requisites: a) the deposit be gradual and imperceptible b) that it be made through the effects of the current of the water c) that the land where accretion takes place is adjacent to the banks of the river. NOTES:  The owners of the lands adjoining the banks

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of the river (riparian lands) shall own the accretion which they gradually receive. Accretion operates ipso jure. However, the additional area is not covered by a Torrens title and the riparian owner must register the additional area.

 Once the river bed has been abandoned,
the owners of the invaded land become owners of the abandoned bed to the extent provided by this article. No positive act is needed on their part, as it is subject thereto ipso jure from the moment the mode of acquisition becomes evident. It does not apply to cases where the river simply dries up because there are no persons whose lands are occupied by the waters of the river.

 Doctrines: a) Where the deposit is by sea water, it belongs to the state b) A gradual change of bed is also governed by the rules of alluvium (Canas vs. Tuason 5 Phil. 689)



4. Formation of Islands
RULES ON OWNERSHIP a. If formed by the sea: 1) within territorial waters - State 2) outside territorial waters – to the first occupant b. If formed in lakes, or navigable or floatable rivers - State c. If formed on non-navigable or nonfloatable rivers: 1) if nearer to one margin or bank – to the nearer reparian owner 2) if equidistant from both banks- to the reprian owners, by halves. NOTE: There is no accession when islands are formed by the branching of a river; the owner retains ownership of the isolated piece of land. Right of Accession with respect to movable property  Basic Principle: Accession exists only if separation is not feasible. Otherwise, separation may be demanded.  KINDS (accession movables): continua as to

2. Avulsion – the transfer of a known portion
of land from one tenement to another by the force of the current. The portion of land must be such that it can be identified as coming from a definite tenement.  Requisites: a) The segregation and transfer must be caused by the current of a river, creek or torrent. b) The segregation and transfer must be sudden or abrupt c) The portion of land transported must be known or identified NOTE: The owner must remove the transported portion within two years to retain ownership NOTE: Registration under the Torrens system does not protect the riparian owner against diminution of the area of his land through gradual changes in the course of adjoining stream (Payatas vs Tuazon). Alluvium 1. gradual and imperceptible 2. soil cannot be identified 3. belongs to the owner of the property to which it is attached 4. merely an attachment Avulsion 1. sudden or abrupt process 2. identifiable and verifiable 3. belongs to the owner from whose property it was detached 4. detachment followed by attachment

3. Change of course of rivers
 Requisites: a) There must be a natural change in the course of the waters of the river b) The change must be abrupt or sudden NOTES:

1. Adjunction  the union of two things belonging to different owners, in such a manner that they cannot be separated without injury, thereby forming a single object.  Requisites a) the two things must belong to different owners b) that they form a single object, or that their separation would impair their nature Kinds: a. inclusion or engraftment b. soldadura or soldering c. escritura or writing d. pintura or painting e. tejido or weaving

25

 Tests to determine principal: a. the “rule of importance and purpose b. that of greater value c. that of greater volume d. that of greater merits  Rules: a) Adjunction in good faith by either owner: GENERAL RULE: accessory follows the principal. EXCEPTIONS if the accessory is much more precious than the principal, the owner of the accessory may demand the separation even if the principal suffers some injury b) Adjunction in bad faith by the owner of the principal  option of the owner of the accessory: i) to recover the value plus damages ii) to demand separation plus damages c) Adjunction in bad faith by the owner of the accessory i) he loses the accessory ii) he is liable for damages  When separation of things allowed: a. separation without injury b. accessory is more precious than the principal c. owner of the principal acted in bad faith 2. Mixture  Union of materials where the components lose their identity.  Kinds: a. Commixtion – mixture of solids b. Confusion – mixture of liquids  Rules: a. By the will of both owners or by accident: each owner acquires an interest in proportion to the value of his material b. By one owner in good faith: apply rule(a) c. By one owner in bad faith: i) he loses all his rights to his own material ii) he is liable for damages 3. Specification  It is the transformation of another’s material by the application of labor. The material becomes a thing of different kind.  Labor is the principal

 Rules: a) Owner of the principal (worker) in good faith: i) maker acquires the new thing ii) he must indemnify the owner of the material EXCEPTION: if the material is more valuable than the resulting thing, the owner of the material has the option: 1) to acquire the work, indemnifying for the labor, or 2) to demand indemnity for the material b) owner of the principal (worker) in bad faith: the owner of the material has the option: i) to acquire the result without indemnity ii) to demand indemnity for the material plus damages c) Owner of the material in bad faith i) he loses the material ii) he is liable for damages

ADJUNCTION 1. Involves at least 2 things 2. Accessory follows the principal 3. Things joined retain their nature

MIXTURE Involves at least 2 things Coownership results Things mixed or confused may either retain or lose their respective natures

SPECIFICATION May involve one thing (or more) but form is changed Accessory follows the principal The new object retains or preserves the nature of the original object.

QUIETING OF TITLE  It is an equitable action in rem to determine the condition of the ownership or the rights to immovable property, and remove doubts thereon.  Requisites: 1. plaintiff must have a legal or equitable title to, or interest in the real property which is the subject matter of the action; 2. there must be a cloud in such title; 3. such cloud must be due to some instrument, record, claim, encumbrance or proceeding

26

which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and 4. plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to his benefit.  Prescriptive Period: 1. plaintiff in possession – imprescriptible 2. plaintiff not in possession – 10 (ordinary) or 30 years (extraordinary) Action to quiet title 1. Purpose 1. to put an end to troublesome litigation in respect to the property involved 2. remedial action involving a present adverse claim Action to remove a cloud on title 1. to remove a possible foundation for a future hostile claim 2. preventive action to prevent a future cloud on the title

Characteristics: plurality of subjects (the co-owners) a)there is a single object which is not materially divided b)there is no mutual representation by the co-owners c)it exist for the common enjoyment of the co-owners d)it has no distinct legal personality e)it is governed first of all by the contract of the parties; otherwise, by special legal provisions, and in default of such provisions, by the provisions of Title III on co-ownership Sources: 1. Law 2. Contract 3. Chance 4. Occupation 5. Succession 6. Testamentary disposition or donation inter vivos Co-ownership 1. Can be created without the formalities of a contract 2. Has no juridical or legal personality 3. Purpose is collective enjoyment of the thing 4. Co-owner can dispose of his shares without the consent of the others with the transferee automatically becoming a co-owner 5. There is no mutual representation 6. Distribution of profits must be proportional to the respective interests of the coowners 7. A co-ownership is not dissolved by the death or incapacity of a co-owner 8. no public instrument needed even if real property is the object of the co-ownership 9. An agreement to Partnership 1. Can be created only by contract, express or implied 2. Has juridical personality distinct from the partners 3. Purpose is to obtain profits 4. A partner, unless authorized cannot dispose of his share and substitute another as a partner in his place 5. A partner can generally bind the partnership 6. Distribution of profits is subject to the stipulation of the parties 7. Death or incapacity dissolves the partnership 8. May be made in any form except when real property is contributed 9. There may be

2. Nature of the action

 The action to quiet title does not apply: a) to questions involving interpretation of documents b) to mere written or oral assertions of claims; EXCEPT: i) if made in a legal proceeding ii) if it is being asserted that the instrument or entry in plaintiff’s favor is not what it purports to be c) to boundary disputes d) to deeds by strangers to the title UNLESS purporting to convey the property of the plaintiff e) to instruments invalid on their face f) where the validity of the instrument involves pure questions of law CO-OWNERSHIP  Definition: the right of common dominion which two or more persons have in a spiritual part of a thing which is not physically divided.  Concept: co-ownership exists where the ownership of a thing physically undivided pertains to more than one person.

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keep the thing undivided for a period of more than 10 years is void

agreement as to ant definite term without limit set by law

 Rules: 1. Rights of each co-owner as to the thing owned in common: USBRAP-LDP a) To use the thing owned in common  Limitations: i) use according to the purpose for which it was intended ii) interest of the co-ownership must not be prejudiced iii) other co-owners must not be prevented from using it according to their own rights b) To share in the benefits and charges in proportion to the interest of each. NOTE: Any stipulation to the contrary is void. c) To the benefits of prescription: prescription by one co-owner benefits all. d) Repairs and taxes: to compel the others to share in the expenses of preservation even if incurred without prior notice. e) Alterations: to oppose alterations made without the consent of all, even if beneficial. NOTES:  Alteration is an act by virtue of which a co-owner changes the thing from the state in which the others believe it should remain, or withdraws it from the use to which they desire it to be intended.  Expenses to improve or embellish are decided by the majority f) To protest against seriously prejudicial decisions of the majority g) Legal redemption: to be exercised within 30 days from written notice of sale of an undivided share of another co-owner to a stranger h) To defend the co-ownership’s interest in court i) To demand partition at any time  Partition is the division between 2 or more persons of real or personal property which they own in common so that each may enjoy and possess his

sole estate to the exclusion of and without interference from others GENERAL RULE: Partition is demandable by any of the co-owners as a matter of right at any time. EXCEPTIONS: 1) When there is a stipulation against it; but not to exceed 10 years. 2) When the condition of indivision is imposed by the donor or testator; but not to exceed 20 years. 3) When the legal nature of the community prevents partition. 4) When partition would render the thing unserviceable. 5) When partition is prohibited by law 6) When another co-owner has possessed the property as exclusive owner for a period sufficient to acquire it by prescription. 2. The following questions are governed by the majority of interests: a) Management  Minority may appeal to the court against the majority’s decision if the same is seriously prejudicial. b) Enjoyment c) Improvement or embellishment 3. Rights as to the ideal share of each coowner: a) Each has full ownership of his part and of his share of the fruits and benefits b) Right to substitute another person its enjoyment, EXCEPT when personal rights are involved c) Right to alienate, dispose or encumber d) Right to renounce part of his interest to reimburse necessary expenses incurred by another co-owner e) Transactions entered into by each coowner only affects his ideal share. EXTINGUISHMENT (CALSTEP) OF CO-OWNERSHIP consolidation or

1.
merger in one co-owner

2.

acquisitive prescription in favor of a third person or a co-owner who repudiates the co-ownership 3. loss or destruction of property co-owned 4. sale of property co-owned 5. termination of

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period agreed upon by the co-owners 6. expropriation 7. judicial or extrajudicial partition

more than 70% interest in the common areas are opposed to the continuation of the condominium regime; 5. When conditions for partition by sale set forth in the declaration of restrictions duly registered have been met.

CONDOMINIUM ACT (R.A. NO. 4726)
CONDOMINIUM  an interest in real property consisting of a separate interest in a unit in a residential, industrial or commercial building and an undivided interest in common, directly or indirectly, in the land on which it is located and in other common areas of the building.  Any transfer or conveyance of a unit or an apartment, office or store or other space therein, shall include transfer or conveyance of the undivided interest in the common areas or, in a proper case, the membership or shareholdings in the condominium corporation: provided, however, that where the common areas in the condominium project are held by the owners of separate units as co-owners thereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens or corporations at least 60% of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession. WATERS  Classification a) Waters public per se (water is the principal; the bed follows the character of the water (See Arts. 502 [1] and 502 [2]) b) Waters public or private according to their bed (water is accessory to bed) c) Waters public by special provision

POSSESSION  Concept: the material holding or control of a thing or the enjoyment of a right.  1. 2. 3.  1. 2. 3. 4. Requisites: occupancy, apprehension, or taking deliberate intention to possess by virtue of ones own right Degrees: possession without any title whatsoever possession with juridical title possession with just title sufficient to transfer ownership

GENERAL RULE: Common areas shall remain undivided, and there shall be no judicial partition thereof: EXCEPTIONS: 1. When the project has not been rebuilt or repaired substantially to its state prior to its damage or destruction 3 years after damage or destruction which rendered a material part thereof unfit for use; 2. When damage or destruction has rendered ½ or more of the units untenantable and that the condominium owners holding more than 30% interest in the common areas are opposed to restoration of the projects; 3. When the project has been in existence for more than 50 years, that it is obsolete and uneconomic, and the condominium owners holding in aggregate more than 50% interest in the common areas are opposed to restoration, remodeling or modernizing; 4. When the project or a material part thereof has been condemned or expropriated and the project is no longer viable, or that the condominium owners holding in aggregate

possession with a title in fee simple

 Classes: In ones own name – where possessor claims the thing for himself a) In the name of another – for whom the thing is held by the possessor b) In the concept of owner – possessor of the thing or right , by his actions, is considered or is believed by other people as the owner, regardless of the good or bad faith of the possessor c) In the concept of holder – possessor holds it merely to keep or enjoy it, the ownership pertaining to another person; possessor acknowledges in another a superior right which he believes to be ownership. d) In good faith – possessor is not aware that there is in his title or mode of acquisition a defect that invalidates it  Requisites: 1. Ostensible title or mode of acquisition 2. Vice or defect in the title

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3. Possessor is ignorant of the vice or defect and must have an honest belief that the thing belongs to him e) In bad faith – possessor is aware of the invalidating defect in his own title.  1. 2. 3. Presumptions in favor of possessor: of good faith of continuity of initial good faith of enjoyment in the same character in which possession was acquired until the contrary is proved 4. of non-interruption in favor of the present possessor 5. of continuous possession by the one who recovers possession of which he was wrongfully deprived 6. of extension of possession of real property to all movables contained therein  Object of possession: GENERAL RULE: All things susceptible of being appropriated EXCEPTIONS: 1. Res communes 2. Property of public dominion 3. Discontinuous servitudes 4. Non-apparent servitudes

thered b. Cultivation Expenses of gathered fruits c. Fruits pending and charges d. Production expenses of pending fruits

sor b. not reimbursed to possessor c. prorated according to time d. indemnity pro rata to possessor (owner’s option) i. in money, or ii. by allowing full cultivation and gathering of all fruits e. reimbursed to possessor; retention f. reimbursed to possessor (owner’s option) i. initial cost ii. plus value  may remove if no reimbursement, and no damage is caused to the principal by the removal g. reimbursement at owner’s option: i. removal if no injury, or ii. cost without removal h. taxes and charges i. charged to owner ii. charged to possessor iii. prorated i. no reimbursement j. only if acting with fraudulent intent or negligence, b. reimbursed to possessor c. to owner d. no indemnity

e. Necessary expenses f.. Useful expenses

and

rights

e. reimbursed to possessor; no retention f. no reimbursement

Acquisition of possession:  Manner 1. Material occupancy of the thing 2. Subjection to the action of our will 3. Proper acts and legal formalities established for acquiring such right. Conflicts between several claimants: GENERAL RULE: Possession cannot be recognized in two different personalities except in case of co-possession when there is no conflict  Criteria in case of dispute: 1. present/actual possessor shall be preferred 2. if there are two possessors, the one longer in possession 3. if the dates of possession are the same, the one with a title 4. if all the above are equal, the fact of possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit Subject a. Fruits gaPossessor in good faith a. to possesPossessor in bad faith a. to owner

g. Ornamental expenses

g. owner’s option: i. removal, or ii. value at time of recovery h. taxes and charges i. charged to owner ii. charged to owner iii. to owner i. no reimbursement j. liable in every case

h. Taxes and charges i. on capital ii. on fruits iii. charges i. Improvements no longer existing j. Liability for accidental loss or deterioration

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after summons k. Improve- k. to owner or k. to owner or ments due to lawful lawful time or possessor possessor nature Possession of movables  Possession of movables in good faith is equivalent to title.  Requisites: a) possession is in good faith b) the owner has voluntarily parted with the possession of the thing c) possessor is in the concept of owner One who has lost or has been unlawfully deprived of it , may recover it from whomsoever possesses it, ordinarily, without reimbursement.  Doctrines: a) owner of the thing must prove (1) ownership of the thing and (2) loss or unlawful deprivation; or bad faith of the possessor b) Where the owner acts negligently or voluntarily parts with the thing owned, he cannot recover it from the possessor c) The owner may recover the movable in case of loss or involuntary deprivation; but must reimburse the price paid if possessor acquired the thing in good faith and at a public sale. Loss of possession: 1. By the will of the possessor a) Abandonment b) Transfer or conveyance 2. Against the will of the possessor a) Eminent domain b) Acquisitive prescription c) Judicial decree in favor of better right d) Possession of another for more than one year NOTE: this refers to possession de facto where the possessor loses the right to a summary action; but he may still bring action publiciana or reivindicatoria e) By reason of the object i. destruction or total loss of the things ii. withdrawal from commerce 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.  Characteristics: a. Real right

b. Of temporary duration c. To derive all advantages from the thing due to normal exploitation d. may be constituted on real or personal property, consumable or nonconsumable, tangible or intangible, the ownership of which is vested in another e. transmissible

GENERAL RULE: usufructuary is bound to preserve the form and substance of the thing in usufruct. EXCEPTION: Abnormal usufruct whereby the law or the will of the parties may allow the modification of the substance of the thing.
Usufruct 1. Always a real right 2. Person creating the usufruct should be the owner or his duly authorized agent 3. May be created by law, by contract, by will of the testator, or by prescription 4. As a rule, usufruct covers all the fruits and all the uses and benefits of the entire property 5. Involves a more or less passive owner who allows the usufructuary to enjoy the object given in usufruct 6. Pays for ordinary repairs and taxes on the fruits Lease 1.Generally a personal right 2. Lessor may not be the owner 3.Generally created by contract 4.Lease generally refers to uses only

5. Lease involves a more active owner or lessor who makes the lessee to enjoy 6.Lessee is not generally under obligation to undertake repairs or pay taxes

Special Usufructs a) of pension or income (Art 570) b) of property owned in common (Art. 582) c) of cattle (livestock) (Art. 591) d) on vineyards and woodlands (Art. 575-576) e) on a right of action (Art. 578) f) on mortgaged property (Art. 600) g) over the entire patrimony (Art. 598) h) over things which gradually deteriorate (Art. 573) i) of consumable property (Art 574) Rights of the Usufructuary 1.As to the thing and its fruits

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a. To receive and benefit from the fruits b. To enjoy any increase through accessions and servitudes c. To the half of the hidden treasure he accidentally finds d. To lease the thing, generally, for the same or shorter period as the usufruct. e. To improve the thing without altering its form and substance f. Right to set-off the improvements he may have made on the property against any damage to the same g. To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital h. To collect reimbursements from the owner for indispensable extraordinary repairs, taxes on the capital he advanced, and damages caused to him. i. To remove improvements made by him if the same will not injure the property 2. As to the usufruct itself a. To mortgage the right of usufruct except parental usufruct b. To alienate the usufruct Obligations of the usufructuary: 1. Before exercising the usufruct: a. To make an inventory of the property b. To give a bond, EXCEPT 1) when no prejudice would result 2) when the usufruct is reserved by the donor or parents 3) in cases of caucion juratoria where the usufructuary, being unable to file the required bond or security, files a verified petition in the proper court asking for the delivery of the house and furniture necessary for himself and his family without any bond or security.  takes an oath to take care of the things and restore them  property cannot be alienated or encumbered or leased because this would mean that the usufructuary does not need it. NOTE: Effects of failure to post bond: 1. owner shall have the following options: a. receivership of realty, sale of movables, deposit of securities, or investment of money; OR b. retention of the property as administrator 2. the net product shall be delivered to the usufructuary 3. usufructuary cannot collect credits due

or make investments of the capital without the consent of the owner or of the court until the bond is given. 2. During the usufruct: a. To take care of the property b. To replace with the young thereof animals that die or are lost in certain cases when the usufruct is constituted on flock or herd of livestock c. To make ordinary repairs d. To notify the owner of urgent extraordinary repairs e. To permit works and improvements by the naked owner not prejudicial to the usufruct f. To pay annual taxes and charges on the fruits g. To pay interest on taxes on capital paid by the naked owner h. To pay debts when the usufruct is constituted on the whole patrimony i. To secure the naked owner’s or court’s approval to collect credits in certain cases j. To notify the owner of any prejudicial act committed by third persons k. To pay for court expenses and costs regarding usufruct. 3. At the termination of the usufruct: a. To return the thing in usufruct to the owner unless there is a right of retention b. To pay legal interest on the amount spent by the owner for extraordinary repairs or taxes on the capital c. To indemnify the owner for any losses due to his negligence or of his transferees Extinguishment of Usufruct: (PT2DERM) 1. Prescription 2. Termination of right of the person constituting the usufruct 3. Total loss of the thing 4. Death of the usufructuary, unless contrary intention appears 5. Expiration of the period or fulfillment of the resolutory condition 6. Renunciation of the usufructuary 7. Merger of the usufruct and ownership in the same person EASEMENT OR SERVITUDE  Encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another

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immovable belonging to a different owner.

 Concept: it is a real right, constituted on
the corporeal immovable property of another, by virtue of which the owner of the latter has to refrain from doing or must allow something to be done on his property, for the benefit of another person or tenement.  Characteristics: a) It is a real right but will affect third persons only when duly registered b) It is enjoyed over another immovable, never on one’s own property c) It involves two neighboring estates (in case of real easements) d) It is inseparable from the estate to which it is attached, and, therefore, cannot be alienated independently of the estate e) It is indivisible for it is not affected by the division of the estate between two or more persons f) It is a right limited by the needs of the dominant owner or estate, without possession g) It cannot consist in the doing of an act unless the act is accessory in relation to a real easement h) It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant owner; and, therefore, it is not presumed  Classification: 1. As to its exercise: a) Continuous Easements – those the use of which is, or may be, incessant without the intervention of any act of man b) Discontinuous Easements – those which are used at intervals and depend upon the acts of man 2. As to the indication of their existence: a) Apparent Easements – those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same b) Non-apparent Easements – those which show no external indication of their existence 3. As to duty of servient owner a) Positive – the servient owner must allow something to be done in his property or do it himself. These are

called servitudes of intrusion and or/service” b) Negative – the servient owner must refrain from doing something which he could lawfully do if the easement did not exist Easement 1. Real right, whether registered or not Lease Real right only when it is registered, or when its subject matter is real property and the duration exceeds one year May involve either real or personal Limited right to both the possession and use of another’s property Usufruct May involve either real or personal property Includes all the uses and the fruits of the property Involves a right of possession in an immovable or immovable Extinguished by the death of the usufructuary

2. Imposed only on real property 3. There is a limited right to the use of real property of another but without the right of possession Easement 1. Imposed only on real property 2. Limited to particular or specific use of the servient estate 3. A non-possessory right over an immovable 4. Not extinguished by the death of the dominant owner

 Modes of Acquisition: (PDFAT) 1. by prescription of 10 years (continuous and apparent easements) 2. by deed of recognition 3. by final judgment 4. by apparent sign established by the owner of two adjoining estates 5. by title Dominant Owner  Rights 1. To exercise all the rights necessary for the use of the easement 2. To make on the servient estate all the works necessary for the use and preservation of the servitude 3. To renounce the easement if he desires to exempt himself from contribution to necessary expenses

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4. To ask for mandatory injunction to prevent impairment of his use of the easement  Obligations: 1. Cannot render the easement or render it more burdensome 2. Notify the servient owner of works necessary for the use and preservation of the servitude 3. Choose the most convenient time and manner in making the necessary works as to cause the least inconvenience to the servient owner 4. Contribute to the necessary expenses if there are several dominant estates Servient Owner  Rights: 1. To retain ownership and possession of the servient estate 2. To make use of the easement, unless there is agreement to the contrary 3. To change the place or manner of the easement, provided it be equally convenient  Obligations: 1. Cannot impair the use of the easement 2. Contribute to the necessary expenses in case he uses the easement, unless there is an agreement to the contrary Extinguishment of Easements: (REMAIN BREW) 1. Redemption agreed upon 2. Expiration of the term or fulfillment of the resolutory condition 3. Merger of ownership of the dominant and servient estate 4. Annulment of the title to the servitude 5. Permanent Impossibility to use the easement 6. Non-user for 10 years a. discontinuous: counted from the day they ceased to be used b. continuous: counted from the day an act adverse to the exercise takes place 7. Bad condition - when either or both estates fall into such a condition that the easement could not be used 8. Resolution of the right to create the servitude, i.e. in case of pacto de retro, when the property is redeemed

9. Expropriation of the servient estate 10. Waiver by the dominant owner
EASEMENT FOR WATERING CATTLE  This is really a combined easement for drawing of water and right of way  Requisites: a) must be imposed for reasons of public use b) must be in favor of a town or village c) indemnity must be paid EASEMENT OF AQUEDUCT  The right arising from a forced easement by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow.  Character: apparent and continuous  Requisites: a) dominant owner must prove that he has the capacity to dispose of the water b) that the water is sufficient for the intended use c) that the course is most convenient, and least onerous to the 3rd person d) payment of indemnity RIGHT OF WAY  The right granted to the owner of an estate which is surrounded by other estates belonging to other persons and without an adequate outlet to a public highway to demand that he be allowed a passageway throughout such neighboring estates after payment of proper indemnity  Requisites: 1. Claimant must be an owner of enclosed immovable or one with real right 2. There must be no adequate outlet to a public highway 3. Right of way must be absolutely necessary 4. Isolation must not be due to the claimant’s own act 5. Easement must be established at the point least prejudicial to the servient estate 6. Payment of proper indemnity

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 it is the needs of the dominant property
which ultimately determine the width of the passage, and these needs may vary from time to time (Encarnacion vs CA, 195 SCRA 72).  Special cause of extinction: the opening of a public road, or joining the dominant tenement to another with exit on a public road. NOTE: the extinction in NOT automatic. There must be a demand for extinction coupled with tender of indemnity by the servient owner. PARTY WALL  a common wall which separates 2 estates built by common agreement at the dividing line such that it occupies a portion of both estates on equal parts. Party Wall 1. Shares of parties cannot be physically segregated but they can be physically identified Co-ownership Shares of the coowners can be divided and separated physically but before such division, a coowner cannot point to any definite portion of the property as belonging to him None of the co-owners may use the community property for his exclusive benefit Partial renunciation is allowed

they cancel each other  Rights of part owners: 1. to make use of the wall in proportion to their respective interests, resting buildings on it or inserting beams up to one-half of the wall’s thickness 2. to increase the height of the wall a. at his expense b. upon payment of proper indemnity c. to acquire half interest in any increase of thickness or height, paying a proportionate share in the cost of the work and of the land covered by the increase  Obligations of each part-owners: 1. to contribute proportionately to the repair and maintenance unless he renounces his part-ownership 2. if one part owner raises the height of the wall, he must: a. bear the cost of maintenance of the additions b. bear the increased expenses of preservation c. bear the cost of construction d. give additional land, if necessary, to thicken the wall LIGHT AND VIEW 1. Easement of Light (jus luminum) - right to admit light from the neighboring estate by virtue of the opening of a window or the making of certain openings.  Requisites: a. opening must not be greater than 30 centimeters squared, made on the ceiling or on the wall; and b. there must be an iron grating 2. Easement of view (jus prospectus) – the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or work which would obstruct such view or make the same difficult. It necessarily includes easement of light Restrictions on openings in one’s own wall when contiguous (less than 2m) to another’s tenement: 1. it cannot exceed 1 foot sq. (30 cm each side) 2. openings must be at the height of the joists, near the ceiling (Choco vs Santamaria, 21 Phil 132) 3. the abutting owner may:

2. No limitation as to use of the party wall for exclusive benefit of a party 3. Owner may free himself from contributing to the cost of repairs and constructiobn of a party wall by renouncing all his rights thereto

 Presumptions of existence (juris tantum): 1. in adjoining walls of buildings, up to common elevation 2. in dividing walls of gardens and yards (urban) 3. in dividing fences, walls and live hedges of rural tenements 4. in ditches or drains between tenements  Rebuttal of presumption: 1. title 2. by contrary proof: 3. by signs contrary to the existence of the servitude (Arts. 660 & 661) NOTE: if the signs are contradictory,

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a. close the openings if the wall becomes a party wall b. block the light by building or erecting his own wall unless a servitude is acquired by title or prescription c. ask for the reduction of the opening to the proper size Restrictions as to views 1. Direct views: the distance of 2 METERS between the wall and the boundary must be observed 2. Oblique views: (walls perpendicular or at an angle to the boundary line) must not be less than 60cm from the boundary line to the nearest edge of the window NOTE: Any stipulation permitting lesser distances are void. Modes of acquisition 1. by title 2. by prescription a. positive – counted from the time of the opening of the window, if it is through a party wall b. negative – counted from the formal prohibition on the servient owner. NOTE: mere non-observance of distances prescribed by Art. 670 without formal prohibition, does not give rise to prescription VOLUNTARY EASEMENTS  Constituted by the will of the parties or of a testator.  The owner possessing capacity to encumber property may constitute voluntary servitude. If there are various owners, ALL must consent; but consent once given is not revocable  Voluntary easements are established in favor of: 1. predial servitudes: a. for the owner of the dominant estate b. for any other person having any juridical relation with the dominant estate, if the owner ratifies it. 2. personal servitudes: for anyone capacitated to accept. NUISANCE  Any act, omission, establishment, business or condition of property or anything else which: (ISAHO) 1. Injures/endangers the health or safety of others; 2. Shocks, defies or disregards decency or

3. 4. 5.

morality; Annoys or offends the senses; Hinders or impairs the use of property; or Obstructs or interferes with the free passage to any public highway or street, or body of water.

 Classes: 1. Per se – nuisance at all times and under all circumstances regardless of location and surrounding. 2. Per accidens – nuisance by reason of circumstances, location, or surroundings. 3. Public – affects the community or a considerable number of persons. 4. Private – affects only a person or a small number of persons. Doctrine of Attractive Nuisance:  One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. Remedies against public nuisance: (PCE) 1. Prosecution under the RPC or local ordinance 2. Civil Action 3. Extrajudicial Abatement Remedies against private nuisance: (CE) 1. Civil Action 2. Extrajudicial Abatement Extrajudicial Abatement  Requisites: 1. nuisance must be specially injurious to the person affected; 2. no breach of peace or unnecessary injury must be committed; 3. prior demand; 4. prior demand has been rejected; 5. approval by district health officer and assistance of local police; and 6. value of destruction does not exceed P3,000. THEORY OF MODE AND TITLE

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 MODE is the specific cause which gives rise
to them, as the result of the presence of a special condition of things, of the aptitude and intent of persons, and of compliance with the conditions established by law. This is the proximate cause of the acquisition. TITLE is the juridical justification for the acquisition or a transfer of ownership or other real right. This is the remote cause of the acquisition.



escaped from its owner, under certain conditions 6. catching of domesticated animals that have escaped from their owners, under certain conditions 7. catching of pigeons without fraud or artifice 8. transfer of fish to another breeding place without fraud or artifice TRADITION/DELIVERY  a mode of acquiring ownership as a consequence of certain contracts, by virtue of which, the object is placed in the control and possession of the transferee, actually or constructively.  Kinds: 1. Real Tradition - actual delivery 2. Constructive Tradition a. traditio symbolica – parties make use of a token or symbol to represent the thing delivered b. traditio longa manu – by mere consent of the parties if the thing sold cannot be transferred to the possession of the vendee at the time of the sale c. traditio brevi manu – when the vendee already has possession of the thing sold by virtue of another title d. traditio constitutum possessorium – when the vendor continues in possession of the thing sold not as owner but in some other capacity 3. Quasi-tradition – exercise of the right of the grantee with the consent of the grantor 4. Tradicion por ministerio de la ley – delivery by operation of law 6. Tradition by public instrument  Requisites: 1. right transmitted should have previously existed in the patrimony of the grantor 2. transmission should be by just title 3. grantor and grantee should have intention and capacity to transmit and acquire 4. transmission should be manifested by some act which should be physical, symbolical or legal

DIFFERENT MODES (and TITLES) of ACQUIRING OWNERSHIP Modes of acquiring Titles of acquiring ownership ownership A. Original Modes 1. Occupation 1. Condition of being without known owner 2. Work which includes 2. Creation, discovery Intellectual creation or invention B. Derivative modes 3. Law 3. Existence of required conditions 4. Tradition 5. Donation 6. Prescription 7. Succession 4. Contract of the parties 5. Contract of the parties 6. Possession in the concept of owner 7. Death

OCCUPATION  a mode of acquiring ownership by the seizure of things corporeal which have no owner, with the intention of acquiring them, and according the rules laid down by law.  Requisites: 1. there must be seizure of a thing 2. the thing seized must be corporeal personal property 3. the thing must be susceptible of appropriation by nature 4. the thing must be without an owner 5. there must be an intention to appropriate  Specific instances: 1. hunting and fishing 2. finding of movables which do not have an owner 3. finding of abandoned movables 4. finding of hidden treasure 5. catching of swarm of bees that has

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DONATION  an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it  Requisites: CIDA 1. donor must have capacity to make the donation 2. he must have donative intent (animus donandi) 3. there must be delivery 4. donee must accept or consent to the donation  Essential features/elements of a true donation: a) Alienation of property by the donor during his lifetime, which is accepted b) Irrevocability by the donor c) Intention to benefit the donee (animus donandi) d) Consequent impoverishment of the donor (diminution of his assets)  Classification: 1. As to effectivity: a. inter vivos b. mortis causa c. propter nuptias 2. As to perfection/extinguishment: a. pure b. with a condition c. with a term 3. As to consideration: a. simple - gratuitous b. remuneratory or compensatory – made on account of donee’s merits c. modal – imposes upon the donee a burden which is less than the value of the thing donated Donation Inter Vivos 1. Takes effect independently of the donor’s death 2. Title conveyed to the donee before the donor’s death 3. Valid if donor survives donee 4. Generally irrevocable during donor’s lifetime 5. Must comply with the formalities required by Arts. 748 and 749 Donation Mortis Causa Takes effect upon the death of the donor Title conveyed donor’s death upon

of the Code Of wills Donations prohibited by law: 1. Made by persons guilty of adultery or concubinage at the time of donation; 2. Made between persons found guilty of the same criminal offense in consideration thereof; 3. Made to a public officer or his/her spouse, descendants or ascendants in consideration of his/her office; 4. Made to the priest who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period; 5. Made to relatives of such priest, etc. within the 4th degree, or to the church to which such priest belongs; 6. Made by a ward to the guardian before the approval of accounts; 7. Made to an attesting witness to the execution of donation, if there is any, or to the spouse, parents, or children, or anyone claiming under them. 8. Made to a physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness; 9. Made by individuals, associations or corporations not permitted by law to make donations; and 10. Made by spouses to each other during the marriage or to persons of whom the other spouse is a presumptive heir. Forms of donations: 1. Donations of movable property: a. With simultaneous delivery of property donated: i. it may be oral/written – P5,000 or less; ii. if value exceeds P5,000 – written in public or private document b. Without simultaneous delivery:  the donation and acceptance must be written in a public or private instrument, regardless of value 2. Donation of immovable property: a. must be in a public instrument specifying the property donated and the burdens assumed by donee, regardless of value b. acceptance must be either: i. in the same instrument; or ii. in another public instrument, notified to the donor in authentic

Void if donor survives donee Always revocable Must comply with the formalities required by law for the execution

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form, and noted in both deeds NOTE: Expression of gratitude to the donor without express acceptance was held a sufficient acceptance (Cuevas vs Cuevas) LIMITATIONS ON DONATION OF PROPERTY 1. Future property cannot be donated. 2. Present property that can be donated: a) if the donor has forced heirs: he cannot give or receive by donation more than he can give of receive by will b) if the donor has no forced heirs: donation may include all present property provided he reserves in full ownership or in usufruct: 1) the amount necessary to support him, and 2) those relatives entitled to support from him 3) property sufficient to pay the donor’s debt contracted prior to the donation. 3. Donation should not prejudice creditors 4. Donee must reserve sufficient means for his support and for his relatives which are entitled to be supported by him. EFFECTS OF DONATION 1. donee may demand the delivery of the thing donated 2. donee is subrogated to the rights of the donor in the property 3. in donations propter nuptias, the donor must release the property from encumbrances, except servitudes 4. donor’s warranty exists if a. expressed b. donation is propter nuptias c. donation is onerous d. donor is in bad faith 5. when the donation is made to several donees jointly, they are entitled to equal portions, without accretion, unless the contrary is stipulated Payment of the donor’s debt by the donee 1. If there is express stipulation: the donee is to pay only debts contracted before the donation, if not otherwise specified; but the donee answers only up to the value of the property donated, if no stipulation is made to the contrary 2. If there is no stipulation: the donee is answerable for the debts of the donor only in case of fraud against creditors.

ACTS OF INGRATITUDE 1. If the donee should commit some offense against the person, honor or property of the donor, or of his wife or children under his parental authority 2. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the donee himself, his wife or children under his authority 3. Refusal to support the donor PRESCRIPTION  Kinds: 2. Acquisitive prescription - one acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. a. Ordinary acquisitive prescription: requires possession of things in good faith and with just title for the time fixed by law b. Extraordinary acquisitive prescription: acquisition of ownership and other real rights without need of title or of good faith or any other condition  Requisites: 1) capacity to acquire by prescription 2) a thing capable of acquisition by prescription 3) possession of thing under certain conditions 4) lapse of time provided by law 2. Extinctive Prescription – rights and actions are lost through the lapse of time in the manner and under the conditions laid down by law. Acquisitive Extinctive prescription prescription 1. relationship between 1. one does not look to the occupant and the the act of the possessor land in terms of but to the neglect of the possession is capable owner of producing legal consequences; it is the possessor who is the actor 2. requires possession 2. requires inaction of by a claimant who is not the owner or neglect of the owner one with a right to bring his action 3. applicable to 3. applies to all kinds of ownership and other rights, whether real or real rights personal 4. vests ownership or 4. produces the

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other real rights in the occupant 5. results in the acquisition of ownership or other real rights in a person as well as the loss of said ownership or real rights in another 6. can be proven under the general issue without its being affirmatively pleaded

extinction of rights or bars a right of action 5. results in the loss of a real or personal right, or bars the cause of action to enforce said right 6. should be affirmatively pleaded and proved to bar the action or claim of the adverse party

b) 30 YEARS

Period of Prescription Movables Immovables 1. Good Faith 4 years 10 years 2. Bad Faith 8 years 30 years Rules on Computation of Period: 1. The present possessor may complete the period necessary for prescription by tacking his possession to that of his grantor or predecessor 2. It is presumed that the present possessor who was also the possessor at a previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary 3. The first day shall be excluded and the last day included Persons Against Whom Prescription runs: 1. Minors and other incapacitated persons who have parents, guardians or other legal representatives 2. Absentees who have administrators 3. Persons living abroad who have managers or administrators 4. Juridical persons, except the state and its subdivision Persons against whom prescription does NOT run: 1. Between husband and wife, even though there be separation of property agreed upon in the marriage settlements or by judicial decree. 2. Between parents and children, during the minority or insanity of the latter 3. Between guardian and ward during the continuance of the guardianship PRESCRIPTION OF ACTIONS
Prescriptive period
a) Imprescriptible

c) 10 YEARS

d) 8 YEARS

e) 6 YEARS

f) 5 YEARS

or void contract  to quiet title  to demand a right of way  to bring an action for abatement of public nuisance  to demand partition in co-ownership  to enforce a trust  probate of a will  to recover possession of a registered land under the Land Registration Act by the registered owner  real actions over immovables (but not foreclosure) without prejudice to the acquisition of ownership or real rights by acquisitive prescription  actions upon a written contract  actions upon an obligation created by law  actions upon a judgment from the time judgment becomes final  actions among co-heirs to enforce warranty against eviction in partition  Mortgage action  action to recover movables without prejudice to acquisition of title for a shorter period or to the possessors title under Arts. 559, 1505 and 1133  actions upon an oral (verbal) contract  actions upon a quasicontract  action for annulment of marriages (except on the ground of insanity) and for legal separation counted from the occurrence of the cause  actions against the coheirs for warranty of solvency the debtor in credits assigned in partition  action for the declaration of the incapacity of an heir (devisee or legatee) to succeed)  all other actions whose periods are not fixed by law, counted from the time the right of action accrues

Actions
 to declare an inexistent

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g) 4 YEARS

h) 3 YEARS

i) 2 YEARS

j) 1 YEAR

k) 6 MONTHS

l) 40 DAYS

 action to revoke donations due to noncompliance of conditions  action to rescind partition of deceased’s estate on account of lesion  action to claim rescission of contracts  annulment of contracts for vice of consent  actions upon a quasidelict  action to revoke or reduce donations based on birth, appearance or adoption of a child  actions upon an injury to the rights of the plaintiff (not arising from contract)  actions under the eight hour labor law  actions to recover losses in gambling money claims as a consequence of employeremployee relationship  action to impugn legitimacy of a child if the husband or his heirs reside abroad  action to impugn legitimacy of a child if the husband or his heirs are not residing in the city or municipality of birth  action to impugn legitimacy of a child if the husband or his heirs are residing in the city or municipality of birth  forcible entry and unlawful detainer  Defamation  Revocation of donation on the ground of ingratitude  Rescission or for damages if immovable is sold with an apparent burdens or servitude  action for warranty of solvency in assignment of credits  actions for loss or damage to goods under the COGSA  actions for warranty against hidden defects or encumbrances over the thing sold  redhibitory action based on faults or defects of animals

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