EASEMENTS,
NUISANCE, MODES OF ACQUIRING OWNERSHIP AND DONATION
(REVISED,
02 SEPTEMBER 2017
Part II)
ATTY EDUARDO T. REYES, III
(For Fourth Year Section-A,
University of San Agustin School of Law,
General Luna Street, Iloilo City,
School Year 2017-2018 Ist Semester)
SECTION 5
Easement of Light and View
Easement of Light and View
Article
667. No
part-owner may, without the consent of the others, open through the party wall
any window or aperture of any kind. (580)
Article
668. The
period of prescription for the acquisition of an easement of light and view
shall be counted:
(1) From
the time of the opening of the window, if it is through a party wall; or
(2) From
the time of the formal prohibition upon the proprietor of the adjoining land or
tenement, if the window is through a wall on the dominant estate. (n)
Comment:
1. Easement of light and view is
POSITIVE if window is through a party wall and NEGATIVE if on one’s own wall.
(However, even if the window is on one’s own wall, still the easement would be
positive if the window is on a balcony, or projection extending over into the
adjoining land, see TS, Jan. 8, 1908; Fabie v. Lichauco, 11 Phil. 14).
Article
669. When
the distances in article 670 are not observed, the owner of a wall which is not
party wall, adjoining a tenement or piece of land belonging to another, can
make in it openings to admit light at the height of the ceiling joints or
immediately under the ceiling, and of the size of thirty centimeters square,
and, in every case, with an iron grating imbedded in the wall and with a wire
screen.
Nevertheless,
the owner of the tenement or property adjoining the wall in which the openings
are made can close them should he acquire part-ownership thereof, if there be
no stipulation to the contrary.
He can
also obstruct them by constructing a building on his land or by raising a wall
thereon contiguous to that having such openings, unless an easement of light
has been acquired. (581a)
Article
670. No
windows, apertures, balconies, or other similar projections which afford a
direct view upon or towards an adjoining land or tenement can be made, without
leaving a distance of two meters between the wall in which they are made and
such contiguous property.
Neither
can side or oblique views upon or towards such conterminous property be had,
unless there be a distance of sixty centimeters.
The
non-observance of these distances does not give rise to prescription. (582a)
Comment:
1. Does not refer to the right to demand Closure because such right prescribes. Instead, it refers to
IMPRESCRIPTIBILITY in the absence of a notarial prohibition. Building right on boundary line
is ALLOWED provided that NO REGULAR WINDOWS ARE OPENED.
Article
671. The
distance referred to in the preceding article shall be measured in cases of
direct views from the outer line of the wall when the openings do not project,
from the outer line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583)
Article
672. The
provisions of article 670 are not applicable to buildings separated by a public
way or alley, which is not less than three meters wide, subject to special
regulations and local ordinances. (584a)
Article
673. Whenever
by any title a right has been acquired to have direct views, balconies or
belvederes overlooking an adjoining property, the owner of the servient estate
cannot build thereon at less than a distance of three meters to be measured in
the manner provided in article 671. Any stipulation permitting distances less
than those prescribed in article 670 is void. (585a)
SECTION 6
Drainage of Buildings
Drainage of Buildings
Article
674. The
owner of a building shall be obliged to construct its roof or covering in such
manner that the rain water shall fall on his own land or on a street or public
place, and not on the land of his neighbor, even though the adjacent land may
belong to two or more persons, one of whom is the owner of the roof. Even if it
should fall on his own land, the owner shall be obliged to collect the water in
such a way as not to cause damage to the adjacent land or tenement. (586a)
Article
675. The
owner of a tenement or a piece of land, subject to the easement of receiving
water falling from roofs, may build in such manner as to receive the water upon
his own roof or give it another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any nuisance or damage whatever to
the dominant estate. (587)
Article
676. Whenever
the yard or court of a house is surrounded by other houses, and it is not
possible to give an outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can be demanded, giving
an outlet to the water at the point of the contiguous lands or tenements where
its egress may be easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate, after payment of
the property indemnity. (583)
SECTION 7
Intermediate Distances and Works for Certain Constructions and Plantings
Intermediate Distances and Works for Certain Constructions and Plantings
Article
677. No
constructions can be built or plantings made near fortified places or
fortresses without compliance with the conditions required in special laws,
ordinances, and regulations relating thereto. (589)
Article
678. No
person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable,
depository of corrosive substances, machinery, or factory which by reason of
its nature or products is dangerous or noxious, without observing the distances
prescribed by the regulations and customs of the place, and without making the
necessary protective works, subject, in regard to the manner thereof, to the
conditions prescribed by such regulations. These prohibitions cannot be altered
or renounced by stipulation on the part of the adjoining proprietors.
In the
absence of regulations, such precautions shall be taken as may be considered
necessary, in order to avoid any damage to the neighboring lands or tenements.
(590a)
Article
679. No
trees shall be planted near a tenement or piece of land belonging to another
except at the distance authorized by the ordinances or customs of the place,
and, in the absence thereof, at a distance of at least two meters from the
dividing line of the estates if tall trees are planted and at a distance of at
least fifty centimeters if shrubs or small trees are planted.
Every
landowner shall have the right to demand that trees hereafter planted at a
shorter distance from his land or tenement be uprooted.
The provisions
of this article also apply to trees which have grown spontaneously. (591a)
Article
680. If
the branches of any tree should extend over a neighboring estate, tenement,
garden or yard, the owner of the latter shall have the right to demand that
they be cut off insofar as they may spread over his property, and, if it be the
roots of a neighboring tree which should penetrate into the land of another,
the latter may cut them off himself within his property. (592)
Article
681. Fruits
naturally falling upon adjacent land belong to the owner of said land. (n)
SECTION 8
Easement Against Nuisance (n)
Easement Against Nuisance (n)
Article
682. Every
building or piece of land is subject to the easement which prohibits the
proprietor or possessor from committing nuisance through noise, jarring,
offensive odor, smoke, heat, dust, water, glare and other causes.
Article
683. Subject
to zoning, health, police and other laws and regulations, factories and shops
may be maintained provided the least possible annoyance is caused to the
neighborhood.
SECTION 9
Lateral
and Subjacent Support (n)
Article
684. No
proprietor shall make such excavations upon his land as to deprive any adjacent
land or building of sufficient lateral or subjacent support.
Article
685. Any
stipulation or testamentary provision allowing excavations that cause danger to
an adjacent land or building shall be void.
Article
686. The
legal easement of lateral and subjacent support is not only for buildings
standing at the time the excavations are made but also for constructions that
may be erected.
Article
687. Any
proprietor intending to make any excavation contemplated in the three preceding
articles shall notify all owners of adjacent lands.
CHAPTER 3
Voluntary Easements
Voluntary Easements
Article
688. Every
owner of a tenement or piece of land may establish thereon the easements which
he may deem suitable, and in the manner and form which he may deem best,
provided he does not contravene the laws, public policy or public order. (594)
Article
689. The
owner of a tenement or piece of land, the usufruct of which belongs to another,
may impose thereon, without the consent of the usufructuary, any servitudes
which will not injure the right of usufruct. (595)
Article
690. Whenever
the naked ownership of a tenement or piece of land belongs to one person and
the beneficial ownership to another, no perpetual voluntary easement may be
established thereon without the consent of both owners. (596)
Article
691. In
order to impose an easement on an undivided tenement, or piece of land, the
consent of all the co-owners shall be required.
The
consent given by some only, must be held in abeyance until the last one of all
the co-owners shall have expressed his conformity.
But the
consent given by one of the co-owners separately from the others shall bind the
grantor and his successors not to prevent the exercise of the right granted.
(597a)
Article
692. The
title and, in a proper case, the possession of an easement acquired by
prescription shall determine the rights of the dominant estate and the obligations
of the servient estate. In default thereof, the easement shall be governed by
such provisions of this Title as are applicable thereto. (598)
Article
693. If
the owner of the servient estate should have bound himself, upon the
establishment of the easement, to bear the cost of the work required for the
use and preservation thereof, he may free himself from this obligation by
renouncing his property to the owner of the dominant estate. (599)
TITLE VIII
NUISANCE (n)
NUISANCE (n)
Article
694. A
nuisance is any act, omission, establishment, business, condition of property,
or anything else which:
(1)
Injures or endangers the health or safety of others; or
(2)
Annoys or offends the senses; or
(3)
Shocks, defies or disregards decency or morality; or
(4)
Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or
(5)
Hinders or impairs the use of property.
Comment:
Nuisance v. Tort; Comparative
Distinctions[1]
Negligence
|
Nuisance
|
||
1.
|
Basis
|
Liability
is based on lack of proper care and diligence
|
Liability
attaches regardless of the degree of care or skill exercised to avoid the
injury
|
2.
|
Condition
of the Act
|
Act
complained of is already done which caused the injury to the plaintiff
|
There
is continuing harm being suffered by the aggrieved party by the maintenance
of the act or thing which constitutes the nuisance
|
3.
|
Abatement
|
Abatement
is not available as a remedy. The remedy is action for damages.
|
Abatement
without judicial proceedings is allowed to suppress the nuisance (Arts. 699
and 705)
|
Article
695. Nuisance
is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal. A private nuisance
is one that is not included in the foregoing definition.
Article
696. Every
successive owner or possessor of property who fails or refuses to abate a
nuisance in that property started by a former owner or possessor is liable
therefor in the same manner as the one who created it.
Article
697. The
abatement of a nuisance does not preclude the right of any person injured to
recover damages for its past existence.
Article
698. Lapse
of time cannot legalize any nuisance, whether public or private.
Article
699. The
remedies against a public nuisance are:
(1) A
prosecution under the Penal Code or any local ordinance: or
(2) A
civil action; or
(3)
Abatement, without judicial proceedings.
Article
700. The
district health officer shall take care that one or all of the remedies against
a public nuisance are availed of.
Article
701. If
a civil action is brought by reason of the maintenance of a public nuisance,
such action shall be commenced by the city or municipal mayor.
Article
702. The
district health officer shall determine whether or not abatement, without
judicial proceedings, is the best remedy against a public nuisance.
Article
703. A
private person may file an action on account of a public nuisance, if it is
specially injurious to himself.
Article
704. Any
private person may abate a public nuisance which is specially injurious to him
by removing, or if necessary, by destroying the thing which constitutes the
same, without committing a breach of the peace, or doing unnecessary injury.
But it is necessary:
(1) That
demand be first made upon the owner or possessor of the property to abate the
nuisance;
(2) That
such demand has been rejected;
(3) That
the abatement be approved by the district health officer and executed with the
assistance of the local police; and
(4) That
the value of the destruction does not exceed three thousand pesos.
Article
705. The
remedies against a private nuisance are:
(1) A
civil action; or
(2)
Abatement, without judicial proceedings.
Article
706. Any
person injured by a private nuisance may abate it by removing, or if necessary,
by destroying the thing which constitutes the nuisance, without committing a
breach of the peace or doing unnecessary injury. However, it is indispensable
that the procedure for extrajudicial abatement of a public nuisance by a
private person be followed.
Article
707. A
private person or a public official extrajudicially abating a nuisance shall be
liable for damages:
(1) If he
causes unnecessary injury; or
(2) If an
alleged nuisance is later declared by the courts to be not a real nuisance.
Comments:
1. Doctrine of Attractive Nuisance.
Under the rule, an owner is liable if he maintains in his premises dangerous
instrumentalities or appliances of a character likely to lure children in play
and he fails to exercise ordinary care to prevent children of tender age from
playing therewith or resorting thereto.
2. Exception. Doctrine does not
apply to bodies of water, artificial as well as natural, in the absence of some
unusual condition or artificial feature other than the mere water and it
location.
3. See Hidalgo Enterprises v.
Balndan, 91 Phil 488; Del Rosario v. Manila Electric, 57 Phil 487; Taylor v.
Manila Electric, 16 Phil 8.
TITLE IX
REGISTRY OF PROPERTY
REGISTRY OF PROPERTY
Article
708. The
Registry of Property has for its object the inscription or annotation of acts
and contracts relating to the ownership and other rights over immovable
property. (605)
Article
709. The
titles of ownership, or of other rights over immovable property, which are not
duly inscribed or annotated in the Registry of Property shall not prejudice
third persons. (606)
Article
710. The
books in the Registry of Property shall be public for those who have a known
interest in ascertaining the status of the immovables or real rights annotated
or inscribed therein. (607)
Article
711. For
determining what titles are subject to inscription or annotation, as well as
the form, effects, and cancellation of inscriptions and annotations, the manner
of keeping the books in the Registry, and the value of the entries contained in
said books, the provisions of the Mortgage Law, the Land Registration Act, and
other special laws shall govern. (608a)
BOOK III
DIFFERENT MODES OF ACQUIRING OWNERSHIP
Preliminary Provision
DIFFERENT MODES OF ACQUIRING OWNERSHIP
Preliminary Provision
Article
712. Ownership
is acquired by occupation and by intellectual creation.
Ownership
and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain
contracts, by tradition.
They may
also be acquired by means of prescription. (609a)
TITLE I
Occupation
Occupation
Article
713. Things
appropriable by nature which are without an owner, such as animals that are the
object of hunting and fishing, hidden treasure and abandoned movables, are
acquired by occupation. (610)
Article
714. The
ownership of a piece of land cannot be acquired by occupation. (n)
Article
715. The
right to hunt and to fish is regulated by special laws. (611)
Article
716. The
owner of a swarm of bees shall have a right to pursue them to another's land,
indemnifying the possessor of the latter for the damage. If the owner has not
pursued the swarm, or ceases to do so within two consecutive days, the
possessor of the land may occupy or retain the same. The owner of domesticated
animals may also claim them within twenty days to be counted from their
occupation by another person. This period having expired, they shall pertain to
him who has caught and kept them. (612a)
Article
717. Pigeons
and fish which from their respective breeding places pass to another pertaining
to a different owner shall belong to the latter, provided they have not been
enticed by some article or fraud. (613a)
Article
718. He
who by chance discovers hidden treasure in another's property shall have the
right granted him in article 438 of this Code. (614)
Article
719. Whoever
finds a movable, which is not treasure, must return it to its previous
possessor. If the latter is unknown, the finder shall immediately deposit it
with the mayor of the city or municipality where the finding has taken place.
The
finding shall be publicly announced by the mayor for two consecutive weeks in
the way he deems best.
If the
movable cannot be kept without deterioration, or without expenses which
considerably diminish its value, it shall be sold at public auction eight days
after the publication.
Six
months from the publication having elapsed without the owner having appeared,
the thing found, or its value, shall be awarded to the finder. The finder and
the owner shall be obliged, as the case may be, to reimburse the expenses.
(615a)
Article
720. If
the owner should appear in time, he shall be obliged to pay, as a reward to the
finder, one-tenth of the sum or of the price of the thing found. (616a)
TITLE II
Intellectual Creation
Intellectual Creation
Article
721. By
intellectual creation, the following persons acquire ownership:
(1) The
author with regard to his literary, dramatic, historical, legal, philosophical,
scientific or other work;
(2) The
composer; as to his musical composition;
(3) The
painter, sculptor, or other artist, with respect to the product of his art;
(4) The
scientist or technologist or any other person with regard to his discovery or
invention. (n)
Article
722. The
author and the composer, mentioned in Nos. 1 and 2 of the preceding article,
shall have the ownership of their creations even before the publication of the
same. Once their works are published, their rights are governed by the
Copyright laws.
The
painter, sculptor or other artist shall have dominion over the product of his
art even before it is copyrighted.
The
scientist or technologist has the ownership of his discovery or invention even
before it is patented. (n)
Article
723. Letters
and other private communications in writing are owned by the person to whom
they are addressed and delivered, but they cannot be published or disseminated
without the consent of the writer or his heirs. However, the court may
authorize their publication or dissemination if the public good or the interest
of justice so requires. (n)
Article
724. Special
laws govern copyright and patent. (429a)
Comments:
“1. THEORY OF MODE AND TITLE. A person can acquire ownership
of a property if mode and title concur. There can be no transfer or acquisition
of ownership if either mode or title is missing.
a) 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 CASE of the acquisition.
b) 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. Example: In
a contract of sale, the mode of acquiring ownership of tradition or delivery.
However, delivery by itself will not transfer ownership. There must be a
contract that serves as a justification for delivery to transfer ownership.”
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