A servitude which is dependent on the tenement to which it attaches cannot be the object of usufruct.
THINGS
Non-consumable things.
Consumable things, but only as to their value if appraised, or on an equal quantity and quality if they were not appraised. Unproductive things
e.g. sterile or absolutely unproductive land, or things for mere pleasure, such as promenades, statues or paintings, even if they do not produce any utility.
B. CHARACTERISTICS
(1) It is a real right; (2) Of temporary duration;(3) The purpose is to derive all advantages from the thing due to normal exploitation.
B.1. NATURAL CHARACTERISTICS
(1) Includes only the right to use them (jus
utendi), the right to own the fruits (jus fruendi) and the right to possess (jus possidendi).
(2) Usufructuary must preserve the form or substance of the thing.
(3) Preservation is a natural requisite, not essential because the title constituting it or the law may provide otherwise. (4) Reasons for preserving form and
substance
(a) To prevent extraordinary exploitation;
(b) To prevent abuse, which is frequent; (c) To prevent impairment.
Exception: In an abnormal usufruct, alteration is allowed. (5) Usufruct is extinguished by the death of
the usufructuary.
(6) Natural because a contrary intention may prevail.
C. CLASSIFICATION
C.1. BY ORIGIN
i. Voluntary: created by the will of private persons
(1) By act inter vivos– such as contracts and donations:
(2) By donation of the usufruct;
(3) By retention of the usufruct by donor; (4) Where a usufruct is constituted inter
vivos and for valuable consideration, the contract is unenforceable unless in writing;
(5) By act mortis causa – such as testament.
ii. Legal: as provided by law.
Usufruct of parents over the property of unemancipated children. (now limited to the collective daily needs of the family) [FC
26]
iii. Mixed: created both by law and the acts of persons, i.e. by acquisitive prescription.
PAGE 129 OF 574 The rights and duties of the usufructuary
provided by law may be modified or eliminated by the parties.
The title constituting the usufruct may validly authorize the usufructuary to alienate the thing itself held in usufruct. If the usufructuary is authorized to alienate the thing in case of necessity, it is the usufructuary who determines the question of necessity.
C.2. BY PERSON ENJOYING THE RIGHT OF USUFRUCT
i. Simple: only one usufructuary enjoys the property.
ii. Multiple: several usufructuaries enjoy the property as co-usufructuaries.
iii. Simultaneous: at the same time. iv. Successive: one after the other. Limitations On Successive Usufruct (1) If usufruct is by donation, ALL donees
must be alive. [NCC 756]
(2) Fiduciary or first heir and the second heir must be alive at the time of the death of the testator. [NCC 863]
(3) If by testamentary succession, there must be only 2 successive usufructuaries, and both must be alive or at least already conceived at the time of the testator’s death and later born alive. [NCC 869]
C.3. BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole or a part of the fruits of the thing or on a right, provided it is not strictly personal or intransmissible. [NCC 564]
i. Rights
Must not be strictly personal or intransmissible.
Usufruct over a real right is by itself a real right.
Right to receive present or future support cannot be the object of the usufruct.
ii. Things
Normal: involves non-consummable things where the form and substance are preserved.
Abnormal or irregular: when the usufruct includes things which cannot be used in a manner appropriate to its nature without being consumed.
The usufructuary has right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered.
If they were not appraised, he has the right to return the same quantity and quality, or pay their current price at the time the usufruct ceases. [NCC 574]
In reality, the usufruct is not upon the consumable things themselves, but upon the sum representing their value or upon a quantity of things of the same kind and quality.
The usufructuary, in effect, becomes the owner of the things in usufruct, while the grantor becomes a mere creditor entitled to the return of the value or of the things of the same quantity and quality (as if converted into a simple loan).
Example: Usufruct over sterile animals (NCC
591, par. 4).
iv. Quasi-usufruct [NCC 574; Bar
1998]
Includes things which cannot be used without being consumed.
Money may be the object of usufruct [Alunan v. Veloso, 52 Phil 545]
PAGE 130 OF 574 C.4. BY THE EXTENT OF THE USUFRUCT
i. At to the Fruits
Total: all consumed by the usufruct. Partial: only on certain aspects of the usufruct’s fruits.
ii. As to the Object
Singular: only on particular property of the owner.
Universal: pertains to the usufruct over universal property, i.e. over an entire patrimony, a while inheritance of a compulsory heir, a dowry;
A universal usufructuary must pay the debts of the naked owner, if stipulated. Article 758 and 759 on donations apply.
NCC 758: When the donation imposes upon
the donee the obligation to pay the debts of the donor, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for the debts exceeding the value of the property donated, unless a contrary intention clearly appears.
NCC 759: There being no stipulation
regarding the payment of debts, the donee shall be responsible therefor only when the donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation.
D. RIGHTS AND OBLIGATIONS OF
USUFRUCTUARY
D.1. RIGHTS AS TO THE THING AND ITS FRUITS
(1) Right to enjoy the property
(2) Right to enjoy the property to the same extent as the owner, but only with respect to its use and the receipt of its fruits.
(3) Usufructuary cannot extract products which do not constitute fruits because he is bound to preserve the form and substance of the thing.
(4) Usufructuary rights may be transferred, assigned or otherwise disposed of by the usufructuary.
(5) Not exempt from execution and can be sold at public auction.
HIDDEN TREASURE
As to hidden treasure, usufructuary is considered a stranger without a right to a share, unless he is also the finder of the treasure
With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger.
Hidden treasure belongs to the owner of the land, building, or other property on which it is found.
Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one- half thereof shall be allowed to the finder.
PAGE 131 OF 574 i. Right to fruits pending at the
beginning of usufruct Fruits pending at the beginning of the usufruct Fruits pending at the termination of the usufruct Belong to the usufructuary
Belong to the naked owner
Without need to reimburse the expenses to the owners
The owner shall reimburse to the usufructuary ordinary cultivation expenses from the proceeds of the fruits (not to exceed the value of the fruits)
Without prejudice to the right of 3rd
persons e.g. if the fruits arose by building, planting, sowing by a possessor in good faith, the pending crop expenses of cultivation and of the net harvest and charges shall be prorated between said possessor and the usufructuary in proportion to the time of possession (NCC 545)
N.B. In the case of civil fruits, no need to prorate, as civil fruits accrue daily [NCC
544]
Rights of innocent 3rd
parties should not be prejudiced.
ii. Right to civil fruits
Civil fruits – deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last.
Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the
interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character.
If the usufruct is constituted only on the land and not the building built thereon then the right to the fruits by the usufructuary would not extend to the building. The building is considered as a separate and distinct prinicipal which produces its own fruits. [Gabuya v Cui (1971)]
Right to enjoy any increase through accessions and servitudes, including products of hunting and fishing.
iii. Right to lease the thing
General rule: The usufructuary may lease the thing to another but this shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered as subsisting during the agricultural year, i.e. the period from planting to harvesting of one crop.
Exceptions
(1) Legal usufructs cannot be leased. (2) Caucion juratoria (lease would show
that the usufructuary does not need the property badly).
(3) Usufruct is purely personal, e.g. title creating usufruct provides that usufructuary shall personally use and enjoy the property given in usufruct. Effect of the transfer of right:
The transfer or lease of the usufruct does not terminate the relation of the usufructuary with the owner.
Death of the transferee does not terminate the usufruct but it terminates upon the
PAGE 132 OF 574 death of the usufructuary who made the
transfer.
Rules as to Lease:
(1) The property in usufruct may be leased even without the consent of the owner. (2) The lease should be for the same period
as the usufruct.
EXCEPT: leases of rural lands continues for the remainder of the agricultural year.
(3) A lease executed by the usufructuary before the termination of the usufruct and subsisting after the termination of the usufruct must be respected, but the rents for the remaining period will belong to the owner.
(4) If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent that must be paid by the lessee. [NCC, 568] (5) It is the usufructuary and not the naked
owner who has the right to choose the tenant.
(6) As corollary to the right of the usufructuary to all the rent, to choose the tenant, and to fix the amount of the rent, she necessarily has the right to choose herself as the tenant thereof; and, as long as the obligations she had assumed towards the owner are fulfilled. [Fabie v. Gutierrez David (1945)] (7) A lease executed by the owner before the creation of the usufruct is not extinguished by such usufruct.
Limitations on the Right to Lease the Property
(1) Usufructuary cannot do the following: (a) Cannot alienate or dispose of the
objects included in the usufruct;
(b) Cannot renounce a servitude; (c) Cannot mortgage or pledge a thing. (2) Except:
(a) When the right of usufruct is converted into the right of ownership;
(b) When the things are consumable (NCC 574);
(c) When the things by their nature are intended for sale, such as the merchandise in a commercial establishment; and
(d) When the things, whatever their nature, are delivered under appraisal as equivalent to their sale. (3) Future crops may be sold but such sale would be void if usufruct terminates prior to harvest of future fruits.
The buyer’s remedy is to recover from the usufructuary.
(4) The usufructuary-lessor is liable for the act of the substitute.
(5) A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him. [NCC, 590]
(6) A usufructuary can sell or alienate his right of usufruct, apart from the thing held in usufruct, but the right of usufruct remains a temporary real right. iv. Improvements by the Usufructuary of the Land [NCC 579] He may improve the thing without altering its form and substance;
He may remove improvements made by him if it is possible to do so without damage to property
v. Usufructuary May Set Off Improvements [NCC 580]
PAGE 133 OF 574 (1) The usufructuary may set off the
improvements he may have made on the property against any damage to the same.
Right to improve the thing, but improvement inures to the benefit of the naked owner [NCC 579]
Usufructuary is not entitled to reimbursement.
(2) Whenever the usufructuary can remove the improvements without injury to the property in usufruct, he has the right to do so, and the owner cannot prevent him from doing so even upon payment of their value.
This right does not involve an obligation – if the usufructuary does not wish to exercise it, he cannot be compelled by the owner to remove the improvements. This right to remove improvements can be enforced only against the owner, not against a purchaser in good faith to whom a clean title has been issued. (3) Usufructuary may set off the
improvements against any damage to the property.
The improvements should have increased the value of the property, and that the damages are imputable to the usufructuary.
Increase in value and the amount of damages are set off against each other. If the damages exceed the increase in value, the difference should be paid by the usufructuary as indemnity.
If the increase in value exceeds the damages, and the improvements are of such nature that they can be removed without injury to the thing in usufruct, the settlement of the difference must be agreed upon by the parties.
(4) If the improvements cannot be removed without injury, the excess in value accrues to the owner.
(5) Registration of improvements – to protect usufructuary against 3rd persons
D.2. RIGHTS AS TO THE LEGAL RIGHT OF USUFRUCT ITSELF
i. Right to mortgage right of usufruct
The usufructuary may alienate his right of usufruct, even by a gratuitous title; but all the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct. [NCC. 572] ii. Does not include parental usufruct because of personal and family considerations.
Is there still a personal usufruct? Answer: No. NCC 321 was amended by FC 226, where there is no more mention of a parental usufruct. [Prof. Labitag]
Right to alienate the usufruct except in purely personal usufructs or when title constituting it prohibits the same.
Parental usufruct is inalienable.
D.3. OBLIGATIONS AT THE BEGINNING
OF THE USUFRUCT OR BEFORE