Bar Q and A #22

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

No, the demolition cannot be sustained. The house is not a nuisance per se or at law as it is not an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. A nuisance per se is a nuisance in and of itself, without regard to circumstances.

2.) Josefa executed a deed of donation covering a one-hectare rice land in favor of her daughter, Jennifer. The deed specifically provides that: "For and in consideration of the love and service Jennifer has shown and given to me, I hereby freely, voluntarily and irrevocably donate to her my one-hectare rice land covered by TCT No. 11550, located in San Fernando, Pampanga. This donation shall take effect upon my death." The deed also contained Jennifer's signed acceptance, and an attached notarized declaration by Josefa and Jennifer that the land will remain in Josefa's possession and cannot be alienated, encumbered, sold or disposed of while Josefa is still alive. Advise Jennifer on whether the deed is a donation inter vivos or mortis causa and explain the reasons supporting your advice.

The donation is a donation inter vivos.

When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor’s death, this shall be a donation inter vivos. (Art. 729) The Civil Code prefers inter vivos transmissions. Moreover, mortis causa donations should follow the formalities of a will. (Art. 728) Here there is no showing that such formalities were followed. Thus, it is favorable to Jennifer that the deed is a donation inter vivos.

Furthermore, what is most significant in determining the type of donation is the absence of stipulation that the donor could revoke the donation; on the contrary, the deeds expressly declare them to be “irrevocable,” a quality absolutely incompatible with the idea of conveyances mortis causa where revocability is the essence of the act, to the extent that a testator cannot lawfully waive or restrict his right of revocation. The provisions of the deed of donation which state that the same will only take effect upon the death of the donor and that there is a prohibition to alienate, encumber, dispose, or sell the same should be harmonized with its express irrevocability. (Austria-Magat v. CA, G.R. No. 106755, February 1, 2002)

3.) The Roman Catholic Church accepted a donation of a real property located in Lipa City. A deed of donation was executed, signed by the donor, Don Mariano, and the donee, the Church, as represented by Fr. Damian. Before the deed could be notarized, Don Mariano died. Is the donation valid?

The donation is void. The donation of an immovable property must be in a public instrument in order for it to be valid. In this case, the donor died even before the notarization of the deed of donation. Hence, it does not satisfy the requirement of being in a public instrument for the donation to be valid.

4.) Jose, single, donated a house and lot to his only niece, Maria, who was of legal age and who accepted the donation. The donation and Maria's acceptance thereof were evidenced by a Deed of Donation. Maria then lived in the house and lot donated to her, religiously paying real estate taxes thereon. Twelve years later, when Jose had already passed away, a woman claiming to be an illegitimate daughter of Jose filed a complaint against Maria. Claiming rights as an heir, the woman prayed that Maria be ordered to reconvey the house and lot to Jose's estate. In her complaint she alleged that the notary public who notarized the Deed of Donation had an expired notarial commission when the Deed of Donation was executed by Jose. Can Maria be made to reconvey the property? What can she put up as a defense?

No. Maria cannot be compelled to reconvey the property. The Deed of Donation was void because it was not considered a public document. However, a void donation can trigger acquisitive prescription. (Solis v. CA, G.R. No. L- 46753-54, August 25, 1989; Doliendo v. Biarnesa, GR No. L-2765, December 27, 1906) The void donation has a quality of titulo colorado enough for acquisitive prescription especially since 12 years had lapsed from the deed of donation.

5.) Illegal and impossible conditions in a simple donation v. Illegal and impossible conditions in an onerous donation

Illegal and impossible conditions in a simple donation are considered as not written. Such conditions shall, therefore, be disregarded but the donation remains valid. (Article 727, NCC)

On the other hand, illegal and impossible conditions imposed in an onerous donation shall annul the donation. (Art. 1183, NCC) This is so because onerous donations are governed by the law on contracts. (Art. 733, NCC)

6.) B donated to M a parcel of land in 1980. B made the deed of donation, entitled “Donation Inter Vivos”, in a public instrument and M accepted the donation in the land same document. It was provided in the deed that theland donated shall be immediately delivered to M and that M shall have the right to enjoy the fruits fully. The deed also provided that B was reserving the right to dispose of the land during his (B’s) lifetime, and that M shall not register the deed of donation until after B’s death. Upon B’s death, W, B’s widow, and sole heir, filed an action for the recovery of the donated land, contending that the donation made by B is a donation mortis causa and not a donation inter vivos. Will said action prosper? Explain your answer.

Yes the action will prosper. The donation is a donation mortis causa because the reservation is to dispose of all the property donated and, therefore, the donation is revocable at will. Accordingly, the donation requires the execution of a valid will, whether notarial or holographic. (Arts. 755, 728, CivilCode)

7.) Ernesto donated in a public instrument a parcel of land to Demetrio, who accepted it in the same document. It is there declared that the donation shall take effect immediately, with the donee having the right to take possession of the land and receive its fruits but not to dispose of the land while Ernesto is alive as well as for ten years following his death. Moreover, Ernesto also reserved in the same deed his right to sell the property should he decide to dispose of it at any time - a right which he did not exercise at all. After his death, Ernesto's heirs seasonably brought an action to recover the property, alleging that the donation was void as it did not comply with the formalities of a will. Will the suit prosper?

Yes, the suit will prosper as the donation did not comply with the formalities of a will. In this instance, the fact that the donor did not intend to transfer ownership or possession of the donated property to the donee until the donor's death, would result in a donation mortis causa and in this kind of disposition, the formalities of a will should be complied with, otherwise, the donation is void. In this Instance, donation mortis causa embodied only in a public instrument without the formalities of a will could not have transferred ownership of disputed property to another.

8.) On January 21, 1986, A executed a deed of donation inter vivos of a parcel of land to Dr. B who had earlier constructed thereon a building in which research on the dreaded disease AIDS were being conducted. The deed, acknowledged before a notary public, was handed over by A to Dr. B who received it. A few days after, A flew to Davao City. Unfortunately, the airplane he was riding crashed on landing killing him. Two days after the unfortunate accident. Dr. B, upon advice of a lawyer, executed a deed acknowledged before a notary public accepting the donation. Is the donation effective? Explain your answer.

No, the donation is not effective. The law requires that the separate acceptance of the donee of an immovable must be done in a public document during the lifetime of the donor (Art. 746 & 749, Civil Code). In this case, B executed the deed of acceptance before a notary public after the donor had already died.

9.) On July 27, 1997, Pedro mailed in Manila a letter to his brother Jose, a resident of Iloilo City, offering to donate a vintage sports car which the latter had long been wanting to buy from the former. On August 5, 1997, Jose called Pedro by cellular phone to thank him for his generosity and to inform him that he was sending by mail for his letter of acceptance. Pedro never received that letter because it was never mailed. On August 14, 1997, Pedro received a telegram from Iloilo informing him that Jose had been killed in a road accident the day before (August 13, 1997) 1. Is there a perfected donation? 2. Will your answer be the same if Jose did mail his acceptance letter but it was received by Pedro in Manila days after Jose’s death?

1. None. There is no perfected donation. Under Art. 748 of the Civil Code, the donation of a movable may be made orally or in writing. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing. Assuming that the value of the thing donated, a vintage sports car, exceeds P5,000.00, then the donation and the acceptance must be in writing. In this instance, the acceptance of Jose was not in writing, therefore, the donation is void. Upon the other hand, assuming that the sports car costs less than P5,000.00, the donation may be oral, but still, the simultaneous delivery of the car is needed and there being none, the donation was never perfected.

2. Yes, the answer is the same. If Jose’s mail containing his acceptance of the donation was received by Pedro after the former’s death, then the donation is still void because under Art. 734 of the Civil Code, the donation is perfected the moment the donor knows of the acceptance by the done. The death of Jose before Pedro could receive the acceptance indicates that the donation was never perfected. Under Art. 746, acceptance must be made during the lifetime of both the donor and the donee.

10.) Arturo borrowed P500,000.00 from his father. After he had paid P300,000.00, his father died. When the administrator of his father's estate requested payment of the balance of P200,000.00. Arturo replied that the same had been condoned by his father as evidenced by a notation at the back of his check payment for the P300,000.00 reading: "In full payment of the loan". Will this be a valid defense in an action for collection?

It depends. If the notation "in full payment of the loan" was written by Arturo's father, there was an implied condonation of the balance that discharges the obligation. In such case, the notation is an act of the father from which condonation may be inferred. The condonation being implied, it need not comply with the formalities of a donation to be effective. The defense of full payment will, therefore, be valid.

When, however, the notation was written by Arturo himself. It merely proves his intention in making that payment but in no way does it bind his father. (Yam v. CA, G.R No. 104726, February 11, 1999) In such case, the notation was not the act of his father from which condonation may be inferred. There being no condonation at all, the defense of full payment will not be valid.