(Question VI, Civil Law, 2018 Bar Exam)
Sammy and Santi are cousins who separately inherited two (2) adjoining lots from their grandfather. Sammy is based overseas but wants to earn income from his inherited land, so he asked a local contractor to build a row of apartments on his property which he could rent out. The contractor sent him the plans and Sammy noticed that the construction encroached on a part of Santi’s land but he said nothing and gave approval to construct based on the plans submitted by the local contractor. Santi, based locally, and who loved his cousin dearly, did not object even if he knew of the encroachment since he was privy to the plans and visited the property regularly. Later, the cousins had a falling out and Santi demanded that the portion of the apartments that encroached on his land be demolished.
Can Santi successfully file legal action to require the demolition? (5%)
Under the Civil Code, if there was bad faith, not only on the part of the person who built, planted or sowed on the land of another, but also on the part of the owner of such land, the rights of one and the other shall be the same as though both had acted in good faith. If both are considered in good faith, demolition is not one of the options granted to the builder. Instead, the landowner has the right to choose either: (a) to appropriate the improvement subject to payment of indemnity; or, (b) to oblige the builder to pay the proper rent. If they cannot agree on the rent, the court may fix it for them.Rule
In the case at bar, both Sammy and Santi are in bad faith as they knew of the encroachment prior to the construction but did not act on it. As they are both in bad faith, they are both considered to be in good faith and hence limited to the options provided. Demolition is not one of them. Apply
Thus, Santi cannot successfully file legal action to require the demolition of the portion of the apartment that encroached on his land. Conclusion
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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