1. LANDLORD AND TENANT; TRESPASS ON RIGHT OF POSSESSION; TRESPASS IN FACT ONLY ON THE USE OF THE PROPERTY LEASED. — If, by reason of the obligation imposed by article 1554 of the Civil Code upon the lessor to maintain the lessee in the peaceful enjoyment of the lease during all the time covered by the contract, the lessor must answer to the lessee for all kinds of trespass which the latter may suffer, whether it be on the possession, or the enjoyment, or the use of the demised property, there world be no purpose in that provision of article 1560 which provides that: "The lessor shall not be obliged to answer for trespass in fact only (de mero hecho) made by a third person in the use of the tenement cased, but the lessee shall have a direct action against the trespasser."cralaw virtua1aw library

2. ID.; ID.; DAMAGES. — In order that the lessee may recover damages by reason of trespass by a third person on his possession, in accordance with article 1554, he must bring suit against the lessor to warrant the lease as provided in article 1553 of the same code. (Decision of March 13, 1899.)

Per TRENT, J., dissenting:chanrob1es virtual 1aw library

3. LANDLORD AND TENANT; COVENANT OF QUIET ENJOYMENT; BUILDING OPERATIONS. — The duty of a landlord to protect his tenants from disturbance in the course of building operations carried on by him or under his authority is personal and he cannot discharge it by delegating such work to a tenant or a contractor. He cannot urge as a defense that injuries resulting therefrom are due to the trespass of a third person, i.e., the contractor.

4. ID.; ID.; FACTS OF THIS CASE. — A landlord granted permission to a new tenant to take the roof off the building for the purpose of adding another story. The new tenant let the work to a contractor. During the time the roof was partially removed, rain fell and caused injury to a prior tenant located on a lower floor of the building. That the injury caused was a breach of the covenant of quiet enjoyment.

Defendants leased to plaintiff the first floor of a building belonging to them. They leased the rest of the promised to the proprietor of the Hotel de Francia. The proprietor of this hotel requested permission of defendants to add another story to the building. Defendants gave him permission to do so. The proprietor of the hotel covenanted with a contractor for the construction of the new upper story. The contractor having taken charge of the work, it was found necessary to open holes in the roof for the insertion of uprights. When it rained, the water leaked through these holes. Plaintiff conducted a saloon business, known as the "Luzon Cafe," in the premises leased by him and the water stained the walls and furniture, making his place unattractive to his customers. As a consequence, it became necessary to make certain repairs and his receipts fell off during the progress of this work. The trial court, basing his action on the provisions of article 1554 of the Civil Code, rendered judgment in plaintiff’s behalf.

Articles 1554 provides that the lessor is obliged to maintain the lessee in the peaceful enjoyment of the lease during all the time covered by the contract.

Nobody has in any manner disputed, objected to, or placed any difficulties in the way of plaintiff’s peaceful enjoyment, or his quiet and peaceable possession of the floor he occupies. The lessors, therefore, have not failed to maintain him in the peaceful enjoyment of the floor leased to him and he continues to enjoy this status without the slightest change, without the least opposition on the part of any one. That there was a disturbance of the peace or order in which he maintained his things in the leased story does not mean that he lost the peaceful enjoyment of the thing rented. The peace would likewise have been disturbed or lost had some tenant of the Hotel de Francia, living above the floor leased by plaintiff, continually poured water on the latter’s bar and sprinkled his bar-tender and his customers and tarnished his furniture; or had some gay patrons of the hotel gone down into his saloon and broken his crockery or glassware, or stunned him with deafening noises. Numerous examples could be given to show how the lessee might fail peacefully to enjoy the floor leased by him, in all of which cases he world, of course, have a right of action for the recovery of damages from those who disturbed his peace, but he would have no action against the lessor to compel the latter to maintain him in his peaceful enjoyment of the thing rented. The lessor can do nothing, nor is it incumbent upon him to do anything, in the examples or cases mentioned, to restore his lessee’s peace.

Manresa, in commenting on the aforementioned article 1554, very clearly says:jgc:chanrobles.com.ph

"The lessor must see that the enjoyment is not interrupted or disturbed, either by others’ acts (save in the provided for in the article 1560), or by his own. By his own acts, because, being the person principally obligated by the contract, he would openly violate it if, in going back on his agreement, he should attempt to render ineffective in practice the right in the thing he had granted to the lessee; and by others’ acts, because he must guarantee the right he created, for he is obliged to give warranty in the manner we have set forth in our commentary on article 1553, and , in this sense, it is incumbent upon him to protect the lessee in the latters’ peaceful enjoyment."cralaw virtua1aw library

It is unquestionable that, if plaintiff has suffered damages, a right of action for their recovery should lie in his behalf. Such an action should always be brought against the tort feasor. A person who by an act or omission causes damage to another, when there concurs fault or negligence, shall be obliged to repair the damage done (Civil Code, 1902). Who should bring this action, the lessor or the lessee? In some cases, the lessor; in others, the lessee himself; but not the lessee against the lessor to the exclusion of the person who caused the damage. If it should be brought by the lessor, the lessee should get him to protect the latter in his peaceful enjoyment of the property as against the third person who disturbed such enjoyment; if the right of action pertains to the lessee himself, then the lessor can not even do this, because he can not take the lessee’s defense upon himself in violation of the positive mandates of the law, for the reason that the law denies him personality for that purpose.

Account has not been taken of the provisions of article 1560, mentioned as an exception in the preceding quotation.

The article prescribes as follows:jgc:chanrobles.com.ph

"The lessor shall not be obliged to answer for the mere fact of a trespass (perturbacion de mero hecho) made by a third person in the use of the estate leased, but the lessee shall have a direct action against the trespasser."cralaw virtua1aw library

"Reasons for the provision contained in article 1560. — We already know what is understood by legal trespass and trespass in fact only. We likewise know that, according to the article we are now dealing with, the lessor is not liable for trespasses of this latter kind, although he is liable for trespasses in law (de derecho), pursuant to No. 3 of article 1554m the force of which has suffered no change by any subsequent article; and we now inquire into the reason for this distinction or, better stated, the reason for the nonliability of the lessor in trespasses in fact only.

"A necessary condition of the enjoyment of the lessee, the chief feature of the lease, is the possession he must have of the thing; without that, there can be no enjoyment True it is that the lessee does not hold such possession in the capacity of owner and that, therefore, he cannot and should not derive from it the effects which, under other circumstances, would ensue; but, after all, he is a possessor. If we carefully examine that relation of possession, we shall see that it is double; on the one hand, he possesses the thing as a condition of enjoying it while, on the other, he possesses his right to the enjoyment of the thing. In certain respects he holds possession of the thing in the name of its owner, in so far as this latter has not ceased to hold it for the purpose of prescription, for example, because he leases the property; but the possession of his right of use pertains to him in his own name, as acquired by virtue of a just title, that is, the contract of lease. If then, the trespass in fact only refers to the use of the thing, who but the lessee can have the personality to oppose it? It must be carefully note that article 1560 speaks of trespass in fact only in the use of the property leased, and that if such trespass is translated into anything material which affects the property itself, then only in so far as it is a disturbance of the use of the property is it incumbent upon the lessee to repel it.

"True it is that, pursuant to paragraph 3, of article 1554, the lessor must maintain the lessee in the peaceful enjoyment of the lease during all of the time covered by the contract, and that, in consequence thereof, he is obliged to remove such obstacles as impede said enjoyment; but, as in warranty in a case of eviction (to which doctrine the one we are now examining is very similar, since it is necessary, as we have explained, that the cause of eviction be in a certain manner imputable to the vendor, which must be understood as saying that it must be prior to the sale), the obstacles to enjoyment which the lessor must remove are those that in some manner or other cast doubt upon the right by virtue of which the lessor himself executed the lease and, strictly speaking, it is this right that the lessor should guarantee to the lessee."cralaw virtua1aw library

Briefly, if the act of trespass is not accompanied or preceded by anything which reveals a really juridic intention on the part of the trespasser, in such wise that the lessee can only distinguish the material fact, stripped of all legal form or reasons, we understand it to be trespass in fact only (de mero derecho).

The judgment appealed from is reversed, and it is hereby ordered that the complaint against the defendant lessors be dismissed, with the costs against the plaintiff and without special finding in this instance. To plaintiff is reserved the right allowed him by subsection 4 of section 127 of the Code of Civil Procedure. So ordered.

Torres, Moreland and Araullo, JJ., concur.



TRENT, J., dissenting:chanrob1es virtual 1aw library

Plaintiff seeks to recover from his lessors for damages to his furniture and fixtures and for interference with his business, suffered while alterations were being made in the building of which he was a tenant. Plaintiff occupied a portion of the first floor and the damages were occasioned by construction work on an additional floor, which necessitated cutting holes in the roof for vertical supports, through which rain entered the demised premises. Plaintiff conducted a saloon business therein, and the water stained the walls and furniture and gathered on the floor, making his place uninviting to his customers. As a consequence, certain repairs were necessary and his receipts fell off during the continuance of the alleged nuisance. There can be no question as to these facts, although the amount of the damaged found by the trial court is excepted to.

The defendant lessors seek to avoid responsibility for these damages by reason of a contract of lease of other portions of the same building to the proprietors of a hotel, one of the conditions of which was that the hotel company should erect an additional story to the building, which should revert to the lessors at the expiration of the lease; and a contract made by the hotel company with a building contractor for the performance of the work agreed upon in the contract of lease.

The lease of the hotel company is subsequent in point of time to the plaintiff’s lease by approximately two and a half months, and plaintiff testified that, although he was notified of the contemplated alterations, he did not see the plans for the work nor approve of them in any particular. Plaintiff’s lease contains a covenant guaranteeing him the quiet and peaceful possession of the demised premises. He promptly notified his lessors of the interference with and damage to his business and notified them several times during the continuance of the nuisance which lasted about two months, but nothing was done to abate the same.

Article 1558 of the Civil Code provides that a tenant must permit the lessor to make urgent repairs. The alterations and additions to the building in question were not within the class of repairs contemplated by this article. Article 1560 provides that the lessor shall not be liable for the trespass of a third person, while article 1554, paragraph 3, obligates the lessor to maintain the lessee in the peaceful enjoyment of the demised premises during the life of the lease. The question presented by the facts of this case appears to be whether the acts complained of were a mere trespass of a third person or an infraction of the lessor’s covenant of peaceful possession. Manresa, edition 1911 (Vol. 10, p.525), states that there is but little jurisprudence on the covenant for peaceful possession, which article 1554 makes a part of every contract of lease of real property. He does say, however, that the renting of an upper floor for the establishment of an industry which renders inconvenient or makes impossible the use which a prior tenant makes of the first floor constitutes a violation of this covenant on the part of the landlord. Sc