Easement / Servitude

Question 1

What is an Easement / Servitude?

Answer 1

Definition: a real right which burdens a thing with a presentation consisting of determinate servitudes for the exclusive enjoyment of a person who is not its owner or of a tenement belonging to another, or, it is the real right over an immovable by nature (i.e. land and buildings), by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something in his property for the benefit of another thing/or person.

Question 2

What is an easement or servitude based on the civil code?

Answer 2

An easement or servitude is an encumbrance

imposed upon an immovable by nature for the benefit of another immovable belonging to a different owner. [Art. 613, CC]

Question 3

What are the two estates involved in an easement / servitude?

Answer 3

Dominant Estate – the immovable in favor of which the easement is established.

Servient Estate – the immovable which is subject to the easement.

Question 4

What is the Dominant Estate in an easement / sevitude?

Answer 4

Dominant Estate – the immovable in favor of which the easement is established.

Question 5

What is the Servient Estate in an easement / servitude?

Answer 5

Servient Estate – the immovable which is subject to the easement.

Question 6

What are the essential features of an easement/ servitude?

Answer 6

a. It is a real right
b. It is a right enjoyed over another’s property (jus in re aliena)
c. It can only exist between neighboring estates
d. It is a right constituted ONLY over an immovable by nature (land and buildings)
e. It limits the servient owner’s right of ownership for the benefit of the dominant estate
f. It creates a relation between tenements
g. It is inherent or inseparable from estate to which they actively or passively belong
h. It is intransmissible.
i. It is indivisible
j. It has permanence

Question 7

What does it mean for an easement / servitude to be a real right?

Answer 7

– it gives rise to an action in rem or real action against any possessor of the servient estate. It is enforceable against the whole world.

Question 8

Can an easement / servitude exists in one’s own property?

Answer 8

NO.

It is a right enjoyed over another’s property (jus in re aliena

Question 9

Can an easement / servitude be constituted over over immovable properties by incorporation, by destination or by analogy?

Answer 9

NO.

It is a right constituted ONLY over an immovable by nature (land and buildings), not over movable properties or even immovable by incorporation, by destination or by analogy. [Art. 613, CC]

Question 10

Can an easement / sevitude be established on things beyond the commerce of man?

Answer 10

NO

They cannot be established on things beyond the commerce of man, (i.e. property of public dominion).

Question 11

Does an easement / servitude give the right to own and possess the servient estate?

Answer 11

NO.

Only Right of limited use

but no right to own and possess the servient estate.

Question 12

What relations exists between the owner of of the dominant estate and the servient estate?

Answer 12

GENERAL RULE:

dom to ser: refrain from doing something (servitus in non faciendo)

ser to dom: permit that something be done over the servient property (servitus in patendo)

but NOT:

the right to demand that the owner of the servient do something (servitus in faciendo)

EXCEPTIONS:

if such act is an accessory obligation to a praedial servitude (obligation propter rem)

Exception: Praedial servitudes • Right to place beams in an adjoining wall to support a structure.
• Right to use another’s wall to support a building.

Question 13

What are Praedial servitudes?

Answer 13

A praedial servitude is a limited real right constituted in favour of the owner of a property in his capacity as owner. It entitles one property owner to exercise a right on the property of another, or to prohibit another property owner from exercising a normal ownership right.

Question 14

Can easements exist without tenements?

Answer 14

Easements are merely accessory to the tenements, and a “quality thereof.” They cannot exist without tenements.

Easements exist even if they are not expressly stated or annotated as an encumbrance on the titles.

Question 15

Can an easement / servitude be alienated separately from the tenement affected or benefited?

Answer 15

NO. It is intransmissible

It cannot be alienated separately from the tenement affected or benefited.

Any alienation of the property covered carries with it the servitudes affecting said property. But this affects only the portion of the tenement with the easement, meaning that the portions unaffected can be alienated without the servitude.

Question 16

What does it mean for an easement / servitude to be indivisible?

Answer 16

If the servient estate is divided among co-owners, each owner must bear the easement imposed on their part of the property.

If the dominant estate is divided among coowners, each owner may make use of the whole easement.

Question 17

What does it mean for an easement / servitude to have permanence?

Answer 17

It has permanence because once it attaches, whether used or not, it continues and may be used anytime

Perpetual: exists as long as property exists, unless it is extinguished.

Question 18

What is the difference between an easement and a lease?

Answer 18

Easement:

• Real right, whether registered or not
• May be constituted only on an immovable by nature

-Limited to use of real
property of another but without the right to possess

Lease:

-Real right only when it is registered, or when its subject matter is real
property and the duration exceeds one year

• May be constituted on real or personal property
• Limited right to both the use and possession of the property of another

Question 19

What is the difference bet. an easement and a usufruct?

Answer 19

Easement:

• May be constituted only on an immovable by nature
• Not extinguished by the death of dominant owner
• Non-possessory right over an immovable
• Limited to particular or specific use of the servient estate

Usufruct:

• May be constituted on either movable or immovable property
• Extinguished by the death of usufructuary
• Involves a right of possession in an immovable
• Includes all the uses and the fruits of the property

Question 20

What are the general rules re. Easements / Servitudes?

Answer 20

a. Nulli res sua servi: No one can have a servitude over one’s own property.
b. Servitus in faciendo consistere nequit: A servitude cannot consist in doing.
c. Servitus servitutes esse non potest: There can be no servitude over another servitude.
d. A servitude must be exercised civiliter – in a way least burdensome to the owner of the servient estate.
e. A servitude must have a perpetual cause.

Question 21

What is the exception to the general rule that ‘a servitude cannot consist in doing’?

Answer 21

Praedial Servitude -where the positive obligation is an accessory to the negative easement.

Illustration: Under Art. 680, CC: the owner of a tree whose branches extend over to a neighboring property is required to cut off the extended branches, but the real essence of the easement is the obligation NOT TO ALLOW the branches of the tree to extend beyond the land.

Question 22

What are the different ways of classifying an easement/ servitude?

Answer 22

a. as to recepient of benefits
b. as to its exercise
c. as to indication of its existence
d. as to the object or obligation imposed
e. as to its cause or origin

Question 23

What are the types of easement / servitude as to recipient of benefits?

Answer 23

Real or Praedial: exists for the benefit of a particular tenement. [Art. 613, CC]

Personal: exists for the benefit of persons without a dominant tenement [Art. 614, CC]

Question 24

What are the types of easement / servitude as to its exercise?

Answer 24

[Art. 615, CC]

Continuous: Use is or may be incessant, without the intervention of any act of man

Discontinuous: Used at intervals, and dependent upon the acts of man.

Question 25

What are the types of easements / servitudes as to indication of its existence?

Answer 25

[Art. 615, CC]

Apparent: Made known and continually kept in view by external signs that reveal the use and enjoyment of the same

Non-apparent:
No external indication of their existence.

Question 26

What are the types of easements / servitudes as to the object or obligation imposed?

Answer 26

[Art. 616, CC]

Positive: Imposes upon the owner of the servient estate the obligation of allowing something to be done, or of doing it himself.

Negative: Prohibits the owner of the servient estate from doing something that he could lawfully do if the easement did not exist

Question 27

What are the types of easement/ servitude as to its cause or origin?

Answer 27

Legal [Art. 619 and 634, CC]: created by law, whether for public use or for the interest of private persons.
Example: Natural drainage of waters, Abutment of land, Aqueduct, etc.

Voluntary [Art. 619, CC]: created by the will of the owners of the estate through contract, last will or donation. These must be recorded in the Registry of Property to prejudice third persons.

Mixed: created partly by will or agreement and partly by law.

Question 28

Is ther such thing as a judicial easement?

Answer 28

NO.

There is no such thing as a JUDICIAL EASEMENT. The Courts cannot create easements, they can only declare the existence of one, if it exists by virtue of the law or will of the parties. [Castro v. Monsod, G.R. No. 183719 (2011)]

Question 29

What is the relevance of the different classifications of easements/servitudes?

Answer 29

1. Determines whether or not the easement can be acquired by Prescription or by title. [See Art. 620 and 622, CC]
2. Determines how to compute the prescriptive period in case it can be acquired by prescription. [Art. 621, CC]
3. Determines how easement is lost by prescription [Art. 631 (2), CC]

Question 30

How is an easement acquired?

Answer 30

a. by title or by something equivalent to a title
b. by law (legal easements)
c. by prescription

An easement is either acquired through a title/juridical act OR by prescription (only a continuous and apparent easement can be acquired through prescription)

Question 31

When is the rights neccessary for the use of the easement considered granted?

Answer 31

Upon establishment

When an easement is established, all rights necessary for its use are considered granted. [Art. 625, CC]

Question 32

How is an easement acquired by title or by something equivalent to a title?

Answer 32

a. Continuous and apparent easements may be acquired by virtue of a title. [Art. 620, CC]
b. Continuous non-apparent easements, and discontinuous ones, whether apparent or not, are acquired only by virtue of a title. [Art. 622, CC]
c. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment. [Art. 623, CC]
d. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered as a title in order that the easement may continue actively and passively. Applicable to cases of coownership
e. By Will of the Owner (Voluntary Easements)

Question 33

What does ‘something equivalent to a title’ refer to in acquiring an easement?

Answer 33

Refers to law, donations contracts or wills.

Question 34

How may continuous and apparent easements be acquired?

Answer 34

Continuous and apparent easements may be acquired by virtue of a title. [Art. 620, CC]

Question 35

What easements are acquired only by virtue of a title?

Answer 35

a. Continuous non-apparent easements, and
b. discontinuous ones, whether apparent or not,

are acquired only by virtue of a title. [Art. 622, CC]

Question 36

What are the form of ‘recognition by the owner of the serviant estate’?

Answer 36

(1) By an affidavit or a formal deed acknowledging the servitude; or
(2) By final judgment: Owner of the dominant estate must file a case in Court to have the easement declared by proving its existence through other evidence or
(3) Apparent Sign of Easement.

Question 37

How may the ‘absence of a document or proof showing the origin of an easement which cannot be acquired by prescription’ be cured?

Answer 37

may be cured by:

a. a deed of recognition by the owner of the servient estate or
b. by a final judgment.

[Art. 623, CC]

Question 38

What is the exception to the rule that “the existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered as a title in order that the easement may continue actively and passively”?

Answer 38

Exception: The title of conveyance provides for the contrary (says the easement will not continue) or the apparent sign of easement is removed before the execution of the deed of conveyance. [Art. 624, CC]

Illustration: The presence of 4 windows was considered an apparent sign that created a negative easement of light and view (altius non tollendi) i.e. not to build a structure that will cover the windows. [Amor v. Florentino, G.R. No. L48384 (1943)].

Question 39

How is an easement created by will of the owner?

Answer 39

Voluntary Easements

Every owner of a tenement or a piece of land may establish the easements that he may deem suitable and best provided he does not contravene the laws, public policy, or public order. [Art. 688, CC]

Note: If an owner constitutes an easement over his own property and makes such easement available to the general public, said owner may not arbitrarily discriminate against certain persons by not letting them use the easement. [Negros Sugar Company v Hidalgo, G.R. No. L42334 (1936)]

Question 40

Can the owner of property in usufruct impose an easement on the property without the consent of the usufructuary?

Answer 40

YES.
provided the right of the usufructuary is not injured

When the property subject of the easement is also in usufruct, the owner can impose an easement on the property, WITHOUT consent of the usufructuary; provided, the right of the usufructuary is not injured. [Art. 689, CC]

Question 41

What is required to impose an easement over co-owned property?

Answer 41

When the property is co-owned, consent of all co-owners is required to impose an easement. [Art. 691, CC]

Question 42

What is required to impose an easement, when naked ownership belongs to one person and the beneficial ownership to another?

Answer 42

consent of both owners

Whenever the naked ownership belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without the consent of both owners. [Art. 690, CC]

Question 43

Easements imposed by law have for their object either ____________ or the interest of ____________. [Art. 634, CC]

Answer 43

public use;

private persons

Easements imposed by law have for their object either public use or the interest of private persons. [Art. 634, CC]

Question 44

When may legal easements be modified by agreemnt of the interested parties?

Answer 44

These easements may be modified by agreement of the interested parties, whenever the law does not prohibit it or no injury is suffered by a third person. [Art. 636, CC]

Question 45

How may continuous and apparent easements be acquired by prescription?

Answer 45

Continuous and apparent easements may be acquired by prescription of 10 years. [Art. 620, CC]

Question 46

What are the requisites for creating an easement by prescription?

Answer 46

a. The easement must be continuous and apparent;
b. The easement must have been used for 10 years; and
c. There is no need for good faith or just title.

Question 47

What is an example of a continuous and apparent easement?

Answer 47

Example of a continuous and apparent easement is of light and view, as opposed to a right of way which is discontinuous but apparent, and thus cannot be acquired by prescription.

Question 48

Can mere passage permitted under an implied license be the basis of prescription?

Answer 48

NO.

Mere passage which was permitted and is under an implied license cannot be the basis of prescription. [Archbishop of Manila v Roxas, G.R. No. L-7386 (1912)]

Question 49

What are the rights of the Dominant Estate Owner in an Easement?

Answer 49

1. To use the easement and exercise all rights necessary for it [Art. 625, CC]
2. The owner of the dominant estate is granted the right to use the principal easement, and all accessory servitudes.
3. To make, at his own expense, on the servient estate, any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. [Art. 627(1), CC]
4. In a right of way, to ask for change in width of easement sufficient for the needs of the dominant estate. [Art. 651, CC]
5. To renounce totally the easement, if he desires to be exempt from contributing to the expenses. [Art. 628, CC]

Question 50

What is an example of the dominant estate’s right to use the principal estate, and all accessory servitudes?

Answer 50

Example: Easement of drawing water carries with it the easement of right of way to the place where water is drawn.

Question 51

What is the limitation on the right of the dominant estate to ‘use the principal easement, and all accessory servitudes’?

Answer 51

Limitation: Only for the original immovable and the original purpose.

Question 52

What determines the width of passage in a right of way?

Answer 52

The needs of the dominant property ultimately determine the width of the passage. And these needs may vary from time to time. [Encarnacion v. CA, G.R. No. 77628 (1991)]

Question 53

What are the obligations of the dominant estate?

Answer 53

1. To USE the easement for the benefit of immovable and in the manner originally established [Art. 626, CC]
2. To NOTIFY the owner of the servient estate before making repairs and to make repairs in a manner least inconvenient to the servient estate [Art. 627(2), CC]
3. NOT TO ALTER the easement or render it more burdensome. [Art. 627, CC]
4. To CONTRIBUTE to expenses of works necessary for use and preservation of servitude, if there are several dominant estates. [Art. 628, CC] The contribution is in proportion to the benefits which each may derive from the work.

Question 54

In an easement of a right of way, widening the road means making the easement more _________. [Valderrama v. North Negros Sugar Co., G.R. No. L-23810 (1925)]

Answer 54

burdensome

Question 55

What are the rights of the Servient Estate Owner?

Answer 55

1. To RETAIN the ownership of the portion of the estate on which the easement is established [Art. 630, CC]
2. To USE the easement, provided he shall also be obliged to pay the expenses necessary for the preservation and use of the servitude. [par. 2, Art. 628, CC]

Exception to paying expenses: There is an agreement to the contrary.

3. To CHANGE the place or manner of the use of the easement, provided it be equally convenient [par. 2, Art. 629, CC]

Question 56

When may the servient estate owner change the easement?

Answer 56

In case the easement becomes very inconvenient for the servient estate owner, or if it prevents him from making any important works, repairs, or improvements, the easement MAY BE CHANGED,

Question 57

What are the requirements for the an easement to be changed by the servient estate owner?

Answer 57

1. He offers another place/manner equally convenient
2. Does not cause injury to the dominant estate owner
3. Does not cause injury to those who have a right to use the easement, if any.

Question 58

What are the obligations or the Servient Estate?

Answer 58

1. Not to impair the use of the easement [Art. 629(1), CC]
2. To contribute proportionately to expenses if he uses the easement [Art. 628(2), CC]

Exception: Unless there is an agreement to the contrary.

3. To pay for the expenses incurred for the change of location or form of the easement

Question 59

What are the ways by which an easement may be extinguished (Art 631, CC)?

Answer 59

[MINERRO – Merger, Impossibility, Non-use, Expiration, Renunciation, Redemption, Other causes]

a. By merger in the same person of the ownership of the dominant and servient estates
b. By non-user for ten years
c. Impossibility of use
d. By the expiration of the term or the fulfillment of the resolutory condition - applies only to voluntary easements.
e. By the renunciation of the owner of the dominant estate
f. By the redemption agreed upon between the owners of the dominant and servient estates

Question 60

What is required for an easement to be extinguished through merger?

Answer 60

By merger in the same person of the ownership of the dominant and servient estates

– must be absolute, perfect and definite, and not merely temporary. If the merger is temporary, there is at most a suspension of the easement, but no extinguishment.

Question 61

What is required for an easement to be extinguished through non-use?

Answer 61

By non-user for ten years – there is inaction, and not outright renunciation. This is due to the voluntary abstention by the dominant owner, and not due to a fortuitous event.

– If discontinuous easement, period is counted from day it ceased to be used. If continuous easement, counted from the day an act adverse to the exercise of the right of easement took place.
– Note use by a co-owner bars prescription as to others as well. [Art. 633, CC]

Question 62

How is the ten years counted for the extinguishment of an easement by non-use?

Answer 62

a. If discontinuous easement, period is counted from day it ceased to be used.
b. If continuous easement, counted from the day an act adverse to the exercise of the right of easement took place.

Question 63

What is required for impossibility of use to extinguish an easement?

Answer 63

Impossibility of use – impossibility referred to must render the entire easement unusable for all time. Impossibility of using the easement due to the condition of the tenements (e.g. flooding) only suspends the servitude until it can be used again.

Exception: If the suspension exceeds 10 years, the easement is deemed extinguished by non-use.

Question 64

What is required for ‘renunciation of the owner of the dominant estate’ to extinguish the easement?

Answer 64

By the renunciation of the owner of the dominant estate – must be specific, clear, express (distinguished from non-user);

Question 65

What are the other causes or the extinguishment of an easement not mentioned in Art. 631?

Answer 65

a. Annulment and rescission of the title constituting the voluntary easement;
b. Termination of the right of grantor of the voluntary easement;
c. Abandonment of the servient estate; Owner of the servient estate gives up ownership of the easement (e.g. the strip of land where the right of way is constituted) in favor of the dominant estate.

The easement is extinguished because ownership is transferred to the dominant owner, who now owns both properties.

d. Eminent domain; The government’s power to expropriate property for public use, subject to the payment of just compensation.
e. Special cause for extinction of legal rights of way: if right of way no longer necessary. [Art. 655, CC]

Question 66

When does the right of way ceases to be necessary (a cause for the extinguishment of easement)?

Answer 66

[Art. 655, CC]:

– Owner of the dominant estate has joined to another abutting on a public road.

– A new road is opened giving access to the isolated estate.

– Owner of the servient estate must return indemnity he received (value of the land) with interest deemed as rent.

– Requisite: the public highway must
substantially meet the needs of the dominant estate.

Question 67

When may the owner of the servient estate burdened by the right of way demand the easement to be extinguished?

Answer 67

The Owner of the servient estate burdened
by the right of way may demand that the easement be extinguished when it is shown that the easement ceases to be necessary [Art. 655, CC]

Question 68

Easements imposed by law have for their object either __________ of the interest of _________. [Art. 634, CC]

Answer 68

public use;

private persons

Question 69

What are the laws governing legal easements for public use?

Answer 69

• Special laws and regulations relating thereto. (e.g. PD 1067 (Water Code) and PD 705 (Forestry Code))
• By the provisions of Chapter 2, Title VII, Book II, CC.

Question 70

What governs private legal easements?

Answer 70

• By AGREEMEN of the interested parties whenever the law does not prohibit it and no injury is suffered by a 3rd person.
• By the provisions of Chapter 2, title VII, Book II.

Question 71

What are the kinds of private legal easements provided by the New Civil Code?

Answer 71

1. Those established for the use of waters or relating to waters
2. Right of Way [649-657]
3. Party Wall [658-666]
4. Easement of Light and View [667-673]
5. Drainage of Buildings [674]
6. Intermediate Distances
7. Lateral and Subjacent Support [684-687]
8. Easement Against Nuisance [682-683]

Question 72

What are the easement established for the use of waters or relating to waters?

Answer 72

a. natural drainage [673]
b. riparian banks [638]
c. abutment of a dam [639]
d. drawing water and watering animals [640-641]
e. aqueducts [642-646]
f. stop lock or sluice gate [649]

Question 73

What is the easement of Natural Drainage?

Answer 73

[ART. 637, CC]

Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates (as well as the stones or earth which they carry with them).

Question 74

What is the easement of Riparian Banks?

Answer 74

[ART. 638, CC]
The banks of rivers and streams are subject throughout their entire length and within a zone of 3 meters for urban areas, 20 meters for agricultural areas and 40 meters for forest areas (PD 1067, Water Code as amended by PD 1067) along their margins, to the easement of public use in the general interest of navigation, floatage, fishing, recreation and salvage.

Estates adjoining the banks of navigable or floatable rivers are subject to the easement of towpath for the exclusive service of river navigation and floatage. If it be necessary to occupy lands of private ownership, the proper indemnity shall first be paid.

Question 75

What is a towpath?

Answer 75

a path beside a river or canal, originally used as a pathway for horses towing barges

Question 76

Estates adjoining the banks of navigable or floatable rivers are subject to what easement?

Answer 76

Towpath

Question 77

What is the easement of Abutment of a Dam?

Answer 77

[ART. 639, CC]

Whenever for the diversion of water it should be necessary to build a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after payment of the proper indemnity.

Question 78

What is the easement of Drawing Water and Watering Animals?

Answer 78

Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity.

Question 79

What is the accessory obligation of the easementof drawing water and watering animals?

Answer 79

Accessory Obligation: To allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service.

Question 80

What is the limitation on the easement of drawing water and watering animals?

Answer 80

Limitation as to measurements of easement: Width must not exceed 10 meters [Art. 657, CC].

Question 81

What is the easement of Aqueduct?

Answer 81

– with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend.

Question 82

What are the requisites to establish easement of Aqueduct?

Answer 82

[Art. 643]:

a. To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;
b. To show that the proposed right of way is the most convenient and the least onerous to third persons;
c. To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

Question 83

What are which the easement of aqueduct cannot be imposed on?

Answer 83

What it cannot be imposed on [Art. 644, CC]: Easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing.

Question 84

What is the right of the servient estate owner in the easement of aqueduct?

Question 85

What is the treatment of an aqueduct under the law?

Answer 85

[Art. 646, CC]:

This easement is considered as continuous and
apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours.

N.B.: In the appropriation of water, there is a need to apply for water rights.

Question 86

What is the easement of Stop Lock or Sluice Gate?

Answer 86

[ART. 649, CC]

The construction of a stop lock or sluice gate in the bed of the stream from which the water is to be taken, for the purpose of improving an estate.

Such person may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators.

Question 87

Who may demand a Right of Way?

Answer 87

a. The owner of the dominant estate; or

b. Any person with the real right to cultivate or use the dominant estate e.g. a usufructuary, a de jure possessor.

Question 88

Can a lessee demand the easement of right or way?

Answer 88

NO.

a lessee cannot demand such easement, because the lessor is the one bound to maintain him in the enjoyment of the property.

Question 89

When will the provisions on the legal easement of right of way will not govern?

Answer 89

When established through the will of the parties

Note: A right of way can be established through the will of parties as well, and the provisions on the legal easement of right of way will not govern.

Question 90

What are the requisites for legal demant to establish the easment of right of way?

Answer 90

[Art. 649 and Floro v. Llenado, G.R. No. 75723, 1995]]:

a. The dominant estate is surrounded by other immovables owned by other persons;
b. There must absolutely be no access i.e. means of entrance or exit/egress to a public highway;
c. Even if there is access, it is difficult or dangerous to use, or grossly insufficient;
d. The isolation of the immovable is NOT due to the dominant owner’s own acts e.g. if he constructs building to others obstructing the old way; and
e. There is payment of indemnity;

Question 91

Does mere inconvenience in the use of an outlet (re right of way) render the easement a necessity?

Answer 91

NO

Question 92

What is an adequate outlet (re right of way)?

Answer 92

An adequate outlet is one that is sufficient for the purpose and needs of the dominant owner, and can be established at a reasonable expense;

Question 93

Does an outlet have to be by land? (re right of way)

Answer 93

NO.

Does not necessarily have to be by land – an outlet through a navigable river or a lake or the sea if suitable to the needs of the tenement is sufficient;

Question 94

What is the amount of indemnity if the right of way is permanent and continuous for the needs of the dominant estate?

Answer 94

If right of way is permanent and continuous for the needs of the dominant estate = value of the land + amount of damage caused to the servient estate;

Question 95

What is the amount of indemnity if the right of way is limited to the necessary passage for cultivation of the estate and for gathering crops, without permanent way?

Answer 95

If right of way is limited to necessary passage for cultivation of the estate and for gathering crops, without permanent way = damage caused by encumbrance.

Question 96

What criterion must prevail in establishing a right of way?

Answer 96

The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through.

[Quimen v. CA, G.R. No. 112331 (1996)]

Question 97

can other means egress to the public highway extinguish a voluntary easement?

Answer 97

NO

The fact that LGV had other means of egress to the public highway cannot extinguish the said easement, being voluntary and not compulsory. The free ingress and egress along Mangyan Road created by the voluntary agreement between the parties is thus legally demandable with the corresponding duty on the servient estate not to obstruct the same. [La Vista Association v. CA, G.R. No. 95252 (1997)]

Question 98

What is the indemnity obligation in a permanent right of way?

Answer 98

Consists of the damages and the value of the land.

Question 99

What is the indemnity obligation in a temporary right of way?

Answer 99

Consists of the damages only.

Question 100

Who is obligated for necessary repairs in a permanent right of way?

Answer 100

Dominant owner to spend.

Question 101

Who is obligated for necessary repairs in a temporary right of way?

Answer 101

Servient owner to spend.

Question 102

Who is obliged to pay taxes on a permanent right of way?

Answer 102

The dominant owner shall reimburse a
proportionate share of
taxes to the proprietor of the servient estate

Question 103

Who is obligated to pay taxes in a temporary right of way?

Answer 103

Servient owner to spend on such.

Question 104

Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.

Buyer, grantee or donee as dominant owners

Sale Exchange or partition?

Answer 104

The buyer or grantee shall grant the right of way without indemnity.

Question 105

Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.

Buyer, grantee or donee as dominant owners

Donation?

Answer 105

The donee shall pay the donor indemnity.

Question 106

Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.

Seller, grantor or donor as dominant owners

Sale, exchange or partition?

Answer 106

The seller or grantor shall pay indemnity.

Question 107

Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.

Seller, grantor or donor as dominant owners

Donation

Answer 107

The donee shall grant

the right of way without indemnity.

Question 108

Is extinguishment easement (right of way) automatic?

Answer 108

NO

Extinguishment is not automatic. The owner of the servient estate must ask for such extinguishment.

Question 109

What happens to the indemnity when the easement is extinguished?

Answer 109

Indemnity paid to the servient owner must be returned without interest. Interest on account of indemnity is deemed to be rent for use of easement.

Question 110

What are Special Rights of Way?

Answer 110

a. Right of way to carry materials for the construction, repair, improvement, alteration or beautification of a building through the estate of another.
b. Right of way to raise on another’s land scaffolding or other objects necessary for the work.

If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. [Art. 656, CC]

c. Right of way for the passage of livestock known as animal path, animal trail, watering places, resting places, animal folds. [Art. 657, CC]

Question 111

Easements of the right of way for the passage of livestock shall be governed by what?

Answer 111

ordinances and regulations relating thereto

usages and customs of the place

Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place.

Question 112

What is the limitations as to measurements of animal path?

Answer 112

Max width of 75 meters.

Question 113

What is the limitations as to measurement of animal trail?

Answer 113

Max width of 37 meters and 50 centimeters

Question 114

What is the limitations as to measurement for a watering place for animals?

Answer 114

Max width of 10 meters

Question 115

What is a Party-Wall?

Answer 115

A common wall which separates two estates, built by common agreement at the dividing line such that it occupies a portion of both estates on equal parts.

A party wall is a special form of co-ownership
(see Art. 658, CC).

Question 116

How is a party wall a special form of co-ownership?

Answer 116

– Each owner owns part of the wall but it cannot be separated from the other portions belonging to the others. A party wall has a special characteristic that makes it more of an easement as it is called by law.

– An owner may use a party wall to the extent of the ½ portion on his property.

Question 117

What is the difference bet. a co-ownership and a party wall re. identifying shares of co-owners?

Answer 117

Party Wall:
Shares of the co-owners cannot be physically segregated but they can be physically identified.

Co-Ownership:
Co-Ownership
Before division of shares, a co-owner cannot point to any definite portion of the property as belonging to him.

Question 118

What is the difference bet. a co-ownership and a party wall re. limitation of use?

Answer 118

Party Wall:
There is no such limitation.

Co-Ownership:
None of the co-owners may use the community property for his exclusive benefit
because he would be invading the rights of the others.

Question 119

What is the difference bet. a co-ownership and a party wall re. renunciation of rights?

Answer 119

Party Wall:
Any owner may free himself
from contributing to the cost of repairs and construction of a party wall by renouncing all his rights thereto.

Co-Ownership:
In a co-ownership, partial renunciation is allowed.

Question 120

When the existence of easement of party wall is presumed?

Answer 120

a. In dividing walls of adjoining buildings up to the point of common elevation.
b. In dividing walls of gardens or yards situated in cities, or towns, or in rural communities.
c. In fences, walls and live hedges dividing rural lands.

Question 121

How is the presumtion of a party wall rebutted?

Answer 121

A title or an exterior sign, or any other proof showing that the entire wall in controversy belongs exclusively to one of the adjoining property owners may rebut these presumptions.

Question 122

When is it presumed that there is an exterior sign, contray to the easement of party wall?

Answer 122

[Art. 660, CC]

a. Whenever in the dividing wall of buildings there is a window or opening.
b. Whenever one side is straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward.
c. Whenever the entire wall is built within the boundaries of one of the estates.
d. Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others.
e. Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates.
f. Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other.
g. Whenever lands enclosed by fences or live hedges adjoin others that are not enclosed.

Note: The deposit of earth or debris on one side alone is an exterior sign that the owner of that side is the owner of the ditch or drain. The presumption is an addition to those enumerated in Art. 660, CC, found in Art. 661, CC.

Question 123

What is the presumption re ditches or drains opened between two estate?

Answer 123

presumed common to both, if there is no title or sign showing teh contrary

[Art. 661]

Question 124

What are the rights of owners of a party wall?

Answer 124

a. Generally, part-owners may use the wall in proportion to their respective interests,
provided that [Art. 666, CC]:
– The right to use by the other party is not interfered with;
– The consent by the other owner is needed if a party wants to open a window; and
– The condition of the building is determined by experts.

b. To increase the height of the wall [Art. 664, CC].
– He does this at his expense, including the thickening of the wall on his land.
– He shall indemnify the other party for any damages.

c. To acquire a half-interest in any increase in height or thickness of the wall, paying a proportionate share in the cost of the work and the value of the land covered [Art. 665, CC].

d. To renounce his part ownership of a party wall if he desires to demolish his building supported by the wall. [Art. 663, CC]
– He shall bear all the expenses of repairs and work necessary to prevent any damage which the demolition may cause to the party wall.

Question 125

What are the limitations to the right of part-owners to use a party wall?

Answer 125

– The right to use by the other party is not interfered with;

– The consent by the other owner is needed if a party wants to open a window; and

– The condition of the building is determined by experts.

Question 126

What are the limitations to the right of part-owners to increase the height of a party wall?

Answer 126

– He does this at his expense, including the thickening of the wall on his land.

– He shall indemnify the other party for any damages.

Question 127

What are the obligations of the part-owner who desires to demolish his building supported by the party-wall?

Answer 127

– He shall bear all the expenses of repairs and work necessary to prevent any damage which the demolition may cause to the party wall.`

Question 128

What are the obligations of owners of a party wall?

Answer 128

To contribute proportionately to the repair and maintenance of the party wall [Art. 662, CC].

Question 129

What is the exception to the obligation to contribute to repair and maintenance of party wall by the owners?

Answer 129

Exception: He renounces his part-ownership, and this includes the renunciation of the share in the wall and the land

Exception to exception: He cannot renounce his part if his building is being supported by the party wall

Question 130

When is renunciation of part-ownership of a party wall not allowed?

Answer 130

He cannot renounce his part if his building is being supported by the party wall

Question 131

What are the obligations of an owner who raises the height of the party wall?

Answer 131

[Art. 664, CC]:

1. Bear the cost of maintenance of the additions;
2. Bear the cost of construction, if the wall cannot support the additional height;
3. Give additional land, if necessary to thicken the wall;
4. Pay for damages, if necessary, even if temporary; and
5. Bear the increased expenses for preservation

Question 132

What is an Easement of Light?

Answer 132

jus luminum - is the right to admit light from the neighboring estate by virtue of the opening of a window or the making of certain openings.

Question 133

What is an Easement of view?

Answer 133

jus prospectus - is the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or works which would obstruct such view or make the same difficult.

The easement of view necessarily includes the easement of light, because It is impossible to have a view only without a light. However, it is possible to have light without a view.

Question 134

How is the Easement of Light and View Acquired?

Answer 134

Through period of prescription of 10 years, counted depending on whether it was positive or negative in nature.

Question 135

When is an easement of light and view positive in nature?

Answer 135

Positive: Opening a window through a party wall

Question 136

When is an easment of light and view negative in nature?

Answer 136

Negative: Opening a window through a wall on the dominant estate

Question 137

When does prescription begin on easement of light and view positive in nature?

Answer 137

1Period of prescription begins upon the opening being made through the wall of another.

• When a part owner of a party wall opens a window therein, such act implies the exercise of the right of ownership by the use of the entire thickness of the wall.

The easement is created only after the lapse of the prescriptive period.

Question 138

What does prescription begin on easement of light and view negative in nature?

Answer 138

1. Period of prescription begins upon the formal prohibition upon the owner of the adjoining land or tenement. Formal means that the prohibition has been notarized. Meaning notice and demand was given to the owner of the possible servient estate [Cortes v Yu-Tibo, G.R. No. 911 (1903)]

• When a person opens a window on his own building, he is exercising his right of ownership on his property, which does not establish an easement.

2. Coexistent is the right of the owner of the adjacent property to build or plant on his own land, even if such structures or planting cover the window.
3. If the adjacent owner does not build structures to obstruct the window, such is considered mere tolerance and NOT a waiver of the right to build.
4. An easement is created only when the owner opens up a window and subsequently prohibits or restrains the adjacent owner from doing anything that may tend to cut off or interrupt the light and the 10-year prescriptive period has lapsed by a notarial prohibition.

Question 139

What is the general rule on measurements of easement of light and view?

Answer 139

General Rule: If an easement is acquired to have direct views, balconies or belvederes, the owner of the servient estate must not build at less than 3 meters from the boundary line of the two tenements. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters. [Art. 670, CC].

Exception: In buildings separated by a public way or alley, not less than 3 meters wide, the distances required (2 m, 60 cm) do not apply [Art/ 672, CC].

Exception: The distances may be stipulated by the parties, PROVIDED: The distance should not be less than what is prescribed by the law (2 meters and 60 cm).

Note: Breach of the required distances results into the prescriptive period not running.

Question 140

What is the period of acquisitive prescription on the easement of light and view?

Answer 140

Period of acquisitive prescription depends upon whether the easement of light and view is positive or negative.

• If positive, then the prescription period is counted from the day the window is opened.
• If negative, then the prescription period is counted from the formal prohibition made on the owner of the servient estate.

Question 141

What is the easement of Drainage of Buildings?

Answer 141

The owner of a building is 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.

The true easement is Article 675 where the adjacent estate has the obligation of receiving the rain water falling from a neighboring roof and giving it an outlet on his own lot so as not to cause damage to the dominant estate.

Easement of drainage if buildings [Art. 676, CC] – to give outlet to rain water collected

Question 142

What is the easement re Intermediate Distances?

Answer 142

[Arts. 677-681, CC]
Prohibiting the contraction and plantings near fortified places or fortresses without complying with special laws, ordinances and regulations relative hereto. Art. 677, CC, in effect, establishes an easement in favor of the State. The general prohibition is dictated by the demands of national security.

The following must comply with the regulations or customs of the place:

a. Construction of aqueduct, well, sewer, etc. [Art. 678, CC]
b. Constructions, which by reason of their nature or products are dangerous or noxious.

Question 143

What is the rule in planting trees in Intermediate distances?

Answer 143

Planting of trees [Art. 679, CC]

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.

Question 144

In the absence of regulations what is the rule re planting trees?

Answer 144

a. At least 2 meters from the dividing line of the estates if tall trees are planted.
b. At least 50 centimeters if shrubs or small trees are planted.

In case of violation, a landowner shall have the right to demand the uprooting of the plant even if it has grown spontaneously.

Question 145

What is the rule re Branches, Roots and Fruits in Intermediate Distances?

Answer 145

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.

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.

Fruits naturally falling upon adjacent land belong to the owner of said land.

Question 146

What is the Easement of Lateral and Subjacent Support?

Answer 146

The proprietor is prohibited from making dangerous excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support.

Easement of lateral and subjacent support is deemed essential to the stability of buildings.

Question 147

When is a support lateral?

Answer 147

Support is lateral when a vertical plane divides the supported and supporting lands.

Question 148

When is a support subjacent?

Answer 148

Support is subjacent when the supported land is above the supporting land.

Question 149

What is an Easement against Nuisance?

Answer 149

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. [Art. 682, CC].

Question 150

Easement against Nuisance

Factories and Shops

Answer 150

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. [Art. 683, CC]