Title VII. - Easements or Servitudes

Question 1

What is an easement?

Answer 1

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.

Other definitions:

• “a real right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.”
• An encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by virtue of which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate.

Question 2

Distinguish easement from servitude.

Answer 2

Easement is an English law term while servitude, which is derived from Roman Law, is the name used in civil law countries.

However, they do not exactly have the same meaning. Servitude is the broader term. It may be real or personal. Easement is always real. It is said that easement refers to the right enjoyed by one, and servitude, the burden imposed upon another.

Question 3

What are the characteristics of an easement?

Answer 3

The characteristics of an easement are:

1. It is a real right but will affect third persons only when duly registered;
2. It is enjoyed over another immovable, never on one’s own property;
3. It involves two neighboring estates (in cases of real easement);
4. It is inseparable from the estate to which it is attached; cannot be alienated independently
5. Indivisible; not affected by division;
6. Right limited by the needs of dominant owner or estate; without possession;
7. Cannot consist in the doing of an act unless act is accessory in relation to easement;
8. Limitation on the servient owner’s right.

Question 4

Distinguish easement from lease.

Answer 4

Easement distinguished from lease.

1. Easement is a real right, whether registered or not, and whether it is real or personal, while lease is a real right only when it is registered, or when its subject matter is real property and the duration exceeds one year;
2. Easement is imposed only on real property, while lease may involve either real or personal property; and
3. In easement, there is a limited right to the use of real property of another but without the right of possession, while in lease, there is a limited right to both the possession and use of another’s property.

Question 5

Distinguish easement from usufruct

Answer 5

Easement vs. usufurcut

1. Easement is imposed only on real property, while usufruct may involve either real or personal property;
2. Easement is limited to a particular or specific use (e.g. right of way) of the servient estate, while usufruct includes all the uses (jus utendi) and the fruits (jus fuendi) of the proeprty;
3. Easement is non-possessory right over an immovable or movable; and
4. Easement is not extinguished by the death of the dominant owner, while usufruct is, as a rule, extinguished by the death of the usufructuary.

Question 6

What are the two types of estate in an easement?

Answer 6

Dominant and servient estate.

Art. 613. par.2. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.

Question 7

What are the classifications of easements?

Answer 7

Classification of easements:

1. As to recipient or benefit – (a) Real; (b) Personal;
2. As to source - (a) Voluntary; (b) Legal; (c) Mixed;
3. As to exercise - (a) Continuous; (b) Discontinuous;
4. As to whether or not its existence is indicated - (a) Apparent; (b) Non-apparent; or
5. As to duty of the servient owner - (a) Positive; or (b) Negative.

Question 8

Art. 614. Servitudes may also be established for the benefit of a […], or of […] to whom the encumbered estate does not belong.

Answer 8

Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong.

Question 9

When is an easement real, and personal?

Answer 9

An easement is real when it is established in favor of another immovable (Art. 613);

An easement is personal when it is established in favor of a community or one or more persons (Art. 614).

Question 10

When is an easement voluntary, when is it legal, and when is it mixed?

Answer 10

An easement is voluntary when the easement is established by the will or agreement of the parties or by a testator (Art. 619);

An easement is legal when it is imposed by law either for public use or in the interest of private persons. (Art. 637-687).

An easement is mixed when it is created partly by will or by law.

Question 11

When is an easement continuous and when is it discontinuous?

Answer 11

An easement is continuous when the use of which may be incessant, without intervention of any act of man;

An easement is discontinuous when they are used at intervals and depend upon the acts of man.

Question 12

When is an easement apparent and when is it non-apparent?

Answer 12

An easement is apparent when they are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same;

An easement is non-apparent when they show no external indication of their existence.

Question 13

When is an easement positive, and when is it negative?

Answer 13

An easement is positive when it imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself;

An easement is negative when it prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. [Art. 616]

Question 14

Art. 61. Easements may be continuous or discontinuous, apparent or non-apparent.

[…] are those the use of which is or may be incessant, without the intervention of any act of man.

[…] are those which are used at intervals and depend upon the acts of man.

[…] are those which are made known ad are continually kept in view by external signs that revel the use and enjoyment of the same.

[…] are those which show no external indication of their existence.

Answer 14

Art. 61. Easements may be continuous or discontinuous, apparent or non-apparent.

Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man.

Discontinuous easements are those which are used at intervals and depend upon the acts of man.

Apparent easements are those which are made known ad are continually kept in view by external signs that revel the use and enjoyment of the same.

Non-apparent easements are those which show no external indication of their existence.

Question 15

What is the difference a positive and a negative estate?

Answer 15

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

Question 16

Are easements separable from the estates which they belong to?

Answer 16

No. Art. 617. Easements are inseparable from the estate to which they actively or passively belong.

Note: Servitudes are inseparable from the estate to which they actively or passively belong being accessory things whose very existence depends upon the principal thing (immovable). As a consequence, they are intransmissible in the sense that they cannot be alienated or mortgaged independently of the estate.

Question 17

Will the partition of a co-owned servient estate affect an easement?

Answer 17

No. Art. 618. Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him.

If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way.

Question 18

How are easements established?

Answer 18

Art 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.

Notes: (1) Courts cannot impose or constitute any servitude where non existed. They can only declare its existence if in reality it exists by law or by the will of the owners. There are no judicial easements.

(2) Voluntary easements must be recorded in the Registry of Property in order not to prejudice third persons. (Art. 708)

Question 19

What are the modes of acquiring easements?

Answer 19

Under Sec. 2 of Title VII. the modes of acquiring easements are:

1. By title. – All easements
   
   1. continuous and apparent easements (Art. 620)’
   2. continuous and non-apparent easements (Art. 622); and
   3. Discontinuous easements, whether apparent or non-apparent (Ibid);
2. By prescription of ten years. – continuous and apparent easements (Art. 620);
3. By deed of recognition (Art. 623);
4. By final judgment (Ibid.); and
5. By apparent sign established by the owner of two adjoining estates (Art. 624).

Question 20

How are continuous and apparent easements acquired?

Answer 20

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

Note: (1)Only apparent easements may be acquired either by virtue of a title or by prescription in ten years. The other kinds of easements by any one of the modes enumerated but not by prescription.

(2) “Title” refers to the juridical act which gives birth to the easement; In prescription of easement, it is always 10 years. It does not matter if the possessor was in good faith or bad faith.

Question 21

What is the reckoning point in the acquisition of easements by prescription?

Answer 21

Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement.

Question 22

How may continuous non-apparent easements and discontinuous easements be acquired?

Answer 22

Art. 622 Continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only virtue of a title.

Question 23

Art. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by […].

Answer 23

Art. 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.

Question 24

in case of alienation, may an apparent sign be considered as a title?

Answer 24

Yes. Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be proved in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the division of a thing owned in common by two or more persons.

Question 25

What is the effect of an establishment of an easement?

Answer 25

Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted.

Question 26

What is the limitation on the owner of the dominant estate’s right to use the easement?

Answer 26

Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

Question 27

May the dominant owner make any works on the easement?

Answer 27

Yes. Art. 627. The owner of the dominant estate may 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.

For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate.

Question 28

What are the rights of the dominant owner?

Answer 28

The rights of the dominant owner:

1. TO exercise all the rights necessary for the use of the easement (Art. 625);
2. To make on the servient estate all works necessary for the use and preservation of the servitude (Art. 627, par. 1.);
3. To renounce the easement if he desires to exempt himself from contribution to necessary expenses (Art. 628 par .1);
4. To ask for mandatory injunction to prevent impairment of his use of the easement. (Resolme v Lazo)

Question 29

What are the obligations of the dominant owner?

Answer 29

The obligations of the dominant owner:

1. He cannot alter the easement or render it more burdensome (Art. 627, par. 1)
2. He shall notify the servient owner of works necessary for the use and preservation of the servitude (Art. 627 par 2);
3. He must choose the most convenient time and manner in making the necessary works as to cause the least inconvenience to ther servient owner (ibid);
4. He must contribute to the necessary expenses if there are several dominant estates in proportion to the benefits derived from the works. (Art. 628 par. 1)

Question 30

What are the rights of the servient owner?

Answer 30

The rights of the servient owner:

1. To retain the ownership of the portion of the estate on which the easement is established. (Art. 630)
2. To make use of the easement (Art. 628 par 2) unless there is an agreement to the contrary; and
3. To change the place or manner of the use of the easement, provided it be equally convenient (Art. 629 par 2)

Question 31

What are the obligations of the servient owner?

Answer 31

Obligations of the servient owner:

1. He cannot impair the use of the easement; and
2. He must contribute to the necessary expenses in case he uses the easement, unless there is an agreement to the contrary.

Question 32

Who shall bear the expenses for the necessary works in case there are several dominant estates?

Answer 32

Article 628. Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others.

If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary. (544)

Question 33

May the servient owner change the course of the easement?

Answer 33

Yes. Article 629. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.

Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement. (545)

Question 34

Does the owner of the servient estate retain ownership of the portion of the easement?

Answer 34

Yes. Article 630. The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement. (n)

Question 35

How are easements extinguished?

Answer 35

Article 631. Easements are extinguished:

1. By merger in the same person of the ownership of the dominant and servient estates;
2. By non-use for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;
3. When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;
4. By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;
5. By the renunciation of the owner of the dominant estate;
6. By the redemption agreed upon between the owners of the dominant and servient estates. (546a)

Question 36

May the parties prescribe the form and manner of using the easement?

Answer 36

Yes. Article 632. The form or manner of using the easement may prescribe as the easement itself, and in the same way. (547a)

Question 37

Article 633. If the dominant estate belongs to several persons in common, the use of the easement by any one of them […]. (548)

Answer 37

Article 633. If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others. (548)

Question 38

What are the kinds of legal easements?

Answer 38

Kinds of legal easements:

1. Public legal easements - for public or communal use;
2. Private legal easements - interest of private persons;
   
   1. waters;
   2. right of way;
   3. party wall
   4. light and view;
   5. drainage;
   6. intermediate distances;
   7. against nuisance;
   8. lateral and subjacent support

Question 39

What are the governing laws of legal easements?

Answer 39

Governing laws:

1. Public legal easements - special laws and regulations, Civil Code, Art. 634-687
2. Private legal easements:
   
   1. Agreement;
   2. General or local laws and ordinances for general welfare;
   3. provisions of the Civil Code

Question 40

What are the legal easements relating to waters?

Answer 40

Legal easements relating to waters:

1. Natural drainage;
2. Drainage o buildings;
3. Easement on riparian banks for navigation, floatage, fishing, salvage, and towpath;
4. Easement of a dam;
5. Easement for drawing water or for watering animals;
6. Easement of aqueduct; and
7. Easement for the construction of a stop lock or sluice gate

Question 41

What is an easement of aqueduct?

Answer 41

Easement of aqueduct - the right arising from a forced easement by virtue of which the owner of an estate who desires to avail himself of water for the use of said estate may make such waters pass through the intermediate estate with the obligation of indemnifying the owner of the same and also the owner of the estate to which the water may filter or flow.

Question 42

What is an easement of right of way?

Answer 42

Easement of right of way is the right granted by law to the owner of an estate which is surrounded by other estates belonging to other persons and without an adequate outlet to a public highway to demand that he be allowed a passageway throughout such neighboring estates after payment of the proper indemnity.

Question 43

What are the requisites for the easement of right of way?

Answer 43

Requisites of the easement of right of way:

1. Claimant must be an owner of enclosed immovable or one with real right;
2. There must be no adequate outlet to a public highway;
3. The right of way must be absolutely necessary;
4. The isolation must not be due to the claimant’s own act;
5. The easement must be established at the point least prejudicial to the servient estate;
6. There must be payment of proper indemnity.

Question 44

What are the two kinds of easement of right of way?

Answer 44

1. Private - when it is established in favor of a private person, such as the right granted in Art. 649; or
2. Public, when it is available in favor of the community or public at large;

Question 45

Difference between permanent and temporary right of way.

Answer 45

Article 654. If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. (n)

Question 46

What is a party wall?

Answer 46

A party wall is 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.

Question 47

What is an easement of light and view?

Question 48

Differentiate positive easement of light and view from engative easement of light and view