Easement / Servitude Flashcards
1
Q
What is an Easement / Servitude?
A
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.
2
Q
What is an easement or servitude based on the civil code?
A
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]
3
Q
What are the two estates involved in an easement / servitude?
A
Dominant Estate – the immovable in favor of which the easement is established.
Servient Estate – the immovable which is subject to the easement.
4
Q
What is the Dominant Estate in an easement / sevitude?
A
Dominant Estate – the immovable in favor of which the easement is established.
5
Q
What is the Servient Estate in an easement / servitude?
A
Servient Estate – the immovable which is subject to the easement.
6
Q
What are the essential features of an easement/ servitude?
A
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
7
Q
What does it mean for an easement / servitude to be a real right?
A
– 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.
8
Q
Can an easement / servitude exists in one’s own property?
A
NO.
It is a right enjoyed over another’s property (jus in re aliena
9
Q
Can an easement / servitude be constituted over over immovable properties by incorporation, by destination or by analogy?
A
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]
10
Q
Can an easement / sevitude be established on things beyond the commerce of man?
A
NO
They cannot be established on things beyond the commerce of man, (i.e. property of public dominion).
11
Q
Does an easement / servitude give the right to own and possess the servient estate?
A
NO.
Only Right of limited use
but no right to own and possess the servient estate.
12
Q
What relations exists between the owner of of the dominant estate and the servient estate?
A
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.
13
Q
What are Praedial servitudes?
A
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.
14
Q
Can easements exist without tenements?
A
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.
15
Q
Can an easement / servitude be alienated separately from the tenement affected or benefited?
A
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.
16
Q
What does it mean for an easement / servitude to be indivisible?
A
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.
17
Q
What does it mean for an easement / servitude to have permanence?
A
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.
18
Q
What is the difference between an easement and a lease?
A
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
19
Q
What is the difference bet. an easement and a usufruct?
A
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
20
Q
What are the general rules re. Easements / Servitudes?
A
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.
21
Q
What is the exception to the general rule that ‘a servitude cannot consist in doing’?
A
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.
22
Q
What are the different ways of classifying an easement/ servitude?
A
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
23
Q
What are the types of easement / servitude as to recipient of benefits?
A
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]
24
Q
What are the types of easement / servitude as to its exercise?
A
[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.
25
What are the types of easements / servitudes as to indication of its existence?
[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.
26
What are the types of easements / servitudes as to the object or obligation imposed?
[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
27
What are the types of easement/ servitude as to its cause or origin?
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.
28
Is ther such thing as a judicial easement?
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)]
29
What is the relevance of the different classifications of easements/servitudes?
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]
30
How is an easement acquired?
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)
31
When is the rights neccessary for the use of the easement considered granted?
Upon establishment
When an easement is established, all rights necessary for its use are considered granted. [Art. 625, CC]
32
How is an easement acquired by title or by something equivalent to a title?
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)
33
What does 'something equivalent to a title' refer to in acquiring an easement?
Refers to law, donations contracts or wills.
34
How may continuous and apparent easements be acquired?
Continuous and apparent easements may be acquired by virtue of a title. [Art. 620, CC]
35
What easements are acquired only by virtue of a title?
a. Continuous non-apparent easements, and
b. discontinuous ones, whether apparent or not,
are acquired only by virtue of a title. [Art. 622, CC]
36
What are the form of 'recognition by the owner of the serviant estate'?
(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.
37
How may the 'absence of a document or proof showing the origin of an easement which cannot be acquired by prescription' be cured?
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]
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"?
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)].
39
How is an easement created by will of the owner?
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)]
40
Can the owner of property in usufruct impose an easement on the property without the consent of the usufructuary?
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]
41
What is required to impose an easement over co-owned property?
When the property is co-owned, consent of all co-owners is required to impose an easement. [Art. 691, CC]
42
What is required to impose an easement, when naked ownership belongs to one person and the beneficial ownership to another?
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]
43
Easements imposed by law have for their object either ____________ or the interest of ____________. [Art. 634, CC]
public use;
private persons
-----------------
Easements imposed by law have for their object either public use or the interest of private persons. [Art. 634, CC]
44
When may legal easements be modified by agreemnt of the interested parties?
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]
45
How may continuous and apparent easements be acquired by prescription?
Continuous and apparent easements may be acquired by prescription of 10 years. [Art. 620, CC]
46
What are the requisites for creating an easement by prescription?
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.
47
What is an example of a continuous and apparent easement?
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.
48
Can mere passage permitted under an implied license be the basis of prescription?
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)]
49
What are the rights of the Dominant Estate Owner in an Easement?
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]
50
What is an example of the dominant estate's right to use the principal estate, and all accessory servitudes?
Example: Easement of drawing water carries with it the easement of right of way to the place where water is drawn.
51
What is the limitation on the right of the dominant estate to 'use the principal easement, and all accessory servitudes'?
Limitation: Only for the original immovable and the original purpose.
52
What determines the width of passage in a right of way?
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)]
53
What are the obligations of the dominant estate?
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.
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)]
burdensome
55
What are the rights of the Servient Estate Owner?
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]
56
When may the servient estate owner change the easement?
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,
57
What are the requirements for the an easement to be changed by the servient estate owner?
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.
58
What are the obligations or the Servient Estate?
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
59
What are the ways by which an easement may be extinguished (Art 631, CC)?
[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
60
What is required for an easement to be extinguished through merger?
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.
61
What is required for an easement to be extinguished through non-use?
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]
62
How is the ten years counted for the extinguishment of an easement by non-use?
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.
63
What is required for impossibility of use to extinguish an easement?
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.
64
What is required for 'renunciation of the owner of the dominant estate' to extinguish the easement?
By the renunciation of the owner of the dominant estate – must be specific, clear, express (distinguished from non-user);
65
What are the other causes or the extinguishment of an easement not mentioned in Art. 631?
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]
66
When does the right of way ceases to be necessary (a cause for the extinguishment of easement)?
[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.
67
When may the owner of the servient estate burdened by the right of way demand the easement to be extinguished?
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]
68
Easements imposed by law have for their object either __________ of the interest of _________. [Art. 634, CC]
public use;
| private persons
69
What are the laws governing legal easements for public use?
* 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.
70
What governs private legal easements?
* 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.
71
What are the kinds of private legal easements provided by the New Civil Code?
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]
72
What are the easement established for the use of waters or relating to waters?
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]
73
What is the easement of Natural Drainage?
[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).
74
What is the easement of Riparian Banks?
[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.
75
What is a towpath?
a path beside a river or canal, originally used as a pathway for horses towing barges
76
Estates adjoining the banks of navigable or floatable rivers are subject to what easement?
Towpath
77
What is the easement of Abutment of a Dam?
[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.
78
What is the easement of Drawing Water and Watering Animals?
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.
79
What is the accessory obligation of the easementof drawing water and watering animals?
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.
80
What is the limitation on the easement of drawing water and watering animals?
Limitation as to measurements of easement: Width must not exceed 10 meters [Art. 657, CC].
81
What is the easement of Aqueduct?
[Art. 642, CC]: Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates.
– with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend.
82
What are the requisites to establish easement of Aqueduct?
[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.
83
What are which the easement of aqueduct cannot be imposed on?
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.
84
What is the right of the servient estate owner in the easement of aqueduct?
[Art. 645, CC]: This easement does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible.
85
What is the treatment of an aqueduct under the law?
[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.
86
What is the easement of Stop Lock or Sluice Gate?
[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.
87
Who may demand a Right of Way?
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.
88
Can a lessee demand the easement of right or way?
NO.
a lessee cannot demand such easement, because the lessor is the one bound to maintain him in the enjoyment of the property.
89
When will the provisions on the legal easement of right of way will not govern?
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.
90
What are the requisites for legal demant to establish the easment of right of way?
[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;
91
Does mere inconvenience in the use of an outlet (re right of way) render the easement a necessity?
NO
92
What is an adequate outlet (re right of way)?
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;
93
Does an outlet have to be by land? (re right of way)
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;
94
What is the amount of indemnity if the right of way is permanent and continuous for the needs of the dominant estate?
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;
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?
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.
96
What criterion must prevail in establishing a right of way?
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)]
97
can other means egress to the public highway extinguish a voluntary easement?
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)]
98
What is the indemnity obligation in a permanent right of way?
Consists of the damages and the value of the land.
99
What is the indemnity obligation in a temporary right of way?
Consists of the damages only.
100
Who is obligated for necessary repairs in a permanent right of way?
Dominant owner to spend.
101
Who is obligated for necessary repairs in a temporary right of way?
Servient owner to spend.
102
Who is obliged to pay taxes on a permanent right of way?
The dominant owner shall reimburse a
proportionate share of
taxes to the proprietor of the servient estate
103
Who is obligated to pay taxes in a temporary right of way?
Servient owner to spend on such.
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?
The buyer or grantee shall grant the right of way without indemnity.
105
Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.
Buyer, grantee or donee as dominant owners
Donation?
The donee shall pay the donor indemnity.
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?
The seller or grantor shall pay indemnity.
107
Rules on Indemnity for Estates Enclosed Through a Sale, Exchange, Partition or Donation.
Seller, grantor or donor as dominant owners
Donation
The donee shall grant
| the right of way without indemnity.
108
Is extinguishment easement (right of way) automatic?
NO
Extinguishment is not automatic. The owner of the servient estate must ask for such extinguishment.
109
What happens to the indemnity when the easement is extinguished?
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.
110
What are Special Rights of Way?
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]
111
Easements of the right of way for the passage of livestock shall be governed by what?
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.
112
What is the limitations as to measurements of animal path?
Max width of 75 meters.
113
What is the limitations as to measurement of animal trail?
Max width of 37 meters and 50 centimeters
114
What is the limitations as to measurement for a watering place for animals?
Max width of 10 meters
115
What is a Party-Wall?
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).
116
How is a party wall a special form of co-ownership?
– 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.
117
What is the difference bet. a co-ownership and a party wall re. identifying shares of co-owners?
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.
118
What is the difference bet. a co-ownership and a party wall re. limitation of use?
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.
119
What is the difference bet. a co-ownership and a party wall re. renunciation of rights?
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.
120
When the existence of easement of party wall is presumed?
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.
121
How is the presumtion of a party wall rebutted?
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.
122
When is it presumed that there is an exterior sign, contray to the easement of party wall?
[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.
123
What is the presumption re ditches or drains opened between two estate?
presumed common to both, if there is no title or sign showing teh contrary
[Art. 661]
124
What are the rights of owners of a party wall?
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.
125
What are the limitations to the right of part-owners to use a party wall?
– 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.
126
What are the limitations to the right of part-owners to increase the height of a party wall?
– He does this at his expense, including the thickening of the wall on his land.
– He shall indemnify the other party for any damages.
127
What are the obligations of the part-owner who desires to demolish his building supported by the party-wall?
– He shall bear all the expenses of repairs and work necessary to prevent any damage which the demolition may cause to the party wall.`
128
What are the obligations of owners of a party wall?
To contribute proportionately to the repair and maintenance of the party wall [Art. 662, CC].
129
What is the exception to the obligation to contribute to repair and maintenance of party wall by the owners?
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
130
When is renunciation of part-ownership of a party wall not allowed?
He cannot renounce his part if his building is being supported by the party wall
131
What are the obligations of an owner who raises the height of the party wall?
[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
132
What is an Easement of Light?
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.
133
What is an Easement of view?
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.
134
How is the Easement of Light and View Acquired?
Through period of prescription of 10 years, counted depending on whether it was positive or negative in nature.
135
When is an easement of light and view positive in nature?
Positive: Opening a window through a party wall
136
When is an easment of light and view negative in nature?
Negative: Opening a window through a wall on the dominant estate
137
When does prescription begin on easement of light and view positive in nature?
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.
138
What does prescription begin on easement of light and view negative in nature?
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.
139
What is the general rule on measurements of easement of light and view?
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.
140
What is the period of acquisitive prescription on the easement of light and view?
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.
141
What is the easement of Drainage of Buildings?
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
142
What is the easement re Intermediate Distances?
[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.
143
What is the rule in planting trees in Intermediate distances?
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.
144
In the absence of regulations what is the rule re planting trees?
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.
145
What is the rule re Branches, Roots and Fruits in Intermediate Distances?
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.
146
What is the Easement of Lateral and Subjacent Support?
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.
147
When is a support lateral?
Support is lateral when a vertical plane divides the supported and supporting lands.
148
When is a support subjacent?
Support is subjacent when the supported land is above the supporting land.
149
What is an Easement against Nuisance?
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].
150
Easement against Nuisance
Factories and Shops
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]
