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LEGAL (LE) VS. VOLUNTARY EASEMENTS (VE)

(1) LE are established by law, while VE are established by will of the owners [A
619]
(2) LE have for their purpose either public use or the interest of private persons
[A634], while VE have for their purpose the interest of the parties to the
agreement establishing the easement.

What is the Object of Legal Easement? either:

1) Public Use
2) Private Use or Interest

How easements established for public or communal easements are

governed
1) Special Laws and Regulations related thereto
2) Provisions of Civil Code on Easements

HOW LEGAL EASEMENTS FOR PRIVATE INTERESTS ARE GOVERNED

1) Agreement of the interested parties
2) In default the above, of general or local laws and ordinances for the general
welfare
3) In default of the above, the Civil Code

Legal Easement on Structures

 Easement of party wall (Arts. 658-666, NCC);
 Easement of light and view (Arts. 667-673, NCC);
 Easement of distances (Arts. 677-681, NCC);
 Easement of lateral and subjacent support (Arts. 684-687, NCC).
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PARTY WALL
refers to walls, fences, hedges, ditches and drains shared by adjoining
estates

its purpose is to protect the structural integrity of both buildings

sharing the wall by prohibiting actions against the party wall that
will undermine the other building
Every part-owner thereof may use it in proportion to his interest in the co-
ownership (A666)
A part-owner cannot open through the party wall any window, without the
consent of all the others (A667)
o Party wall to easement of light = No part-owner may, without
consent of the other, open through the party wall any window or
aperture of any kind (Art 667), unless through prescription of 10 years
(Art. 668)

On common ditches (Art. 661, NCC):

1. When these ditches or drains are located between two estates belonging to
different owners, they are presumed to be common unless there is a title
or sign to the contrary
2. If the land is untitled, or when no one can show proof of ownership of the
land where the ditch or drain exists, ownership of the same will be
determined by the presence of exterior signs (i.e. whenever the earth
removed to open the ditch or to clean it is only on one side thereof)

Presumptions of existence (juris tantum):

1. in adjoining walls of buildings, up to common elevation
2. in dividing walls of gardens and yards (urban)
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3. in dividing fences, walls and live hedges of rural tenements

4. in ditches or drains between tenements

 Rebuttal of presumption: The presumption is destroyed by the presence of:

1. Title to the contrary

2. Exterior signs to the contrary:

➢ ownership of the walls, fences, or hedges shall be presumed to belong
exclusively to the owner of the property where there is an exterior sign
(Arts. 660 & 661), i.e.
1) In the dividing wall of buildings, there is a window or opening
2) The dividing wall is, on one side, 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
3) The entire wall is built within the boundaries of one of the estates
4) The dividing wall bears the burden of the building beams, floors, and
roof frame of one of the buildings, but not those of the others
5) 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
6) 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
7) Lands inclosed by fences or live hedges adjoin others which are not
inclosed (Art. 660, NCC)
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3. by contrary proof

NOTE:
- if the signs are contradictory, they cancel each other
- If exterior signs contradict, the courts will decide
- Title v. Exterior Signs = Title will prevail
o Signs only give inference/indicia of ownership
- Enjoyment of right must not be to the detriment of the other party
- If a party wants to demolish his building being supported by the party wall, he
may still renounce his part-ownership
o He shall bear the costs of all repairs and works necessary to prevent any
damage.

 Rights of part owners:

1) to make use of the wall in proportion to their respective interests, resting
buildings on it or inserting beams up to one-half of the wall’s thickness
2) to increase the height of the wall
a) at his expense
b) upon payment of proper indemnity
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c) to acquire half interest in any increase of thickness or height, paying a

proportionate share in the cost of the work and of the land covered by
the increase

 Obligations of each part-owners:

1) to contribute proportionately to the repair and maintenance unless he
renounces his part-ownership
2) if one part-owner raises the height of the wall, he must:
a) bear the cost of maintenance of the additions
b) bear the increased expenses of preservation
c) bear the cost of construction
d) give additional land, if necessary, to thicken the wall

RULES on REPAIRS, CONSTRUCTION & MAINTENANCE OF PARTY WALLS,

FENCES, LIVE HEDGES, DITCHES, DRAINS COMMONLY OWNED:
• Contribution is in proportion to the right of each.

How to be Exempted from Contributing to maintenance and construction costs?

• By renouncing fully his part ownership
Except: when the party wall supports a building belonging to him
∟ Exception to exception: the owner of a building or structure
supported by a party wall who desires to demolish such building or
structure may renounce his part-ownership of the wall, provided he
shoulders the cost of all repairs and work necessary to prevent any
damage which the demolition may cause to the party wall (on this
occasion only) (Art. 663, NCC)

• REQUISITES FOR RENUNCATION OF SHARE IN PARTY WALL, HEDGES:

1. Must be total or complete renunciation of his share.
2. Made voluntarily and with full knowledge of the facts
3. Must be made before the expenses are incurred.
4. Made with the implied condition that the other owner pays for the repairs.
5. Must be for both the wall and the share in the land where the wall is
erected.

OBLIGATIONS OF THE OWNER INCREASING the HEIGHT OF PARTY WALL under

Art. 664:
1. Construction is at his own expense
2. To pay damages caused, if any
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3. Pay for maintenance costs of the addition

4. Pay for the increased cost of preservation
5. Must reconstruct if party wall cannot bear the increased height, at his
expense
6. Must give or use his portion of the land if walls are to be made thicker

Who owns the Addition to the Height of the Party Wall?

• The owner who paid for its construction.
• Non-contributors may acquire part-ownership of the heightened or
reconstructed wall by paying proportionally for the value of the work at the
time of the acquisition + the value of the land used for thickening of the wall
• Non-exercise of this right means that the additional upper wall or the
reconstructed wall shall belong to the builder exclusively

IN SUM:
 a common wall which separates 2 estates built by common agreement at the
dividing line such that it occupies a portion of both estates on equal parts.
➢ Shares of parties cannot be physically segregated but they can be physically
identified
➢ No limitation as to use of the party wall for exclusive benefit of a party
➢ Owner may free himself from contributing to the cost of repairs and
construction of a party wall by renouncing all his rights thereto
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LIGHT AND VIEW

COMMENT: may be applicable in real estate; however, this is difficult to establish;
For dominant estate’s enjoyment, exercise of the right must be aggressive, active
and participatory.

LIGHT & VIEW – allows the making of openings in walls or preventing the
neighbors from building higher than one’s windows. The Civil Code provides for
the required distances for windows, depending on whether they afford a direct
(2 meters) or oblique (60 centimeters) view.

Non-observance of the required distances will not give rise to prescription (Art.
670). Prescription will only start when the owner formally prohibits the adjoining
owner from blocking his property’s light and view.

1. Easement of Light (jus luminum) - right to admit light from the neighboring
estate by virtue of the opening of a window or the making of certain
openings.
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 Requisites:
a. opening must not be greater than 30 centimeters squared made on the
ceiling or on the wall; and
b. there must be an iron grating

Restrictions on openings in one’s own wall when contiguous (less than 2m) to
another’s tenement:
1. it cannot exceed 1 foot sq. (30 cm each side)
2. openings must be at the height of the joists, near the ceiling (Choco vs.
Santamaria, 21 Phil 132)
3. the abutting owner may:
a. close the openings if the wall becomes a party wall
b. block the light by building or erecting his own wall unless a
servitude is acquired by title or prescription
c. ask for the reduction of the opening to the proper size

2. Easement of view (jus prospectus) – the right to make openings or

windows, to enjoy the view through the estate of another and the power
to prevent all constructions or work which would obstruct such view or
make the same difficult. It necessarily includes easement of light.

Restrictions as to views
1. Direct views: the distance of 2 METERS between the wall and the boundary
must be observed
2. Oblique views: (walls perpendicular or at an angle to the boundary line)
must not be less than 60cm from the boundary line to the nearest edge of the
window
NOTE: Any stipulation permitting lesser distances is void.

Modes of acquisition
1. by title
2. by prescription
a. positive – counted from the time of the opening of the window, if it
is through a party wall
b. negative – counted from the formal prohibition on the servient owner.

NOTE: mere non-observance of distances prescribed by Art. 670 without

formal prohibition, does not give rise to prescription
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Rule When by any Title, a Right Has Been Acquired to Have Direct
View:
1. The owner of the servient estate can still build on his estate
2. But he has to respect the following distance
- B cannot construct a building on his own land at less than 3 meters from the
boundary line

Note:
1. Art. 673 speaks of true servitude
2. The title referred to here is acquired by either agreement, will, donation or
prescription
3. Art. 673 applies when the easement has been acquired under Art. 624
4. Thus if an estate has easement or light and view under Art. 624, the
neighbor cannot construct on his land unless he observes the 3m rule

1. The easement of light is the right to admit light from the neighboring
estate by virtue of opening of a window or making of certain openings.

2. The easement of light and view is the right to make windows or

openings to enjoy the view (and admit light) through another’s estate and
the power to prevent all constructions or trucks which obstruct such view
or make the same difficult

General No part-owner may open through the party wall any window or
Rule: aperture of any kind.
Exception: Where there is consent on the part of the other part-owners (Art.
667, NCC)

Period of prescription for the acquisition of an easement of light and

view (Art. 668, NCC):
1. If thru a party wall: from the time of opening of the window
2. If thru a wall on the dominant estate: from the time of notarial prohibition

Rules for REGULAR windows (Art. 670, NCC):

1. Can be opened provided the following distances are observed:
a. In windows affording direct view: 2 meters between the wall having
the windows and the boundary line between the two estates
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b. In windows affording only side or oblique views: 60 cm between the

boundary line and the nearest edge of the window

NOTES:
1. Direct view: the gaining of direct sight from an opening in a wall
parallel to the boundary line without having to extend out or turn
one’s head to see the adjoining tenement

2. Oblique/side view: gaining of sight of the other tenement from an

opening made at an angle with the boundary line, such that to be
able to see the adjoining tenement, there is a necessity for putting
out or turning one’s head either to the left or to the right

2. If the owner of the wall did not follow the distances specified, he is not
allowed by law to acquire the easement by prescription (notarial prohibition
is still required)
∟ When the windows/apertures are opened at a distance of less than 2
meters from the dividing line, they constitute unlawful openings that
can be ordered closed by the court

3. The window may still be closed unless easement of light and view has
already been acquired through notarial prohibition giving rise to
prescription.

NOTES:
1. The distances provided in Art. 670 do not apply to buildings separated by a
public way or alley, which is not less than 3 meters wide (Art. 672, NCC)

2. Where the dominant estate has acquired the right to have direct views,
balconies or belvederes overlooking an adjoining property, the servient
estate cannot build thereon if the direct view is less than a distance of 3
meters from the wall (Art. 673, NCC)
(a) Distance may be increased or decreased by agreement, provided
the minimum distance of 2 meters in case of direct views or 60 cm in
case of side or oblique views are observed
(b) Any agreement to the contrary is void
(c) The non-observance of these distances does not give rise to prescription
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Note:
It is permissible to build even up to the boundary line:
1) provided that NO regular windows are opened
2) restrictive windows are allowed

Illustration
COMMON FACTS:
On his wall, one [1] meter away from the boundary line, A opened a regular
window with direct view.
Q1: May B, the adjoining owner order A to close it anytime?
A1: Yes, provided B makes the demand for the closure within 10 years from the
opening of the window, otherwise his right of closure will be deemed prescribed.

Q2: Can B, even after the lapse of 10 years, still legally obstruct the light and
view of A by constructing a building on his land or raising his wall?
A2: Yes, provided A has not yet acquired the easement of view – there having
been no notarial prohibition.

RESTRICTED Windows
1. This is for LIGHT and NOT view
2. The restrictions have to be followed if the 2 m distance is NOT complied with
3. Subject to Restrictions:

Rules for restricted windows (Art. 669, NCC):

When the distances in Art. 670 are not observed, only restricted windows may
be made by the owner of a wall which is not a party wall, subject to the following
requirements:
1. Maximum size: 30 cm2
2. There must be:
a) Iron grating embedded in the wall
b) A wire screen
3. The opening must be at the height of the ceiling joists or immediately under
the ceiling

Illustration X has made a restricted window on his wall for light.

Q: What can Y, the adjoining owner do?
A: Within 10 years from notarial prohibition, Y can obstruct the light by:
1. building a higher building on his own land, or
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2. by raising a blocking wall

NOTES:
1. The purpose of restricted windows is for admitting light and air, but not for
view.
2. Light may be obstructed, unless easement of light has already been
acquired.
3. There may be several openings, provided the restrictions are complied with
for every opening.
4. There can also be several openings in EVERY floor or story, for each floor
or story has a ceiling. (Choco vs. Santamaria, G.R. No. 6076, December 29,
1911)

Rights/Remedies of the Abutting Owner in case of Restricted Windows:

1. Compel the dominant owner to:

(a) Close the opening
∟ Prescriptive period: 10 years from the opening of the aperture
(b) Comply with the requirements
2. If no notarial prohibition has been made, or if one had been made but the
10-year prescriptive period had not yet lapsed:
(a) Construct a building on his land
(b) Raising a wall thereon contiguous to the wall of the dominant
owner(s) (Art. 669, par. 3, NCC)
* The servient owner cannot obstruct the opening for light if an
easement of light had already been acquired by the dominant owner
through:
(a) Prescription
(b) Stipulation occasioned by the acquisition of part-ownership of
the wall by the servient owner (Art. 669, par. 2, NCC)
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INTERMEDIATE DISTANCES
COMMENT - Concept:
- For public security and safety
- Rules that govern (in order):
o Special laws and Ordinances
o Customs of the place
o Precautions considered necessary
- No waiver or alteration by stipulation is allowed
- Violators may be punished for Quasi-Delict under Art. 2191

no constructions or plantings can be done without observing the

distances provided by law, e.g. if tall trees are planted near the dividing
line of two estates, the distance of at least 2 meters from the boundary
line should be observed; if shrubs, at least 50 centimeters (Art. 679)

National Building Code

The code governs the construction of works and structures. Further, the
owner must take necessary protective works or other precautions to
avoid damage to neighboring estates.

Intermediate Distance and Works for Certain Constructions and

Plantings

1. Rule re: fortresses: No constructions can be built or plantings made near

fortified places and fortresses without compliance with the conditions set
forth in related special laws, ordinances, and regulations (Art. 677, NCC)

2. Rule re: construction of aqueducts, wells, others enumerated in

A678:
a) Distances prescribed by regulations and customs of the place must
be complied with
➢ If there are no applicable customs or regulations: necessary
precautions must be taken by the builder/maker to prevent any
damage to neighboring lands or tenements

b) Illegal structures can be ordered demolished, and the one who caused
their establishment could be made liable for damages
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c) Prohibitions not subject to stipulations (void for being against public

policy)

3. Rule re: distances on the planting of trees:

a) If there are ordinances or customs: follow the distances prescribed
by the ordinances; if there are none, follow generally accepted
customs

b) If there are no ordinances or customs:

i. When tall trees are planted:
 at least 2 meters from the dividing line of the two estates
measured to the center of the tree

ii. When small trees / shrubs are planted:

 at least 50 cm from the dividing line of the two estates
measured to the center of the tree

Remedy for violation: removal of the trees illegally planted

 In case of noncompliance, a neighbor may demand uprooting
of tree. The rule applies to trees growing spontaneously (Art.
679)

4. Rule re: overextending tree branches and intruding roots (Art.

680, NCC):
a) Re: branches: owner of overreached estate has the right to demand that
these branches be cut off
➢ He cannot break or cut off the branches without authority

b) Re: roots: owner of intruded estate can cut off the invading roots himself
➢ Basis: he became owner of the roots by accession

5. Rule re: falling fruits: The owner of the neighboring tenement upon
which the fruits fell owns said fruits. (Art. 681, NCC)
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LATERAL & SUBJACENT SUPPORT

 may be invoked when neighboring tenement engages in excavations which
will undermine lateral and subjacent support
 COMMENT: However, this is rarely invoked.
➢ no person shall make such excavations upon his land as to deprive any
adjacent land or building of sufficient lateral or subjacent support (A684)
➢ This easement is an exception the rule laid down in A437 (see phrase “without
detriment to servitudes” in said Article).

1. Lateral support: support on the vertical side of a land, the removal of

which may cause the land to crumble or slide
Both the land being supported and the supporting land are on the same
plane

2. Subjacent support: horizontal support underneath a land or building, the

removal of which may cause the sinking or crumbling of the land or building
When the supported land is above the supporting land

3. Rules:
a) No proprietor shall make such excavations upon his land as to deprive
any adjacent land or building of sufficient lateral or subjacent support
(A684, NCC)

b) Any stipulation or testamentary provision allowing excavations that

cause danger to an adjacent land or building shall be void (A685)

c) Present and future buildings or constructions are protected by the

easement (A686, NCC)

d) Any proprietor intending to make any excavation contemplated in

Arts. 684-86 shall notify all owners of adjacent lands (A687, NCC)
∟ Merely an additional precaution; not a substitute for one’s duty to
exercise reasonable care to avoid injury to the adjacent lands or
buildings

Concept:
- Public safety = the reason behind the prohibition on stipulations allowing
excavations that cause danger
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- The notice requirement can be dispensed with if the owner of the building has
actual knowledge of the excavation
o The notice requirement here is only to enable the adjoining owners to take
precautions
o But such notice shall not preclude a recovery for damages, in case the excavator
causes damage to the adjoining property/building

Remedies for violation

1. Action for damages
2. Injunction

In this scenario, the tunnel owns the land underneath that of the house.

The easement here is the protection against constructions by the tunnel owner
from weakening the subjacent support of the house