EASEMENTS or SERVITUDE under the Torrens system without the easement being

Article 613. An easement or servitude is an encumbrance annotated on the corresponding certificate of title.
imposed upon an immovable for the benefit of another (Purugganan v. Paredes).
immovable belonging to a different owner. - EXC: But if the existence of an easement was known
The immovable in favor of which the easement is established is to the transferee or grantee of the servient estate
called the dominant estate; that which is subject thereto, the actually has knowledge is equivalent to registration. It
servient estate. is an established principle that actual notice or
knowledge is as binding as registration. (Mendoza v.
MBL: The estate which is being burdened is the servient estate. Rosel)
It serves the dominant estate. - MBL: Therefore, you must still allow the person
burdened with the easement right of way.
DEFINITION
A real right constituted on another’s property, corporeal and INDIVISIBILITY
immovable by virtue of which the owner of the same has to Article 618. Easements are indivisible. If the servient estate is
abstain from or to allow somebody else to do something on his divided between two or more persons, the easement is not
property for the benefit of another thing or person. modified, and each of them must bear it on the part which
corresponds to him.
MBL: That is why it is a burden because the owner of the
property is being told now not to do something or allowed to do If it is the dominant estate that is divided between two or more
something. persons, each of them may use the easement in its entirety,
without changing the place of its use, or making it more
CHARACTERISTICS OF AN EASEMENT burdensome in any other way.
1. Inseparability from the estate
2. Indivisibility
Will the partition of either the dominant or servient
3. Persons only when duly registered
estate modify the easement?
- NO. The partition between two or more persons of
INSEPARABILITY FROM THE ESTATE
either the servient or dominant estate does not affect
Article 617. Easements are inseparable from the estate to
the existence of the servitude which continues in its
which they actively or passively belong.
entirety.
May an easement be alienated independently from the
PERSONS ONLY WHEN DULY REGISTERED
estate, just like usufruct?
- Real right but will affect 3rd persons only when duly
- NO. They are intransmissible in the sense that they
registered.
cannot be alienated or mortgaged independently of the
estate.
IT IS ENJOYED OVER ANOTEHR PERSON’S IMMOVABLE,
NEVER ON ONE’S OWN PROPERTY
May an easement be an object of usufruct?
- Precisely, because it is an easement it is a burden.
- NO. An easement cannot be the object of usufruct
Someone else is enjoying the property. That is why we
because it has no existence independent of the
have 2 parties – dominant and servient. One who
immovable to which it attaches.
enjoys it is the dominant estate.
Will selling the dominant estate extinguish the
IT INVOLVES TWO NEIGHBORING ESTATES (IN THE
easement established in its favor?
CASE OF REAL EASEMENT), THE DOMINANT TO WHICH
- Again the dominant estate is the one enjoying the
A RIGHT BELONGS AND THE SERVIENT UPON WHICH AN
benefit of the burden.
OBLIGATION RESTS
- Ex. Right of way and there is a land owned by A and
land own by B and A is the serviant estate because
IT IS A RIGHT LIMITED BY THE NEEDS OF THE DOMINANT
there is a right of way in A and the one enjoying is B.
OWNER OR ESTATE WITHOUT POSSESSION.
What if the land of B is sold to C – will the easement
- While the dominant estate is enjoying, there is no
continue?
possession that is burdened by the easement.
- LAW SAYS: If the dominant estate is alienated, such
alienation carries with it also the easements
IT CANNOT CONSIST IN THE DOING OF AN ACT UNLESS THE
established in its favor even if they are not annotated
ACT IS ACCESSORY IN RELATION TO A REAL EASEMENT.
as an encumbrance on the certificate of title. Thus, a
vendee of real property which an easement of right of
IT IS A LIMITATION ON THE SERVIENT OWNER’S RIGHT OF
way exists, does not acquire the right to close that
OWNERSHIP FOR THE BENEFIT OF THE DOMINANT OWNER;
servitude or put up obstruction thereon, to prevent
AND THEREFORE, IT IS NOT PRESUMED.
neighboring estates from using it.
- It is a limitation of a right of an owner. If you are a
- IOW – even if the dominant is sold, whoever the owner
servient owner that has a right of way that is actually
is, will enjoy the estate.
a limitation to your ownership of the estate. That part
of the right of way you cannot use the way you want
BUT what if it is the servient estate that is sold and the
to use it. It is a limitation on your right as an owner
easement is not annotated in the Torrens Certificate of
being an owner of a property that is burdened by
Title, is the easement extinguished?
easement.
- YES. GR: An easement is extinguished or cut off,
however, by the registration of the servient estated
Can you impose easements on personal property?
- No. Easements cannot be imposed on personal
property but only on immovable. However, the term
immovables, as used in the law, must be understood
in its common and not in its legal sense (because
remember immovable under the law has many
meaning which may include personal property, thus it
must be understood in reference to a real property).
CLASSIFICATIONS OF EASEMENT
1. as to recipient of benefit (art. 613-614)
2. as to manner of its exercise; as to whether or not its
existence is indicated (art 615)
3. as to duty of servient owner
4. as to source
AS TO RECIPIENT OF BENEFIT
• Real
o When the easement is in favor of another
immovable
• Personal
o When it is in favor of a community or of one
or more persons. Thus, it may be public or
private.
AS TO MANNER OF ITS EXERCISE; AS TO WHETHER OR
NOT ITS EXISTENCE IS INDICATED (ART 615)
Article 615. Easements may be continuous or
discontinuous, apparent or nonapparent.
• 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 and are continually kept in view by external
signs that reveal the use and enjoyment of the same.
• Nonapparent easements are those which show no
external indication of their existence.
CONTINUOUS EASEMENTS
• For an easement to be continuous, it is not necessary
that the use be incessant, it is sufficient that the use
may be so.
• Examples:
o Right to support a beam on another’s wall
o Right to aqueduct – passage of water
DISCONTINUOUS EASEMENTS
• Used at intervals and where there is intervention by
man
• Example:
o Right of way
CONTINUOUS V. DISCONTINUOUS
CONTINUOUS DISCONTINUOUS
Exercise or enjoyment Such exercise or
can be had without the enjoyment requires the
intervention of man intervention of man
- Ask yourself. Does this particular easement requires
the intervention of man? If no – CONTINUOUS.
APPARENT EASEMENT
- To constitute an apparent easement, it is not necessary
that its sign be seen; it is sufficient if it may be seen or
known on inspection.
AS TO DUTY OF SERVIENT OWNER
Article 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
o Example: right of way
• 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.
o You could have done it but because of the
easement you can no longer do it.
o Example: Easement of light and view –
servient owner cannot build within 3 meters
from the boundary line. Why? Because the
dominant estate may not want the servient
estate to have a direct view over his property.
AS TO SOURCE
Article 619. Easements are established either by law or by
the will of the owners. The former are called legal and the
latter voluntary easements.
MODES OF ACQUIRING EASEMENTS
FOR CONTINUOUS AND APPARENT EASEMENTS
Article 620. Continuous and apparent easements are
acquired either by virtue of a title or by prescription of
ten years.
Why can they be acquired through acquisitive
prescription?
- Continuous and apparent easements are the only
easements that can be acquired by prescription
because they are the only ones the possession of which
fulfills two important requisites required by law for
prescription, to wit: that the possession be public
and continuous.
COMPUTATION OF PRESCRIPTIVE PERIOD
Article 621. In order to acquire by prescription the easements
referred to in the preceding article, the time of possession shall
be computed thus:
• 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
• 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.
POSITIVE COMPUTATION
• The period is counted from the day on which the owner
of the dominant estate began to exercise it.
o Example: from the day a window is opened
on a party wall.
▪ You are allowing something to be
done.
▪ You count 10 years from the opening
of that wall, if the time from the
 opening of the wall + 10 years = you
already acquire the easement of the
view.
NEGATIVE EASEMENTS
• From the day on which a notarial prohibition was made
on the servient estate.
o Example: easement of view
Why can a negative easement be acquired by acquisitive
prescription when it is clearly NOT apparent?
- The NOTARIAL prohibition makes it apparent, as it is
made PUBLIC.
o If the prohibition was only ORALLY MADE or
made in a PRIVATE instrument, the easement
cannot be acquired through acquisitive
prescription.
Examples
- X and Ys building are joined by a party wall, if X opens
a window on a party wall in 2009 and Y does not close
the opening, has X acquired the easement by
acquisitive prescription in 2019?
o YES, because positive easement. The
prescriptive period is counted from the
opening of the window. Anytime before 2019,
Y can close the window. If he does not, then
X acquires the easement and the window can
no longer be closed.
o Positive easement because your letting X view
the inside of the building.
o If X opened in 2009, then Y closed it the next
year then he can do so.
- X and Y own neighboring parcels of land. C xonstructs
a building on his land. X made a written prohibition
against Y in 2008 not to construct a building within 3
meters from the boundary line in accordance with the
easement of light and view. The prohibition was made
in a private document. In 2019, Y constructs a building
2 meters from the boundary line. Can X compel Y to
remove the building since he has acquired already the
easement of Light and View?
o No. The prohibition was NOT A NOTARIAL
PROHIBITION. He has not acquired yet the
easement.
FOR CONTINUOUS NON-APPARENT EASEMENTS AND
DISCONTINUOUS ONES (APPARENT OR NON-
APPARENT)
Article 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may be acquired
only by virtue of a title.
- Because again the req is public and continuous
Why can’t continuous non-apparent and discontinuous
easements not be acquired through acquisitive
prescription?
• Because there are 2 reqs for prescription: possession
is public and continuous
• Note: easement of aqueduct is considered a
continuous and apparent easement.
RONQUILLO V. ROCO
An easement of right of way though it may be apparent is,
nevertheless, discontinuous or intermittent and, therefore,
cannot be acquired through prescription, but only by virtue of a
title.
- You need intervention of man to make use of the
easement of right of way.
Rights and Obligations of the Owners of the Dominant
and Servient Estates
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.
Atty. MBL:
If the easement was provided for example, your agreement with
the servient owner is the use of the right of way is only for your
factory, for trucks to be able to pass through. There was an
agreement that only 10 trucks per day will be allowed to pass
through to protect the integrity of the right way. Since that is
the agreement, you should use it only for that. You cannot
use it for passage of 20 trucks per day.
Another example, if the agreement is only for passage of
personal cars to your house, then your house became a factory
so trucks are also passing by the right of way, this cannot be
because it was not the one originally contemplated.
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. (543a)
Atty. MBL:
If the dominant estate wants to put trees or shrubs on the right
of way, he can do so as long as it will not alter or render it more
burdensome on the part of the owner of the servient estate. He
should notify the owner of the servient estate if he would
make any works and he should choose the most convenient time
and manner so as to cause the least inconvenience to the owner
of the servient estate.
RIGHTS AND OBLIGATIONS OF THE DOMINANT OWNER
RIGHTS
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 the contribution to necessary expenses – SHOULD THERE
BE SEVERAL DOMINANT ESTATES (Art 628, par.1)
4. To ask for mandatory injunction to prevent impairment of his
use of the easement
OBLIGATIONS
1. He can only exercise rights necessary for the use of the
easement (Art. 625)
2. He cannot use the easement except for the benefit of the
immovable originally contemplated (Art. 626)
3. He cannot excuse the easement in any other manner than
that previously established
4. He cannot make any works or construct anything which is not
necessary for the use and preservation of the servitude (Art.
626, par.7)
5. He cannot alter the easement or render it more burdensome
6. He shall notify the servient owner of works necessary for the
use and preservation of the servitude
7. He must choose the most convenient time and manner in
making the necessary works as to cause the least inconvenience
to the servient owner
8. He must contribute to the necessary expenses if there are Obligations cannot make works which cannot
several dominant estates in proportion to the benefits derived of the two will increase the burden construct
from the works (Art. 628, par. 1) estates works which
RIGHTS AND OBLIGATIONS OF THE SERVIENT OWNER will impede
RIGHTS this easement
1. To retain ownership of the portion of the estate on which the Duties of because it is a NATURAL The dominant
easement is established (Art. 630) the two flow, they cannot make the owner may
2. To make use of the easement unless there is an agreement estates flow greater than it is demand their
to the contrary (Art. 628, par. 2) naturally). If the waters are removal or
3. To change the place or manner of the use of the easement, the result of artificial destruction
provided it be equally convenient (Art. 629, par. 2) development, or are the and recover
OBLIGATION overflow from irrigation damages.
1. He cannot impair the use of the easement (Art. 629, par. 1) dams or proceed form
2. He must contribute to the necessary expenses in case he uses industrial establishments
the easement, unless there is an agreement to the contrary (Art. recently set up, the owner of
628, par.2) the lower estate shall be
MODES OF EXTINGUISHING EASEMENTS – Art. 631 entitled to compensation for
1. Merger – in the same person of the ownership of the his loss or damage.
dominant and servient estate
2. Non-user for 10 years Examples Walls, ditches
3. Impossibility of use or fences, or a
4. Expiration of the term or fulfillment of resolutory condition dam which
5. Renunciation – it is the owner of the dominant estate that is block the
enjoying the burden upon the servient estate natural flow of
6. Redemption the waters.
7. Other causes
LEGAL EASEMENTS – those easements that are legally EASEMENT ON RIPARIAN BANKS FOR NAVIGATION,
demandable or those that are created by law FLOATAGE, FISHING,SALVAGE AND TOWPATH
Kinds of legal easements Art. 638 The banks of rivers and streams, even in case they are
1. Public legal easements – those for public or communal use of private ownership, are subject throughout their entire length
(benefit the community or the public) and within a zone of three meters along their margins, to the
2. Private legal easements – those for the interest of private easement of public use in the general interest of navigation,
persons or for private use (benefit certain group of people) floatage, fishing and salvage.
a. Waters Estates adjoining the banks of navigable or floatable rivers are,
b. Right of way furthermore, subject to the easement of towpath for the
c. Party wall exclusive service of river navigation and floatage.
d. Light and view If it be necessary for such purpose to occupy lands of private
e. Drainage ownership, the proper indemnity shall first be paid. (553a)
f. Intermediate distances Atty. MBL:
g. Against nuisance 3 Meters- Easement of public use in the general interest of
h. Uniateral and subjacent support navigation, floatage, fishing, and salvage.
If land is public
EASEMENTS RELATING TO WATER
• If the land is of public ownership, there is no indemnity.
NATURAL DRAINAGE
• If the land is of private ownership, the proper
Art. 637. Lower estates are obliged to receive the waters which
indemnity shall first be paid before it may be occupied.
naturally and without the intervention of man descend from the
Riparian owners cannot be required to subject their
higher estates, as well as the stones or earth which they carry
property to the easement for the benefit of the public
with them.
without proper indemnity.
The owner of the lower estate cannot construct works which will
impede this easement; neither can the owner of the higher Atty. MBL:
estate make works which will increase the burden. Public ownership -> no indemnity
Atty. MBL: - Bec. It is owned by the state the general public can use
This involves two estates: your higher estates and your lower it without indemnity
estate.
From the two, which is considered the dominant estate? – higher EASEMENT OF A DAM
estate – because it benefited from the burden that is given to ART. 639 -Whenever for the diversion or taking of water from
the lower estate. a river or brook, or for the use of any other continuous or
The servient estate is the lower estate. It gives the servient discontinuous stream, it should be necessary to build a dam,
estate the duty and the obligation to receive the waters flowing and the person who is to construct it is not the owner of the
naturally from the higher estate. banks, or lands which must support it, he may establish the
This is an example of a continuous easement. It does not easement of abutment of a dam, after payment of the proper
need the intervention of man. The water will naturally flow indemnity.
because of gravity. EASEMENT FOR DRAWING WATER OR FOR WATERING
Higher (dominant) Lower ANIMALS
(servient) ART. 640- 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.
Atty. MBL:
Since an easement is a burden, whether legal or voluntary, there
must be proper indemnity to the servient owner.
ART. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals to the
place where such easements are to be used, and the indemnity
shall include this service
Requisites:
1. It must be imposed for reasons of public use
2. It must be in favor of a town or village, and
3. There must be payment of proper indemnity.
EASEMENTOF AQUEDUCT
Art. 642 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. (557)
Art. 643. (requisites of Easement of aqueduct)
One desiring to make use of the right granted in the preceding
article is obliged:
(1) To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most
convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations. (558)
When an easement of aqueduct for private interest
cannot be imposed
Art. 644. The easement of aqueduct for private interest cannot
be imposed on buildings, courtyards, annexes, or outhouses, or
on orchards or gardens already existing. (559)
Atty. MBL:
It may destroy the integrity of the building because it is usually
placed under land. If there is already a building, courtyards,
annexes, or outhouses and the aqueduct is for private use, it
cannot be allowed.
Can servient owner build over the aqueduct? YES.
Art. 645. The easement of aqueduct 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. (560)
Atty. MBL:
Even If they build something over it, they must make sure that
the aqueduct can still be cleaned and if ti has to undergo
necessary repairs, then it must be accessible.
Classification of an Easement of Aqueduct
Art. 646. For legal purposes, the easement of aqueduct shall
be 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. (561)
Atty. MBL:
Here, we have the law classifying the easement of aqueduct
despite the fact that it may not be continuous because the law
already classifies it as continuous and apparent.
EASEMENT FOR THE CONSTRUCTION OF A STOP LOCK OR
SLUICE GATE
Art. 647. One who for the purpose of irrigating or improving
his estate, has to construct a stop lock or sluice gate in the bed
of the stream from which the water is to be taken, 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. (562)
EASEMENT OF RIGHT OF WAY
Art. 649. The owner, or any person who by virtue of a real right
may cultivate or use any immovable, which is surrounded by
other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a manner that its
use may be continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist
of the value of the land occupied and the amount of the damage
caused to the servient estate.
In case the right of way is limited to the necessary passage for
the cultivation of the estate surrounded by others and for the
gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
Art. 650. The easement of right of way shall be established at
the point least prejudicial to the servient estate, and, insofar as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest. (565)
Atty. MBL:
Definition:
A 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.
In other words, the person who can demand a right of way is
the owner of a land in which land is surrounded by other lands
owned by different persons and he does not have an adequate
outlet to a public highway. He will demand from the neighboring
estates a right of way after payment of proper indemnity.
Nature of the Easement:
Compulsory and legally demandable so long as all the requisites
are present.
Requisites of the Easement:
1. Claimant must be an owner of enclosed
immovable or one with real right.
Can a usufructuary demand for an easement of right of way?
YES. Because he has a real right
How about a lessee?
Yes, if he registered the lease with the Registry of Deeds then
the lease can be considered a real right. Otherwise, he cannot.
2. There must be no adequate outlet to a public
highway.
What if there is another outlet but it is quite dangerous or costly?
Where the use of an existing outlet is dangerous or is very
difficult, or is very costly, or is not always available, or requires
travel at a long distance, the new right of way may be
demanded.
Case: Valdez vs. Tabisula
The owner of the servient estate subject to the easement cannot
obstruct the use of the easement, as when he fences the original
right of way and moves the path to another portion of his land
if the proposed new location is farther and is not as convenient
as the original path. He may be restrained by injunction.
3. The right of way must be absolutely necessary.
The right cannot be claimed merely for the convenience of the
owner of the enclosed estate. “I don’t like to pass that way
because it is a rocky road, I’d like to go through this neighboring
estate”. You cannot do that because it is merely for convenience
and for you to demand a right of way, it must be
absolutely necessary.
Case: Ramos, Sr. vs Gatchalian Realty Inc.
R should have, first and foremost demanded form the SRL
Subdivision the improvement and maintenance of the road right
of way because it was form said subdivision that he acquired his
lot and not from G Realty. To allow him access to Sucat Road
through G Avenue simply because it allows him a much greater
ease in going to and coming from the main thoroughfare is to
completely ignore what jurisprudence has consistently
maintained through the years regarding an easement of right of
way,
that
mere
inconvenience for the dominant estate is not enough to serve as
its basis. To justify the imposition of this servitude, there must
be a real not fictitious or artificial necessity for it.
4. The isolation must not be due to the claimant’s
own act. – meaning he did not box himself in. It is not
the reason why he does not have an outlet to a
highway. In one of the case I assigned, where he put
a wall to the right side where there is an outlet to a
public highway, so he cannot demand anymore a right
of way with the neighboring estate.
If the owner constructs a permanent obstruction to his property
that gives him an access to the highway, he cannot demand a
right of way from neighboring estates.
5. The easement must be established at the point
least prejudicial to the servient estate. – it’s the
point least prejudicial, not necessarily the shortest.
The criterion of least prejudice or injury to the servient estate
shall be observed although the distance may not be the shortest
or is even the longest. This is a question of fact to be determined
by the court in each particular case.
6. Pay proper indemnity
If the passage is a continuous and permanent nature –
indemnity consists of the value of the land occupied plus amount
of damages caused to the servient estate.
If it is temporary in nature – indemnity consists in the
payment of damage caused to the servient estate.
Kind of Easement of Right of Way
Private – when it is established in favor of a private person,
such as the right granted in Art. 649.
Public – when it is available in favor of the community or public
at large.
Can you acquire an easement if right of way by acquisitive
prescription?
No. The easement of right of way, being discontinuous (needs
intervention of man), cannot be acquired by prescription
notwithstanding that the same may be apparent. The use of a
footpath or road may be apparent but it is not a continuous
easement because its use is at intervals and depends upon the
acts of man. It can be exercised only if a man passes or puts his
feet over somebody else’s land.
BUT the right to demand a right of way under the conditions
provided in Art. 649 is IMPRESCRIPTIBLE.
Width of Easement of Right of way
Article 651. The width of the easement of right of way shall be
that which is sufficient for the needs of the dominant estate, and
may accordingly be changed from time to time. (566a)
Atty. MBL
If before you use a motorcycle – only needed a small easement
of right of way. Then subsequently you purchased a car, you
can ask that the width of the right of way be increase. Because
you will not be able to use it. You cannot be forced just to use
a motorcycle.
When land of transferor or transferee enclosed
Article 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant a
right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by
the donee for the establishment of the right of way. (567a)
Article 653. In the case of the preceding article, if it is the land
of the grantor that becomes isolated, he may demand a right of
way after paying an indemnity. However, the donor shall not be
liable for indemnity. (n)
Seller sold to buyer the purple lot.
The buyer’s land does not have access to the highway.
With all the requisites present, he can demand for a right of
way.
Is the buyer obliged to pay indemnity? NO!
Seller is obliged to grant a right of way, WITHOUT INDEMNITY.
Why no indemnity? It presupposed that the consideration of the
sale already includes the indemnity for the right of way.
Seller
sold all
land
except
the
purple
lot.
Seller’s
land is
isolated.
Can the seller demand a right of way from the buyer? YES.
Should the seller pay indemnity? YES.
Buyer is obliged to grant a right of way, WITH PAYMENT OF
INDEMNITY FROM THE SELLER.
It is the seller who was given money.

Donor donates to the done the purple lot. Donee does not have
access to the road.
If it is an enclosed immovable that is not of your own doing, you
can demand a right of way.
Should the done pay the donor indemnity for demanding a right
of way? YES.
The donor is obliged to grant him a right of way, WITH
PAYMENT OF INDEMNITY FROM DONEE.
DONEE PAYS INDEMNITY because he paid nothing for the parcel
of land he received.
Donor donates all except the purple lot.
Donor does not have access to the road.
Can the donor demand a right of way from the donee? YES.
Should the donor pay indemnity? NO.
Donee is obliged to grant a right of way WITHOUT INDEMNITY.
Donor should not pay. It is presumed that the granting of the
right of way was a condition of the donation.
EASEMENTS PART 3
DONEE is obliged to grant a right of way WITHOUT
INDEMNITY.
WHY? He was the one who gave the land to the done. It is but
fair that the done should give a right of way without asking
anything from the donor.
DONOR should not pay. It is presumed that the GRANTING
OF THE RIGHT OF WAY was a condition of the donation.
Otherwise, why would the donor donate all those surrounding
estates if there was no condition to give him a right of way?
RESPONSIBILITY FOR REPAIRS AND TAXES
ART. 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.
EXTINGUISHMENT OF COMPULSORY EASEMENT OF
RIGHT OF WAY
ART. 655- If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. The
interest on the indemnity shall be deemed to be in payment of
rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet the
needs of the dominant estate in order that the easement may
be extinguished.
ROAD/ HIGHWAY
C is the owner of the estate.
Look at the estate of A
- It is enclosed
- No access to the highway from the left and on top
- A demanded a right of way on the estate of B. A will
pay proper indemnity to B.
A buys the land of X
- Then, the right of way given by B is no longer
necessary because A now has access to the highway.
- A joined a property that has access.
WHAT DOES THE LAW SAY?
- B may demand that the right of way be REMOVED.
- It is not automatic. B has TO DEMAND and RETURN
the indemnity received of course retaining interest.
And, that will serve as payment.
EASEMENT OF PARTY WALL
• 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
PRESUMPTION
ART. 659- The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to the
contrary:
(1) In dividing walls of adjoining buildings up to the point of
common elevation;
(2) In dividing walls of gardens or yards situated in cities, towns,
or in rural communities;
(3) In fences, walls and live hedges dividing rural lands.
DITCHES OR DRAINS
ART. 661 - Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign
showing the contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only on
one side thereof, in which case the ownership of the ditch shall
belong exclusively to the owner of the land having this exterior
sign in its favor.
COST OF REPAIRS AND CONSTRUCTION
ART. 662- The cost of repairs and construction of party walls
and the maintenance of fences, live hedges, ditches, and drains
owned in common, shall be borne by all the owners of the lands
or tenements having the party wall in their favor, in proportion
to the right of each.
Nevertheless, any owner may exempt himself from contributing
to this charge by renouncing his part-ownership, except when
the party wall supports a building belonging to him.
Atty. MBL:
If the party wall supports his building, it is unfair for to allow
him to renounce part ownership. Either way, that party wall
supports his building.
Building A and Building B are joined together by a party wall.
When you look at the party wall, 2/3 of it is within the boundary
of building A and 1/3 of it is in the boundary of building B. The
cost for the repairs or the construction of such party wall, 2/3
will be shouldered by the owner of BA and 1/3 will be shouldered
by the owner of BB. This is what we mean by in proportion. If
they share the party wall equally, then they will share the
expenses equally.
DEMOLITION OF A BUILDING
ART. 663 - If the owner of a building, supported by a party wall
desires to demolish the building, he may also renounce his part-
ownership of the wall, but 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, shall be borne by
him.
Atty. MBL: If he wants to destroy his building and a part of the
party will be damaged, he will bear the necessary expenses to
prevent any damage.
INCREASING HEIGHT
ART. 664- Every owner may increase the height of the party
wall, doing so at his own expense and paying for any damage
which may be caused by the work, even though such damage
be temporary.
The expenses of maintaining the wall in the part newly raised or
deepened at its foundation shall also be paid for by him; and, in
addition, the indemnity for the increased expenses which may
be necessary for the preservation of the party wall by reason of
the greater height or depth which has been given it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his own
expense and, if for this purpose it be necessary to make it
thicker, he shall give the space required from his own land.
Atty. MBL:
If the owner of Building A would want to increase the height, he
may do so at his expense. If such increase in height of the wall
would not assure the integrity of the wall without increasing the
foundation, he will also have to spend for that. If it has to be
demolished to make the party wall enough to bear the weight
of the increased height, he will also have to shoulder the
expenses.
ART. 665- The other owners who have not contributed in giving
increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of the
acquisition and of the land used for its increased thickness.
Atty. MBL:
If the owner of Building B also wishes to increase the height, he
may do so but he must also indemnify the other owner in
proportion.
PROPORTIONAL USE
ART. 666- Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership, without
interfering with the common and respective uses by the other
co-owners.
EASEMENT OF LIGHT AND VIEW
• Easement of Light- is the right to admit light from
the neighboring estate by virtue of the opening of a
window or the making of certain openings
• Easement of View- 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 view or make the same
difficult. It necessarily includes the easement of light.
Is it possible to have light without view?
- YES
Can you open a window or opening on a party wall?
ART. 667- No part-owner may, without the consent of the
others, open through the party wall any window or aperture of
any kind.
PRESCRIPTIVE PERIOD- ACQUISITION OF EASEMENT
ART. 668- The period of prescription for the acquisition of an
easement of light and view shall be counted:
(1) From the time of the opening of the window, if it is through
a party wall; or
(2) From the time of the formal prohibition upon the proprietor
of the adjoining land or tenement, if the window is through a
wall on the dominant estate.
Atty. MBL:
1. If you open and opening through the party wall, even
without the consent of the other co-owners, you may
acquire the easement through acquisitive prescription.
If A opens a window on a party wall, can B close it after 10
years?
- NO, A has already acquired the Easement of View 10
years after the opening of the wall.
- B should have closed it within the 10 year period from
the opening of the window.
If A opens a window on his building, can B (owner of the Blue portion- window
neighboring land) compel A to close it since the window has The line is the boundary line. You want to acquire an easement
direct view to his land? ( the buildings are separate) of light and view to be imposed upon your neighbor. Before you
- If there was notarial prohibition by A not to obstruct can do that, you have to follow the distances. Your opening on
his view and 10 years has lapsed from the time of your building or house, if it is a direct view, the distance should
notarial prohibition, then B cannot compel A to close it. be from the outer wall to the dividing line, it should be 2 meters.
A has already acquired the easement through What if it is a terrace?
acquisitive prescription.
- If there was notarial prohibition by A but 10 years has
not yet lapsed from the time of notarial prohibition, B
can compel A to close it.
- If there was no notarial prohibition or even if there was
written or oral prohibition, B can compel A to close it
anytime even after the lapse of 10 years from the time
of prohibition.

For acquisitive prescription to apply, the distances provided

by law must be followed
- If you want to acquire the easement of light and view
through acquisitive prescription, you as the dominant
owner must also follow certain distances provided by
law. Otherwise, you cannot acquire the easement of
light and view.
The two meters will not be counted from the outer wall because
ART. 670 - No windows, apertures, balconies, or other
when you go out of the terrace you can directly see your
similar projections which afford a direct view upon or
neighbor. The 2 meters must start from the outermost portion.
towards an adjoining land or tenement can be made,
Oblique View- you cannot directly see, you have to peep out
without leaving a distance of two meters between the wall
to see. That is why the distance is shorter. Side view.
in which they are made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance
of sixty centimeters.
The nonobservance of these distances does not give rise to
prescription.

Atty. MBL:
In other words, the one who wants to acquire the easement of
light and view must follow these distances to impose upon the
servient estate/ neighboring estate the easement if he wants to
acquire it through acquisitive prescription.
ART. 671- The distance referred to in the preceding article shall
be measured in cases of direct views from the outer line of the
wall when the openings do not project, from the outer line of
the latter when they do, and in cases of oblique view from the
dividing line between the two properties.
Atty. MBL:
Direct view- when you open the window you directly see the
neighboring estate

If you do not follow the distances

• You cannot acquire the easement through acquisitive
prescription.
- If you open from your building, it is counted 10 years
from the giving of the formal notarial prohibition upon
your neighboring estate.

If the Easement of View has been acquired

ART. 673 - Whenever by any title a right has been acquired to
have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot build
thereon at less than a distance of three meters to be measured
in the manner provided in article 671. Any stipulation permitting
distances less than those prescribed in article 670 is void.
Atty. MBL:
You follow the distances. You also give the formal notarial
prohibition to your neighbor. It must be notarized to make it
public. An easement can only be acquired through acquisitive
prescription if it is public and continuous. An easement of light
and view is continuous and to make it public.
How do you make it public?
- You have to make the prohibition public by having it
notarized.
- When a document is notarized, it becomes a public
document.
If you have acquired it
You followed the distances (OV- 60 cm; DV- 2 meters)
You gave a formal notarial prohibition to your neighbor
10 years have already passed
What does that mean for you?
- It means that the owner of the servient estate cannot
build thereon at less than a distance of three meters to
be measured in the manner provided in Art. 671.
- Easement of view does not necessarily mean telling
your neighbor not to build at all. You’re telling the
neighbor move back three meters while you only
observe 2 meters distance from the boundary line.
- Your neighbor may build but he must move back what
he is building 3 meters from the boundary line. So that
between you would be 5 meters and to give you
enough view.
That’s your house with a DV to your neighbor. And, that is the
boundary line. To acquire the easement of view, you must
observe 2 meters distance from the outer wall to the boundary
line. And, that is your neighbor. You served a formal notarial
prohibition to your neighbor at the time your neighbor wasn’t
building yet. Your neighbor did nothing for 10 yrs. he only
started building on his property after 10 yrs. after 10 yrs. you
have already acquired the easement of view. When your
neighbor builds, he has to observe 3 meters.
What if you followed everything, but on the 5th year from the
time you made the formal notarial prohibition, your neighbor
built on the property. He built right on the side of the boundary
line. He did not observe 3 meters and only placed a 1 inch
distance from the boundary line.
Can you ask the neighbor to demolish the building and move
back?
- NO, you can’t, because you have not acquired the
easement of view yet.
- If the prescriptive period has not expired yet, your
neighbor can build without moving back.
If buildings separated by a public way or alley
ART. 672- The provisions of article 670 are not applicable to
buildings separated by a public way or alley, which is not less
than three meters wide, subject to special regulations and local
ordinances.
Atty. MBL: Why? There is already a distance between the two
houses and buildings.
DRAINAGE OF BUILDINGS
ART. 674- The owner of a building shall be 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.
Atty. MBL:
When you make a construction, you have to make sure that
water should fall on your own land. You do not let it fall on
another person’s land even if you are a co-owner of that
neighboring land.
ART. 675- The owner of a tenement or a piece of land, subject
to the easement of receiving water falling from roofs, may build
in such manner as to receive the water upon his own roof or
give it another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any nuisance or
damage whatever to the dominant estate.
INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN
CONSTRUCTIONS AND PLANTINGS
ART. 677- No constructions can be built or plantings made near
fortified places or fortresses without compliance with the
conditions required in special laws, ordinances, and regulations
relating thereto.
ART. 679- 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, and, in the absence
thereof, at a distance of at least two meters from the dividing
line of the estates if tall trees are planted and at a distance of
at least fifty centimeters if shrubs or small trees are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which have
grown spontaneously.
Att. MBL:
• Tall trees- at a distance of 2m
• Shrubs/ small trees- at a distance of at least 50 cm
ART. 680- 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 insofar
as they may spread over his property, and, 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.
Atty. MBL:
• If branches- the neighboring owner can ONLY
DEMAND that it be cut off. He cannot cut it off
himself.
• If roots- he can cut it off himself by virtue of accession
ART. 681- Fruits naturally falling upon adjacent land belong to
the owner of said land.
EASEMENT AGAINST NUISANCE
ART. 682- 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. 683- 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.
LATERAL AND SUBJACENT SUPPORT
ART. 684- No proprietor shall make such excavations upon his
land as to deprive any adjacent land or building of sufficient
lateral or subjacent support.
Atty. MBL:
You cannot make excavations upon your land as to deprive any
adjacent land or building.
ART. 685- Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or building
shall be void.
ART. 686- The legal easement of lateral and subjacent support
is not only for buildings standing at the time the excavations are
made but also for constructions that may be erected.
Atty. MBL: for existing and future buildings
ART. 687- Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all
owners of adjacent lands.

VOLUNTARY EASEMENTS
There are 2 kinds of easements: legal and voluntary
Just like any other contract, an easement may be agreed upon
by the parties- voluntary easements

ART. 688- Every owner of a tenement or piece of land may

establish thereon the easements which he may deem suitable,
and in the manner and form which he may deem best, provided
he does not contravene the laws, public policy or public order.
Atty. MBL:
Just like in your oblicon, you can enter into any agreement with
respect to easements so long as it is not contrary to law, policy,
or public order.
Can the naked owner impose a servitude on his land without the
usufructuary’s consent?
In other words, you have a land and you also have a
usufructuary.

ART. 689- The owner of a tenement or piece of land, the

usufruct of which belongs to another, may impose thereon,
without the consent of the usufructuary, any servitudes which
will not injure the right of usufruct.

ART. 690- Whenever the naked ownership of a tenement or

piece of land belongs to one person and the beneficial ownership
to another, no perpetual voluntary easement may be established
thereon without the consent of both owners.
Atty. MBL:
If it is a perpetual easement, it is not legally demandable
easement but a perpetual easement agreed upon by the parties.
It can only be established with the consent of both the naked
owner and the usufructuary.

Consent of all co-owners is necessary

ART. 691- In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-owners shall
be required.
The consent given by some only, must be held in abeyance until
the last one of all the co-owners shall have expressed his
conformity.
But the consent given by one of the co-owners separately from
the others shall bind the grantor and his successors not to
prevent the exercise of the right granted.
Atty. MBL:
The easement cannot be enjoyed by the dominant estate on the
estate that is being co-owned as long as there is no consent yet
by all the co-owners.
Whatever was the decision by the predecessor-in-interest,
would bind the successors.