EASEMENT (OR “SERVITUDE”)

DEFINED

It is an encumbrance imposed upon an

immovable for the benefit of a community or one
or more persons (personal easements) or for the
benefit of another immovable belonging to a
different owner (real or predial easements).
 LEASE EASEMENT
a. A real right only when a. Always a real right
it is registered or when (whether the easement
the lease (of real be a real or personal
property) exceeds one easement).
year.
b. There is a rightful and b. There is rightful limited
limited use AND use WITHOUT ownership
possession WITHOUT or possession.
ownership.
c. May involve real or c. Can refer only to
personal property. immovables.
 ARTICLE 613.

An easement or servitude is an encumbrance

imposed upon an immovable for the benefit of another
immovable belonging to a different owner.

The immovable in favor of which the easement is

established is called the dominant estate, that which is
subject thereto, the servient estate.
 Real Easement

• A real or predial easement is said to be

imposed upon one of the two estates,
called the servient estate or praedium
serviens, for the use or advantage of the
other, called the dominant estate or
praedium dominans.
• A real servitude, therefore,
requires the existence of two
distinct immovables belonging to
different owners to each of which it
relates.
 SERVIENT ESTATE DOMINANT ESTATE

The estate subject The immovable in

to the easement. favor of which the
easement is
established
 ARTICLE 614.

Servitudes may also be established

for the benefit of a community, or of one
or more persons to whom the
encumbered estate does not belong.
 Personal Easements

• A personal servitude, on the other hand, is

due, not to a thing, but to a person,
independently of the latter’s ownership of any
immovable or estate.
• In personal servitude or easement, the
person in whose favor the easement is
constituted need not be the owner of any
certain estate and does not require a
dominant estate because the person in
whose favor the easement is constituted
need not be a property owner.
CHARACTERISTICS
OF EASEMENT
 (a.) a real right

• Easement is a real right since the

right is constituted on the thing
itself and not upon its owner or its
occupant.
 (a.) a real right

• The right consists of a limited use and

enjoyment of the thing without possession
and gives rise to an action in rem in favor
of the owner of the tenement of the
easement and against any possessor of
the servient estate.
 (b.) imposable only on ANOTHER’S
property

• Hence, there can be no true easement on

one’s own property; thus, merger in the
same person of the ownership of the
dominant and servient estate
extinguishes the easement.
 (c.) it is a jus in re aliena

• A real right that may be alienated

although the naked ownership is
maintained.
 (d.) it is a limitation or
encumbrance on the servient
estate for another’s benefit

• It is essential that there be a benefit,

otherwise there would be no easement.

• It is not essential that the benefit be

exercised. What is vital is that it can be
exercised.
 (e.) there is INHERENCE

• There is inseparability from the estate to

which it belongs.

• Article 617
 (f.) it is INDIVISIBLE

• Article 618
 (g.) it is INTRANSMISSIBLE

• Unless the tenement affected be also

transmitted or alienated.
 (h.) it is PERPETUAL

• As long as the dominant and/or the

servient estate exists; unless sooner
extinguished by the causes enumerated
in the law.
No easement on personal property.

• Easements can only be imposed on

immovables, not as defined by the Code,
BUT THOSE WHICH REALLY CANNOT BE
MOVED.
According to Party Given the Benefit:

REAL OR PREDIAL PERSONAL

For the benefit of For the benefit of one
another immovable or more persons of a
belonging to a community (not the
different owner. owner of the servient
estate).
According to the Manner They are
Exercised:

CONTINUOUS DISCONTINUOUS
Their use is incessant, They are used at
or may be incessant, intervals and depend
without the upon the acts of man.
intervention of any act
of man.
According to the Whether or Not Their
Existence is Indicated:

APPARENT NON-APPARENT
Those made known They show no external
and continually kept in indication of their
view by external signs existence.
that reveal the use and
enjoyment of the
same.
 According to the Purpose of the
Easement/Nature of the Limitation:

POSITIVE NEGATIVE
Here the owner of the Here the owner of the
servient estate is servient estate is
obliged (a) to allow PROHIBITED to do
something to be done something which he
on his property or could lawfully do were
(b) to do it himself. it not for the
easement.
 According to the RIGHT GIVEN:

1. Right to partially use the servient estate.

2. Right to get specific materials or objects
from the servient estate.
3. Right to participate in ownership.
4. Right to impede or prevent the neighboring
estate from performing a specific act of
ownership.
According to the SOURCE or ORIGIN
and ESTABLISHMENT:

VOLUNTARY MIXED LEGAL

Constituted by Created partly Those
will or by agreement constituted by
agreement of and partly by the law for
the parties or the law. public use or
by a testator. private
interest.
 ARTICLE 617

Easements are inseparable from

the estate to which they actively
or passively belong.
Inseparability of easements

“INSEPARABLE” indicates
that independent of the
immovable to which they are
attached, easements do not
exist.
 CONSEQUENCES OF
INSEPARABILITY
a. Easements cannot be sold or donated or
mortgaged independently of the real
property to which they may be attached.

a. Registration of the dominant estate under

the Torrens system without the registration
of the voluntary easements in its favor,
does not extinguish the easements; but
registration of the servient estate without
the registration of the easements
burdening it extinguishes said voluntary
easements.
 PROVISION OF THE LAND
REGISTRATION LAW
Easements shall continue to
subsist and shall be held to
pass with the title of ownership
until rescinded or extinguished
BY VIRTUE OF THE
REGISTRATION OF THE
SERVIENT ESTATE, or in any
manner.
 ARTICLE 618
Easements are indivisible. If the servient estate
is divided between two or more persons, the
easement is not modified, and each of them
must bear it on the part which corresponds to
him.
If it the dominant estate that is divided between
two or more persons, each of them may use the
easement in its entirety, without changing the
place of its use, or making it more burdensome
in any other way.
INDIVISIBILITY OF
EASEMENTS
Partition or division of an estate does
not divide the easement, which
continues to be complete in that
each of the dominant estates can
exercise the whole easement over
each of the servient estates, but
ONLY on the PART corresponding to
each of them.
 ARTICLE 619

Easements are established

either by law or by the will of the
owners. The former are called
legal and the latter voluntary.
JUDICIAL DECLARATION THAT AN
EASEMENT EXISTS

When the court says that an

easement exists, it is not creating
one; it merely declares the
existence of an easement created
either by law or by the parties or
testator.
- La Vista Ass., Inc. vs. CA
MODES OF ACQUIRING
EASEMENTS
 ARTICLE 620

Continuous and apparent

easements are acquired by
virtue of a title or by
prescription of ten years.
HOW EASEMENTS ARE
ACQUIRED

a. If continuous and apparent

 by TITLE and PRESCRIPTION
b. If discontinuous and apparent
 Only by TITLE
c. If continuous and non-apparent
 Only by TITLE
d. If discontinuous and non-apparent
 Only by TITLE
MEANING OF TITLE

 Title here does not necessarily

mean document.
 It means a juridical act or law
sufficient to create the
encumbrance.
 Ex: law, donation, testamentary
succession, contract
 - Fe P. Velasco v. Hon. Vicente N. Cusi
If a street or highway already exists when a
Torrens Title is issued to the adjacent owner,
and said street or highway is included inside
the boundaries mentioned in the title, the
street or highway may be regarded as an
encumbrance or easement over the lot just as
effectively as when said easement is
recorded in the title. The action to quiet title
must necessarily fall.
 ACQUISITION BY
PRESCRIPTION

Note:
Prescription under Art. 620 requires 10 years
irrespective of the good or bad faith, the
presence or absence of just title on the part
of the possessor.
 ACQUISITION BY
EXPROPRIATION
- Philippines vs. Phil. Long Distance Telephone
Co.
 the government may not compel the PLDT to
enter into a contract with it – for freedom of
stipulation is of the essence of our
contractual system
 BUT, the Republic may in the exercise of its
eminent domain requires the PLDT to permit
interconnection between the government
telephone system and that of PLDT, as the
needs of the government service may
require, subject to the payment of just
compensation to be determined by court.
 ARTICLE 621

Art. 621. In order to acquire by prescription the easements

referred to in the preceding article, the time of possession
shall be computed thus: in positive easements, from the day on
which the owner of the dominant estate, or the person who
may have made use of the easement, commenced to exercise
it upon the servient estate; and in negative easements, from
the day on which the owner of the dominant estate forbade, by
an instrument acknowledged before a notary public, the owner
of the servient estate, from executing an act which would be
lawful without the easement.
This applies only to
easements that may be
acquired by prescription.
 RULES
(a) If the easement is POSITIVE, begin counting
the period from the day the dominant estate
began to exercise it.

(b) If the easement is NEGATIVE, begin counting

from the time NOTARIAL PROHIBITION was
made on the SERVIENT ESTATE (which must of
course be notified of the notarial prohibition).
Who makes the notarial prohibition or who
should commence the exercise of easement?

The dominant estate, through its owner or

usufructuary or possessor or legal
representative; in other words, any one who
desires to establish the easement.

47
Is the easement of light and view positive
or negative? (Bar Exam Q.)
It depends.

1) If made on one’s own wall and the wall does not extend over the
neighbor’s land, the easement is NEGATIVE (because he only
does an act of ownership, and to create an easement, a
prohibition is required).

2) If made on one’s own wall which extends over the neighboring

land or if made on a PARTY WALL, the easement is created
because of an act of SUFFERANCE or ALLOWANCE, thus the
easement is POSITIVE.
(Cortez v. Yu Tibo)

48
May the easement of Right of Way be
acquired by prescription? (Bar Exam Q.)
No, because it is discontinuous or intermittent .
The limitation on the servient owner’s rights of
ownership exists only when the dominant owner
actually crosses or passes over the servient
state. Since the dominant owner cannot be
continually crossing the servient state, but can
do so only at intervals, the easement is
necessarily of a discontinuous nature.
(Ronquillo et al. v. Roco, et al.)

49
May negative easements be acquired by
prescription?
While in general, negative easements cannot be
acquired by prescription since they are non-
apparent, still the very existence of Art. 621,
proves that in certain cases, and for purposes of
prescription, there are negative easements that
may indeed be considered apparent, not
because there are visible signs of their existence
but because of the making of notarial prohibiton.

50
 ARTICLE 622

Art. 622. Continuous non-apparent

easements, and discontinuous ones,
whether apparent or not, may be acquired
only by virtue of a title.
Easements that may be acquired only by title

The following may be acquired only by title ( not

prescription):

(a) continuous non-apparent – because they are not

public.
(b) discontinuous apparent – because the possession is
not uninterrupted.
(c) discontinuous non-apparent – because possession
is neither public nor uninterrupted .
 REQUISITES OF PRESCRIPTION

Art. 1118 says possession (for purposes of prescription)

has to be:

a) in the concept of owner;

b) public;
c)peaceful and uninterrupted.

Note: Acts of possessory character executed by virtue of

a license or mere tolerance (permission) of the owner
shall not be available for purposes of prescription.
 ARTICLE 623

Art. 623. 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.
This article applies only to easements:

(a) continuous non-apparent

(b) discontinuous easements (whether
apparent or not)
 Proof of existence of easements

1) the deed of recognition by the servient owner.

2) final judgment (here, the court does not create the

easement, but merely declares its existence).
 ARTICLE 624
Art. 624. The existence of an apparent sign of easement
between two estates, established or maintained by the
owner of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue
actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided
in the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of the
deed. This provision shall also apply in case of the division of
a thing owned in common by two or more persons.
 Apparent signs of an easement that
apparently exists

• Originally (before alienation) no true easement because

there is only one owner.
• Sign of the easement does not mean a placard or sign
post, but an outward indication that the easement exists.
• It is not essential that there be an apparent sign between
the two estates, it is important that that there is an apparent
sign that an easement exists between the two estates.
 Rules
1. Before alienation – there is no true easement.
2. After alienation –
a) There arises an easement if the sign
continuous to remain unless there is a contrary
agreement.
b) There is no easement if the sign is
removed or if there is an agreement to this effect.
 Applicability of the Article
(a) whether only one or both estates are
alienated.
(b) even if there be only one estate but there are
two portions thereof, as long as later on there is a
division of the ownership of the said portion.
(c) even in the case of division of common
property, though this is not an alienation.
 When Art. 624 does not apply

Art. 624 does not apply in case both estates

or both portions are alienated to the same
owner, for then there would be no true
easement unless there is a further alienation,
this time, to different owners.
 ARTICLE 625

Art. 625. Upon the establishment of

an easement, all the rights necessary
for its use are considered granted.
 Grant of necessary rights for the use
of easement

(a) Unless the necessary rights are also granted, the right to
the easement itself is rendered nugatory.
(b) Necessary rights include repair, maintenance, accessory
easements such as the right of way if the easement is for the
drawing of water.
(c) Termination of the principal easement necessarily ends
all the secondary or accessory easements.
Requisite to affect or prejudice Third Persons

To prejudice third persons, voluntary easements

must be registered. Registration is of course not
generally essential for legal easements since
this exists as a matter of law and necessity.
 ARTICLE 626
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.
 Easements Appurtenant and
Easements in Gross
Art. 626 presupposes the existence of a dominant estate,
otherwise the Article cannot apply. Easements with a
dominant estate are called easement appurtenant, without
the dominant estate, they are purely personal, and may thus
be referred to as easements in gross.

Note: A personal easement or an easement in

gross, precisely because it is an easement, is still
real property, not personal property.