EASEMENT AND SERVITUDES

Atty. Claro F. Certeza

Easement & Servitude

Definition (Art. 613)
Encumbrance
Imposed upon an Immovable
Encumbrance is for the benefit of another
immovable belonging to a different owner

Nature
It is a limitation of ownership and a restriction
on the enjoyment of ones own property.
(Valverde)

On What Things Established

Immovables
Applied in its common and not legal sense.
Confined to things which are immovable by its
nature such as lands, buildings, roads and
constructions of all kinds adhered to the soil.

Characteristics of Easements

It is a Real Right.
Imposed upon the property of another.
It is a limitation on ownership.
It is inseparable from the tenements to which
it is attached.
It cannot be sold independently of the tenement
to which it is attached.

Parties Involved
Dominant Estate
The immovable in whose favor the easement is
established.

Servient Estate
The immovable subject of the easement.

Easement - Lease
Easement
An encumbrance which consists in a right
to the limited use of a piece of land
without possession thereof.
The rightful use without either the
ownership or possession of the land.

Lease
A lease is the rightful possession and use
of the land without the benefit of
ownership.

Easement: Beneficiaries
A particular tenement or immovable. (Art.
613)
The owner of the dominant estate enjoys the
right to pass thru the property of the servient
estate. (Real Servitude)

A group of persons without a dominant estate.

(Art. 614)
Persons in the community may be given
easement thru the property of another. (Personal
Servitude)

Types of Easements (Art. 615)

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

Discontinuous
Those which are used at intervals and depend upon acts of man.

Apparent
Those which are made known and are continually kept in view
by external signs that reveal the use and enjoyment of the
same.

Non-Apparent
those which shown no external indication of their existence.

Distinctions
Continuous Easement vs. Discontinuous
Refers only to the exercise of the servitude but not to
the essence, because the servitude exists
continuously, whether it is used on or not.
The right of acqueduct is a continous easement. (Art.
646) The easement remains whether water is being
conducted or not. Does not depend upon acts of man.
Easement of right of way thru a foot path is
discontinuous. The exercise of the servitude depends
upon the act of man passing over anothers property.
Depends upon the acts of man.

Distinctions
Apparent versus Non-Apparent Easements
Apparent there is a sign or indication of its
existence.
Right of way is apparent if there is foot path or
road.

Non-Apparent there is no sign or indication

is present.
Right of way is non-apparent if there is no foot
path or road existing.

Positive and Negative Easements

Positive Easement
Imposes upon the owner of the servient estate
something to be done or of doing it himself.
Right of way is a positive easement as it requires the
owner of the servient to allow the owner of the
dominant estate to pass thru his property.

Negative Easement
Prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement
did not exist.
Easement of light and view when the window is on
ones own wall.

Easement of Light and View

As Negative Easement
Cortes vs. Yu Tibo, 2 Phil 24: If a person opens a
window on the wall of his house, can he prohibit
his adjacent neighbor from increasing the height
of his house because this will impede the light and
view to his window?
Held: No, this is a negative easement which can
only be valid if there is an agreement executed
between the owner of the servient estate and the
dominant estate.

Inseparability of Easements
Art. 617. Easements are inseparable from the
estate to which they actively or passively belong.
General Rule: the registration of the servient
estate without the registration of the voluntary
easement extinguishes the easement.
Exceptions: (a) the grantee or transferee of the
servient estate actually knew of the existence of
the unrecorded easement; or (b) there is an
understanding or stipulation that the easement
would continue to exist.

Indivisibility of Easements
Art. 618
Relates only to the portion tenement affected by
the servitude.
If servient estate is subdivided, the easement
continues upon the portion burdened.
If the dominant estate is divided into parts, there
as many new dominant tenements as are parts.

How Established
By Law
Legal Easement

By Will of the Parties

Voluntary Easements

Courts cannot create a legal easement. They

can only declare the existence of one but
cannot constitute it if none ever existed.

Modes of Acquiring Easements

Continuous and Apparent Easements
acquired by title.
Title refers to the juridical act which creates the
servitude (law, donation, contracts, wills)

acquired by prescription of 10 years.

There must be adverse possession or exercised of the
easement.

Computation of Period of Prescription

(Art. 621)
Positive easement time of possession is
computed from the day at which the owner of
the dominant estate, or the person who may
have used the easement COMMENCED to
exercise it upon the servient estate.
A and B share a wall (Party Wall). If A makes an
opening on the wall, B can close it at anytime
within 10 years from the time the opening is
made. Thereafter prescription sets in and B
cannot close the window anymore.

Computation of Period of Prescription

(Art. 621)
Negative easement from the time that the owner of
the dominant estate forbade, by notarial instrument,
the owner of the servient estate from executing an act
which would have been lawful without the easement.
A and B owns adjoining lots. If A makes a window
opening on his own building, B cannot be prevented
from constructing on his own lot a tall building which
will obstruct the light and view of As window unless A
executes a notarial prohibition and 10 years have
elapsed from the time the instrument is made and
made known to B.

Easements Acquired ONLY Thru Title

Continuous Non-Apparent
Pipeline underground

Discontinuous, Whether Apparent or NonApparent

Right of Way is discontinuous as the same
requires the intervention of man.

Manner of Use
The owner of the dominant estate
cannot use easement except for the immovable
originally contemplated.
he cannot exercise the easement in any manner
other than that previously established.
So as not to make the easement more burdensome.

Extinguishment of Easements
Merger of ownership of dominant and servient estate
in one person.
Non-user for ten years
Discontinuous Easement from the day on which they
ceased to be used.
Continuous Easement from the day an act contrary to the
same took place.

Either or both servient and dominant estates become

unusable.
Expiration of Term or Fulfilment of Condition
Renunciation by the owner of the dominant estate.
By redemption as agreed upon between the owners of
the two estates.

Legal Easements
Art. 636 - Covers easement created by law in
the interest of private persons or for private
use.
Subject to modification by agreement
provided not contrary to law and no injury is
caused to third persons.

Legal Easements
Easements Relating to Waters (Art. 637)
Easement of Right of Way (Art. 649)

Easement Relating to Waters

Concept: The owners of the servient estate is
obliged to receive waters which naturally
descend from the higher estates inclusive of
stones or earth carried by it.

Easement Relating to Waters

Owner of dominant estate cannot construct
works which will increase the burden upon
the dominant estate.
cannot make his land impervious so as to increase
the flow of water.
cannot drain other lands upon the servient
estate.

Easement Relating to Waters

Owner of Servient Estate
Cannot construct works which will impede the
servitude.
Building of dams or walls to block the flow of water
They cannot do anything to suppress the flow of water

Easement of Right of Way

Concept
Where a private property has no access to a
public road, it has the right of easement of a right
of way over adjacent servient estates as a matter
of law.

Easement of Right of Way

Requisites
1. The dominant estate is surrounded by other
immovable and has no adequate outlet to a public
highway.
2. Payment of proper indemnity.

This is not equivalent to a sale of the land.

3. Isolation not due to acts of owner of the dominant

estate.
4. The right of way is at the point least prejudicial to
the servient estate and in so far as consistent with
this rule, where the distance from the dominant
estate to a public highway is shortest. (Art. 650)

Access to Highway
There is absolutely no access to a public
highway.
Even if there is one, if it is difficult or
dangerous to use or grossly insufficient.

When Several Tenements Are Involved

If there are several tenements surrounding
the dominant estate
the shortest one which will cause the least
damage is to be chosen
If the 2 criterion is not present at the same time,
chose the one which will cause the least damage

Width Easement of Right of Way

Art. 651 that which is sufficient for the
needs of the dominant estate.
A person should not be compelled to merely use
a footpath if he has a vehicle that requires a wider
road.

Right of Way: Sale, Exchange or Partition of

Property (Art. 652 and 653)
Vendor, Exchanger or Co-owner sells land
surrounded by his other estates:
obliged to grant a right of way without indemnity.

Donor gives land which is surrounded by his

other properties.
Donor to grant right of way but with indemnity.

If the grantors property is isolated

Can request right of way but must pay indemnity
In the case of a donor, no indemnity

Isolation Ceases
Art. 655
If the isolation ceases
A new road is opened
Owner of servient estate may demand
extinguishment of easement BUT must return
what has received as payment and interest to be
considered as payment for use of easement
The owner of the servient estate must ask for the
extinguishment

Easement of Party Wall

A party wall is built by common agreement by
getting land from adjoining tenements in
equal parts; in such case, each party may use
the wall, but only the extent of one-half of its
thickness.

Easement of Light and View

Art. 667
no opening in the party wall can be made without
the consent of the others
if done without the proper consent, the others
can close up

If an opening is made and is tolerated, after 10

years, there is an easement by prescription.

Period of Prescription
Through a party wall
compute period from time opening is made

If made through a wall in the dominant estate

compute from the time formal prohibition is
made upon the proprietor of adjoining land

Lateral and Subjacent Support

Prohibits excavations on ones land that would
deprive any adjacent land or building of
sufficient lateral or subjacent support.
but may support artificially

Not subject to waiver

Any proprietor intending to make excavations
must give notice to the owners of adjacent
lands