Easement and Servitudes

Concept
A servitude is a real right, constituted on the corporeal immovable property of another, by virtue of which the owner of the latter has to refrain from doing or to allow that someone do something on his property, for the benefit of another thing or person. (Sanchez Roman)

Nature of Easements
Encumbrance It burdens the owner of the estate which owes the servitude

Participants to Easements/ Servitudes

Dominant Estate immovable in favor of which the easement is established. Servient Estate that which is burdened with the easement.

Servitude Distinguished from Lease

Lease the rightful possession and use of the land without ownership. Servitude rightful use of the land without either the ownership or possession of it.

Characteristics of Easements
It is a real right. It can be imposed only on the property of another, never on ones own property. It produces a limitation on ownership, but the ownership of the servient tenement is unimpaired. It is inseparable from the tenements to which it is actively or passively attached. It can exist only between neighboring tenements.

Real Right
A real right is the power belonging to a person over a specific thing, without a passive subject individually determined, against whom such right may be personally exercised.
(Adorable vs. CA, G.R. No. 119466, Nov. 25, 1999)

Different Owners
An easement can exist only when the servient and dominant estate belongs to two different owners.

Limitation on Ownership
It allows the dominant owner to enjoy the use of the part of the servient estate. However the ownership over the servient does not pass to the owner of the dominant estate.

Inseparability
The easement cannot be alienated independently of the tenement to which it is attached. Being accessory things, their very existence depend upon the principal things.

Classification of Easements
In whose favor created
Real Servitude: For the benefit of a particular tenement.
Servitude under Art. 613

Personal Servitude: For the benefit of persons without a dominant estate.

Servitude under Art. 614 Pertains to a person or group of persons. Does not extend to successors in interest.

Classification of Easements
As to the exercise of a servitude (Art. 615)
Continuous: The use is or may be incessant, without the intervention of men. Discontinuous: The use is at intervals and requires the intervention of men.

As to their form (Art. 615)

Apparent: Made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Non-Apparent: Those that do not show any external indication of their existence.

Continuous Easement
The word continuous means no more than this that the structure that produces the change in the tenement shall be of a permanent character and ready for use at the pleasure of the owner of the dominant estate without making an entry on the servient tenement. Under civil law and its jurisprudence, easements are either continuous or discontinuous according to the manner they are exercised, not according to the presence of apparent signs or physical indications of the existence of such easements. Thus, easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way. (Bicol Agro-Industrial Producers Cooperative vs. Obias, G.R. No. 172077, October 9, 2009) Thus, the mere fact that there is a cemented road that is permanent/ apparent character does not make it continuous easement.

Classification of Easements
As to its object
Positive: One which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself. Negative: That which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement does not exist.

Negative Easement
The right to impede the adjacent owner from the exercise of specific acts of ownership. The abstention from doing such specific acts produces some benefit to the dominant estate or estates. Examples: Servitudes not to:
Raise an edifice any higher Not to obstruct the view Not to plant trees at a certain distance

Positive Easement
Right of use over the estate of another.
Right of way, drainage of buildings

Right to draw specific material or product from the servient estate.

Easement for drawing water, gathering of firewood

Right to participate to a certain point in the ownership of the neighboring estate.

Easement of party wall.

Right to secure the prestation of a specific act or work in favor of an estate or in the public interest.

Classification of Easements
As to source or origin (Art. 619)
Voluntary: Established by the owner of a tenement provided he does not contravene the laws, public policy or public order. Legal: Created by law
For public use or for private interest (Art. 634) Legal easements for private interest
Easement relating to waters (Art. 637-648) Easement of right of way (Art. 649-657) Easement of party wall (Art. 658-666) Easement of light and view (Art. 667-673) Drainage of buildings (Art. 674-676) Intermediate distances and works for certain constructions and plantings (Art. 677-681) Easement against nuisance (Art. 682-683) Easement of lateral and subjacent support (Arts. 684-687)

Acquisition of Easement
By Title By Prescription

Rights of Owner of Dominant Estate

The owner of the dominant estate has the right: 1. To use and exercise the easement for the benefit of the immovable for which it was constituted (Art. 626) 2. To do any work necessary for the use and preservation of the easement (Art. 627, par. 1)

Obligations of Owner of Dominant Estate

1. Cannot alter or render the easement more burdensome (Art. 627, par. 1) 2. He shall notify the owner of the servient estate of the necessary works he intends to make on the servient estate (Art. 627, par. 2) 3. The owners of the dominant estate shall be obliged to contribute to the expenses of the works necessary for the use or preservation of the easement.
a) May renounce the easement to exempt himself from the obligation. (Art. 628, par. 1)

Goldcrest Realty Corp. vs. Cypress Garden Condominium Corp., G.R. No. 171072, April 7, 2009
Goldcrest given easement over the roofdeck. Goldcrest built an office on the roofdeck and leased the same to third parties. Held:
the construction and the lease of the office structure were neither necessary for the use or preservation of the roof decks limited area. Second, the weight of the office structure increased the strain on the condominiums foundation and on the roof decks common limited area, making the easement more burdensome and adding unnecessary safety risk to all the condominium unit owners. Lastly, the construction of the said office structure clearly went beyond the intendment of the easement since it illegally altered the approved condominium project plan and violated Section 4[27] of the condominiums Declaration of Restrictions.[28]

Rights of Owner of Servient Estate

1. Retains the ownership of the portion on which the easement is established. (Art. 630) 2. He may use the easement in such manner as not to affect the exercise of the easement. (Art. 630) 3. He may use the easement himself. (Art. 628, par. 2) 4. He may change the place or manner for the use of the easement provided it may be equally convenient and no injury is caused to the owner of the dominant estate. (Art. 629, par.2)

Obligation of Owner of Servient Estate

1. Cannot impair the use of the easement in any manner whatsoever. (Art. 629, par. 1) 2. He must contribute to the expenses for necessary works if he uses the easement. (Art. 628, par. 2)

Extinguishment of Easements

Modes of Extinguishment
1. Merger in the same person of the ownership of the 2.
dominant and servient estates. Non-user for ten (10) years.
3. Either or both of the estates fall into such condition making use of easement impossible.

4. Expiration of the term or fulfillment of

condition.

5. Renunciation of owner of dominant estate. 6. Redemption agreed upon.

Merger
Francisco need not result in the merger of the entire estate. It is sufficient that there is merger of ownership with respect to the portion burdened by the easement.

Non-User
Refers to an easement originally in use and later abandoned. From when 10 year period counted
Discontinuous easement: from the day in which they ceased to be used.
Right of way from the last day when the easement was exercised.

Continuous easement: from the day on which an act contrary to the same took place.

Condition of Either Estate

Re: Right of Way
if servient estate is entirely inundated by water the easement is extinguished. if servient estate is partly inundated only, the easement in NOT extinguished as it can be exercised over other portions of the servient estate.

Easement Relating to Waters

Concept
As between the owners of the higher and lower ground, the upper proprietor has an easement to have surface water flow naturally from his and into the land of the lower proprietor, which is subject to the corresponding servitude, and hence the lower proprietor has no right to obstruct its flow.

Waters Upon Which the Easement Is Established

Refers to waters that naturally and without the intervention of man descend from the higher estate to the lower ones. Waters that unavoidably surged forth on the making of some works on the higher estate are not included in the easement referred to in Article 637.

Obligations of Owners
Owner of servient estate cannot construct works which will impede the easement. Owner of the dominant estate cannot make works which will increase the burden

Easement on Banks of Rivers and Streams

Article 638
On banks of rivers and streams: Easement of public use in the general interest of navigation, floatage, fishing and salvage. On banks of navigable or floatable rivers: Easement of tow-path for the exclusive service of river navigation and floatage.

Definitions: Banks & Margins

Art. 73 Law on Waters by the phrase banks of rivers is understood those lateral strips or zones of its beds which are washed by the stream only during such high floods as do not cause inundations. Margins are to be understood the lateral zones which are contiguous with the banks.

Roxas vs. City of Manila

G.R. No. L-3144November 19, 1907
The City refused to grant a permit to a lot owner to construct a balcony on her property adjoining a canal. The refusal was justified due to the intent to reserve the said strip for the establishment of a public easement. Held: The City cannot refuse to grant a permit. Its actions are tantamount to deprivation of property without due process of law.

Easement of Right of Way

Types of Easements of Right of Way

Continuous for all the needs of the dominant estate (Art. 649, par. 2); 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 (Art. 649, par. 3); For the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therefrom scaffolding or other objects for the work (Art. 656); For the passage of livestock and those for watering places, resting places and animal folds (Art. 657).

Who May Ask For Establishment of Easement

The owner of the dominant estate Any person who by virtue of a real right may cultivate or use the dominant estate.
A usufructuary may ask for the easement However, a lessee may not because:
The lessee has no right except as against the lessor. The indemnity does not pertain to the lessee but to the owner.

When May An Easement of Right of Way Be Demanded

When an estate is without access to a public highway. The fact of isolation determines the basis for asking the easement.

When Easement Cannot be Demanded

When the want of an adequate outlet to a public highway is to acts imputable to the owner himself, the law prevents him from obtaining a legal servitude of right of way.

Conditions Under Which Easement Must be Established

Location of Easement (Art. 650)
established at a point least prejudicial to the servient estate shortest distance from the dominant estate to the public highway (subject to the first requirement)

Width of Easement (Art. 651)

sufficient for the needs of the dominant estate may be changed from time to time

Exception to General Rule: Easement Without Indemnity (Art. 652)

When a person acquires a piece of land by Sale, Exchange or Partition. The land is surrounded by other estates of the Vendor, Exchanger, or Co-Owner. Right of Way Without Indemnity In case of Donation the donor shall be indemnified by the donee for the establishment of the right of way.

Art. 653 Land of Grantor Gets Landlocked

The grantor may demand a right of way after payment of the proper indemnity. The donor however is exempt from payment of indemnity.

Repairs and Taxes

Right of Way is Permanent The owner of the dominant estate pays for the necessary repairs The owner of the dominant estate shares in the payment of taxes.

Extinguishment of Easement of Right of Way

The dominant estate is joined to another abutting a public road OR a new road is opened giving access to the isolated estate. The owner of the servient estate may demand for the extinguishment of easement after returning what he may have received as indemnity without interest. The interest shall be considered payment of rent for use of the easement.

Easement of Party Wall

Party Wall
A wall built on the boundary line of adjoining properties and shared by both owners. Each person owns as much of a party wall as is situated on his or her land. The wall is subject to cross-easementsreciprocal rights of use over the property of anotherin favor of each owner for the support of his or her building or for the maintenance of the wall.

Party Wall (Art. 659)

Unless there is a title, exterior sign, or proof to the contrary, an easement of party wall is presumed:
In dividing walls adjoining buildings up to the point of common elevation; In dividing walls of gardens or yards situated in cities, towns, or in rural communities; In fences, walls and live hedges dividing rural lands

Exterior Sign Negating Easement

(1) Whenever in the dividing wall of buildings there is a window or opening; (2) Whenever 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) Whenever the entire wall is built within the boundaries of one of the estates; (4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; (5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates; (6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other; (7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs. (573)

Ditches or Drains
Art. 661
states the presumption that ditches or drains opened between to estates are common to both.

Easement of Light & View

Easement of Light & View

The easement of light is the right to admit natural light to a dwelling or building, by means of openings with certain conditions, when, in order to obtain such right, it is necessary to impose some burden on anothers property. The easement of view is the right to open windows in ones own wall, or in that of another or in a party wall, by virtue of which the owner of a tenement acquires the right of view over or across anothers property. (4 Manresa, 796 797)

Nature 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. (n) Note: No. 1 is a positive easement while No. 2 is a negative easement.

Easement: Drainage of Buildings

Easement Drainage of Buildings

Art. 264 owner of building obliged to construct his roof so that rain water should fall on his own land, street or public place and NOT on land of his neighbor. Even if rainwater should fall on his own land, he must collect the same so as not to prejudice to adjacent land.

Easement of Drainage
Art. 676 if yard or court of a house is surrounded by other houses, the owner of the house can demand an easement for an outlet of rainwater. The outlet should the easiest point and should cause the least damage to the servient estate AFTER payment of the proper indemnity.

Easement: Intermediate Distances and Works For Certain Constructions and Plantings

Fortified Places
Construction is prohibited unless there is compliance with the conditions required under special laws, ordinances and regulations. (Art. 677)

Aqueduct, Well, Sewer, Etc.

Art. 678 aqueduct, well, sewer, etc. are structures which by their nature or products are dangerous or noxious. Before building them, one must follow the prescribed regulations and make the necessary protective works. These proviso cannot be waived.

 Art. 679
Tall trees at least 2 meters from the dividing line of estates, Small trees/ shrubs 50 cms. from the dividing line of estates. Remedy of dominant owner removal/ uprooting.

Art. 680
if branches/roots extend over adjacent property, can cut-off

Lateral and Subjacent Support

Lateral and Subjacent Support

As an incident to the right of property in lands, the proprietor cannot make excavations upon his land, which will deprive the adjoining land of that lateral support necessary to keep it from falling in. Land covered: Adjoining premises only. Damages Recoverable: Diminution of the value of the land/ lot. The one undertaking the excavation must notify all owners of adjacent lands to enable them to take the necessary precaution to protect their property.

Nuisance

Nuisance
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 thru noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes. Art. 683: Subject to existing regulations, factories may be maintained provided the least possible annoyance is caused to the neighborhood.

Nuisance Under Title VII

Definition (Art. 694) A nuisance is any act, omission, establishment, business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property.

Classification
As to their nature
nuisance per se or at law nuisance per accidens or in fact

As to scope of their injurious effect

public private mixed

Nuisance Per Se
An act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of its location or surroundings. Example: Prostitution House

Nuisance per Accidens

It becomes a nuisance by reason of circumstances or surroundings. Example: Slaughter house is not illegal but when operated within the city, it can become one.

Distinction
The distinction is in the proof of its existence. In nuisance per se, the wrong is established by proof of the mere act and it becomes a nuisance as a matter of law. In nuisance per accidens, it is proven by the act and its consequences.

Public vs. Private Nuisance

Public Nuisance (Art. 695) affects the community or neighborhood. Private Nuisance (Art. 695) violates only private rights and produces damages to but one or a few persons.

REMEDIES AVAILABLE
Public Nuisance 1. Prosecution under the Revised Penal Code; or 2. Civil action to be commenced by the City or Municipal Mayor (Art. 701) or by a private person if he is injured (Art. 703) 3. Abatement without judicial proceedings a) The City Health Officer shall determine if this is the best remedy. (Art. 702) b) Requisites for extrajudicial Abatement (Art. 704) Private Nuisance 1. Civil action (Art. 705) 2. Abatement without judicial proceedings a) Follow procedure for extrajudicial abatement of nuisance under Art. 704

Extrajudicial Abatement of Public Nuisance

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and (4) That the value of the destruction does not exceed three thousand pesos.

Attractive Nuisance
Ilarde vs. Aquino, 163 SCRA 697
leaving children beside an excavation unattended is an attractive nuisance.

Hidalgo vs. Balandan, G.R. No. L-3422, June 13, 1952

a swimming pool is not an attractive nuisance. Nature has created streams, ponds, pools, where danger of drowning is present. Against this danger, children are instructed early on. If this is imitated by a swimming pool without adding any new danger, the pool owner is not liable.