VII.

EASEMENT OR SERVITUDES

A. Definition Easement or real servitudes is a real which burden a thing with a presentation consisting of determinate servitudes for the exclusive enjoyment of a person who is not the owner or of a tenement belonging to another, or it is the real right immovable by nature i.e. land and buildings, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something in his property for the benefit of the another thing or person. B. servitudes. Essentials feature of easements / real servitudes / praedial

1. It is a real, i.e., it gives an action in rem or real action against any possessor of servient estate. 2. It is a right enjoyed over another property

3. It is a right constituted over an immovable by nature (Land and buildings), not over movables. 4. It limits the servient owners right of ownership for the benefit of the dominant estate. Right of limited use, but no right to posses servient estate, Being an abnormal limitation of ownership, it cannot be presumed. 5. It creates a relation between tenements

6. It cannot consist in requiring the owner of the servient estate to do an act, (servitus in faciendo consistere nequit) unless the act is accessory to a praedial servitude (obligation propter rem) 7. Generally, it may consist in the owner of the dominant estate demanding that the owner of the servient estate refrain from doing something (servitus in non faciendo), or that the latter permit that something be done over the servient property (servitus in patendo), but not the right to demand that the owner of the servient estate do something (servitus in faciendo) except if such obligation to a praedial sevitude (obligation propter rem). 8. It is inherently or inseparable from estate to which they actively or passively belong (Art. 617) 9. It is intransmissible, i.e., it cannot be alienated separately from the tenement affected, or benefited. 10. It is indivisible. (Art. 618)

11. It has permanence, i.e., once it attaches, whether used or not, it continues and may be used at anytime.

C.

Classification of Servitudes 1. As to recipient of benefits: a. b. 2. Real or Praedial Personal (Art. 614)

As to origin: a.Legal whether for public use or for the interest of private persons (Art. 634) b. Voluntary 3. As to its exercise (Art. 615) a. b. 4. Continuous Discontinuous

As indication of its existence (Art. 615) a. b. Apparent Non-apparent

5.

By the object or obligation imposed (Art. 616) a. b. Positive Negative (prescription start to run from service of notarial

prohibition) D. servit) 2. A servitude cannot consist in doing (servitus in faciendo consistere nequit) 3. There cannot be a servitude over another servitude ( Servitus servitutes esse nbon potest) 4. A servitude must be exercised in a way least burdensome to the owner of the land. 5. A servitude must have a perpetual cause. E. Modes of Acquiring Easements. General rules relating to servitudes 1. No one can have a servitude over his own property (nulli res sua

1. By title-juridical act which give rise to the servitude, i.e. law donations, contracts or wills.

a. If easement has been acquired but no proof of existence of easement available, and easement is one that cannot be acquired by prescription then 1. May be cured by deed of recognition by owner of servient estate, or 2. By final judgment 3. Existence of an apparent sign considered a title (Art. 624) 2. F. By prescription (distinguish bet. positive vs negative)

Rights and Obligations of Owners of Dominant and Servient Estates. 1. Right of owner of dominant estate

a. To use the easement (Art. 626) and exercise all rights necessary for the use of the (Art. 625) b. To do at his expense, all necessary works for the use and preservation of the easement (Art. 627) c. In a right of way, to ask for change in width of easement sufficient for needs of dominant estate (Art. 651) 2. Obligations of the owner of Dominant Estate:

a. To use the easement for benefit of immovable and in the manner originally established (Art. 626) b. To notify owner of servient estate before making repairs and to make repairs in a manner least inconvenient to servient estate. c. To contribute to expenses of works necessary for use and preservation of servitude, if there are several dominant estates, unless be renounces his interest (Art. 628). 3. Rights of owner of servient estate a. b. (Art. 629, par. 2) 4. To retain ownership and use of his property (Art. 630) To change the place and manner of use the easement

Obligations of the servient estate

a. Not to impair the use of the easement (Art. 628, par. 1) b. To change the place and manner of use the easement (Art. 628, par. 2) G. Modes of Extinguishment of Easements:

1. Merger must be absolute, perfect and definite, not merely temporary. 2. By non-user for 10 years. a. Computation of the period (1) discontinuous easements; counted from the day they ceased to be used. (2) continuous easements: counted from the day an act adverse to the exercise took place. b. The use by a co-power of the dominant estate bars prescription with respect to the others (Art. 633) c. non-user. 3. Extinguishment by impossibility of use 4. Expiration of the term or fulfillment of resolutory condition 5. Renunciation of the owner of dominant estate must be specific clear, express (distinguished from non-user) 6. Redemption agreed upon between the owners 7. Other causes not mentioned in Art. 631 a. easement b. Termination of the right of grantor c. Abandonment of the servient estate d. Eminent domain e. Special cause for extinction of legal rights of way; if right of way; if right of way no longer necessary Art. 651 655 H. Legal Easements 1. Law Governing Legal Easement a. Pres. Decree For public easements 1. Special laws and regulations relating thereto, e.g. 1067, P.D. 705 Annulment or rescission of the Title constituting the Servitudes not yet exercised cannot be extinguished by

2. New Civil Code

By the provisions of Chapter 2, Title VII, book II

b. for private legal easements 1) by agreement of the interest parties whenever the law does not prohibit it and no injury is suffered by a third person. 2) by the provisions of Chapter 2, Title VII book II 2. Private Legal Easements provided for by the new Civil Code

a. Those established for the use of water or easements relating to waters (Art. 637-648) 1) Natural drainage of waters (Art. 637) 2) Easements on lands along riverbanks (Art. 638), See Water Code. 3) 4) 5) 6) b. c. d. e. Abutment of a dam (Art. 639) Aqueduct (Art. 645-646) Drawing waters and watering animals (Art. 640) Stop lock or sluice gate (Art. 649)

The easement of party wall (Art. 649-657) The easement of party wall (Art. 658-666) The easement of light and view (Art. 667-673) The easement of drainage of buildings (Art. 674-676)

f. The easement of distance for certain constructions and plantings (Art. 677-681) g. h. The easement against nuisances (Art. 682-683) The easement of lateral and subjacent support (Arts. 684-687)