EASEMENTS OR SERVITUDES

Encumbrance imposed upon an immovable for the benefit of a community

or one or more persons or for the benefit of another immovable belonging
to a different owner.

1. Concept: It 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 must allow something to be done on his
property, for the benefit of another person or tenement.

2.Characteristics:

a. Real right. It is a real right and must be registered in order to

affect third persons.

b. Involves immovable property. It is an encumbrance on another

on incorporeal immovable, not personal property.

c. Different owners. It is an encumbrance on the property belonging

to another.

d. If it is a real easement, it is for the benefit of another immovable.

If it is a personal easement it is for the benefit of persons or a
community.

e. Inseparability – It is inseparable from the estate to which it is

attached; the easement follows the servient estate when the latter
is alienated.

f. Indivisibility. It is indivisible even if the estate is divided.

• If the servient estate is divided between two or more

persons, the easement is not modified.
• If the dominant estate is divided, each one may use the
easement in its entirety. Without changing the place of its
use, or making it burdensome.
g. No possession. There is no transfer of possession; only a burden
is imposed.
 h. Cannot change the estate benefited. The owner of the dominant
estate cannot use the easement except for the benefit of the
immovable originally contemplated.

3. Classifications.

a. Continuous Easements – the use, is or may be, incessant without the

intervention of any act of man;
b. Discontinuous Easements – used an intervals and depend upon the
acts of man. Example; Right of Way

11.02.02. As to whether it is revealed:

a. Apparent Easements. — made known and are continually kept in

view by external signs that reveal the use and enjoyment of the
same.' Examples: Right of way with a concrete road; Easement of
aqueduct.
b. Non-apparent Easements. no external sign of existence. Examples:
Right of way where the pathway is not visible; lateral and subjacent
support; easement of intermediate distances.

11.02.03. As to the type of burden imposed:

a. Positive Easement. — the owner of the servient estate must allow

something to be done in his property or owner of the dominant estate
will do an act himself. These are called servitudes of intrusion and /
or service. (Examples: Light and view where the window is opened in
a party wall or when the owner is entitled to cut roots that intrude
upon his property under Art. 680).

b. Negative Easement. — the owner of the servient estate must refrain

from doing something which he could lawfully do if the easement did
not exist. (Example: Light and View where the window is opened in
one's own wall)

11.02.04. As to how it is established;

a. Legal — established by law;

b. Voluntary — established by will of the parties.
11.03. MODES OF ACQUIRING EASEMENT.

a. Prescription of 10 years. It is required that the easement is both (1)

continuous and (2) apparent;

b. By Title. Easement is acquired through acts inter vivos or mortis causa

like donation, will, contracts;

1. Continuous non-apparent easements, dis-continuous easements,

whether apparent or not can be acquired ONLY BY TITLE.
2. Continuous and apparent easement may be acquired also by title
in addition to Prescription.

c. By deed of recognition and by final judgment, --this merely declares

the existence of a continuous non-apparent easements, discontinuous
easements (which cannot be acquired by prescription) and cures the
absence of proof thereof;

d. Existence of apparent at the time of the sale. --- A easement shall exist
if these requisites concur:

1. There are two estates (or one estate divided into two or more);
2. The two estates originally belong to one person;
3. There is an apparent sign of an easement established by the
original owner;
4. One of the estates was alienated to another person while the
apparent sign still exists; and
5. There is no stipulation against the existence of the easement.

11.03.01. Prescription. The running of the period of prescription commences

as follows:

a. If the easement is negative. from the notarial prohibition to the owner

of the servient estate from executing an act that is contrary to the
existence of servitude. Example: For the easement of light and view
where the window is opened on one's own wall, from the notarial
prohibition to close or obstruct the window.

b. If the easement is positive. — from the day the owner of the dominate
estate or the person who may have made use of the easement,
 commenced to exercise it upon the servient estate. Example: For
easement of light and view where the window is opened in a party wall,
from the time the window was opened.

11.04. RIGHTS OF THE OWNER OF DOMINANT ESTATE.

1. To use the easement or the burden on the servitude;

2. To make on the servient estate any works necessary for the use and
preservation of the servitude without altering or rendering it more
burdensome; and
3. To renounce the easement if the owner of the dominant estate does not
want to contribute to the necessary expenses with the owners of the
other dominant estates.

a. OBLIGATIONS of the Owner of the Dominant Estate:

1. Not to alter or render more burden-some the easement; and

2. To notify the owner of the servient estate of the need to make works
necessary for its preservation and use

11.05. RIGHTS OF THE OWNER OF THE SERVIENT ESTATE.

1. To exercise all the rights of ownership including possession subject to

the burden imposed by the easement;
2. To make use of the easement in such a manner as not to affect the
exercise of the easement; and
3. To change the place or manner of the easement, provided it be equally
convenient.

a. OBLIGATIONS of the Owner of Servient Estate.

1. Not to impair the use of the easement;

2. Contribute to the necessary expenses in case he uses the
easement; and
3. To provide for an equally convenient place and manner of the
easement and incur the expenses for such change.

11.06. EXTINGUISHMENT OF EASEMENTS. Easements are extinguished;

 1. By merger in the same person of the ownership. of the dominant and
servient estates;

2. By non-user for ten years; with respect to discontinuous easements, this

period shall be computed from the day on which they ceased to be used;
and, with respect to continuous easements, from the day on which an
act contrary to the same took place;

3. When either or both of the estates fall into such condition that the
easement cannot be used; but it shall revive if the subsequent condition
of the estates or either of them should again permit its use, unless when
the use becomes possible, sufficient time for prescription has elapsed,
in accordance with the provisions of the preceding number;

4. By the expiration of the term or the fulfillment of the condition, if the

easement is temporary or conditional;

5. By the renunciation of the owner of the dominant estate;

6. By the redemption agreed upon between the owners of the dominant

and servient estates.

12. LEGAL EASEMENTS. Easements imposed by law that have for their
object either public use or the interest of private persons.

a. Legal Easements under the New Civil Code are:

1. Easement relating to waters;
2. Easement of Right of Way;
3. Easement of Party Wall;
4. Easement of Light and View;
5. Easement of Drainage;
6. Easement of Intermediate Distances;
7. Easement Against Nuisance; and
8. Easement of Lateral and Subjacent Support

12.01. EASEMENT RELATING TO WATERS. These include the following

easements that are governed by Arts. 637 to 648 of the New Civil Code as
modified by the Water Code.
 a. Natural Drainage of lands. - lower estates are obliged to receive water
from higher estates;
b. Easement along riparian banks of rivers, streams and shores of seas and
lakes for navigation, floatage, fishing, salvage, and recreation;25°
1. 3 meters for urban areas;
2. 20 meters in agricultural areas;
3. 40 meters in forest areas

c. Abutment of a dam. — authority must first be secured from DPWH;

d. Drawing of Water or Watering of Animals:

1. It must be imposed for reasons of public use;
2. It must be in favor of a town or village;
3. Indemnity must be paid.
4.
E. Easement of Aqueduct. — the requisites are:

1. To prove that he can dispose of the water and that it is sufficient for the
use for which it is intended - this includes a water right, under the
Water Code in proper cases;
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.

F. Abutment or Construction of Stop-lock or sluice gate.

12.02. RIGHT OF WAY. 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.

12.02.01. Requisites:
1. There an estate that is surrounded by other immovable;
2. There must be no adequate outlet to a public highway;
3. There must be payment of indemnity;
4. It is demanded by the Owner or one (4) with real right (like a
usufructuary);
5. The isolation must not be due to the claimant's own. act;
 6. The easement must be established at the point least prejudicial to the
servient estate — not necessarily the shortest distance.

a. Needs of the Dominate Estate. It is the needs of the dominant Property

Whirl, ultimately determine the width of the passage, and these needs may
vary from time to time.

b. Isolation after Sale, Exchange or Partition. The rule allowing a legal

easement of right of way applies to a piece of land that is acquired by sale,
exchange or partition that is surrounded by the estate of the seller, exchanger
or co-owner.

c. Effect of opening of a public road, or joining .the dominant tenement

to another with exit on a public road — right of way is extinguished.

13. PARTY WALL. This wall divides two estates and is governed by CO-
OWNERSHIP.

13.01. PRESUMPTION OF PARTY WALL. 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.

13.02. RIGHTS. The "co-owners" may use the make use of the wall in
proportion to the right he may have in the co-ownership without
interfering with the common and respective uses.
13.02.01. Right to Increase the Height. A part owner has the right to
increase the height of the wall at his own expense and with the obligation
to pay any damages incurred by other part owners.

a. How to Acquire Interest. The other co-owners, may acquire proportionate

interest in the increase (additional part) by paying proportionally the value
of the work at the time of acquisition an of the land used to increase the
thickness.

14. LIGHT AND VIEW

14.01. EASEMENT OF VIEW (JUS PROSPECTUS) it is the right to
opening or constructing windows, apertures, balconies or other similar
projections or openings to afford the dominant estator a view, whether or
oblique towards adjoining lands or tenements. It includes the easement of
light and air.

14.01.01. Limitations: Windows, apertures, balconies or other similar

projections can be made only if the following distances are complied with:

1. Direct View — a distance of 2 METERS between the outer line of the wall
or the projection (Example: Balcony) and the contiguous property
(boundary) should be maintained;

2. Oblique View — a distance of 60 centimeters between the outer line of

the wall or the projection and the contiguous property.

a) What the Limitations are for. The limitations are for the opening
or construction of windows, apertures, balconies and the like. It
is not a limit for the construction of a wall. The owner can
construct a wall in his land up to the boundary or dividing line
but he CANNOT OPEN a windows.

b) Remedy If the distances are not maintained, the owner of the

adjoining lot can ask for the closure of the window, aperture or
balconies. The non observance of the prescribed distances DOES
NOT give rise to prescription.

14.02. EASEMENT OF LIGHT AND AIR (JUS LLIMINUM). It is the

right to have light and air admitted to one's estate.

14.02.01 Restricted Windows. If the distances are not observed, one can
only open restricted windows for the admission of light and air (not for
view) with the following specifications: (1) It must be not more than 30
centimeters square, (2) It must be made at the height of ceiling joist or
immediately under the ceiling, and (3) It must have iron grating and
wire screen.

14.03. NO EASEMENT. No easement is acquired just by observing the

distances specified above both for regular windows and restricted
windows (14.01.01 and 14.02.01 above). It can be acquired only by title
 (by agreement) or through prescription. Hence, the owner of the
adjoining tenement can block the light and view by constructing his
own building or wall.

a. Prescription period will commence from the time of notarial

prohibition because the easement of light and view is a negative
easement.

15. DRAINAGE OF BUILDINGS. 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.

15.01. RAIN WATER. If a building is surrounded by other houses and

there is no adequate outlet for rainwater the owner may demand, with
proper indemnity, for legal easement of drainage for rain water at the
point that is most convenient and least damage.

16. INTERMEDIATE DISTANCES. The distances of constructions or

plantings, aqueduct, well, sewer, furnace, factory, depository of corrosive
substances and the like should observed the distances prescribed by special
laws or regulations.

a. With respect to trees, in absence of regulations, the distances are: (1)

Two meters from the dividing line if tall trees, or (2) 50 centimeters
if shrubs or small trees.

17. EASEMENT AGAINST NUISANCE. 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.

18. LATERAL AND SUBJACENT SUPPORT. No proprietor shall make such

excavations upon his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.
 a. Void Stipulation. Any stipulation or testamentary provision
allowing excavations that cause danger to an adjacent land or
building shall be void.

b. Future Buildings Included. 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
in the future.

c. Examples. (1) In one case, there was damage to a neighbor's building

because the contractor made excavation on the adjacent lot without
sufficient lateral and adjacent support. (2) In another case case, the
owner of the adjoining lot was made liable for weakening the
foundation of his neighbor's chapel when he and another person that
he hired purportedly made diggings for a septic tank. However, this
is only partly a breach of the easement of lateral and subjacent
support because the persons who were made liable for damages
actually encroached upon the property of the neighbor because, they
dug a tunnel that extended under the chapel.

PROBLEMS:

1. A opens a window in the wall of his house, which overlooks the

property of B and is one-meter from such property's boundary line.
After 12 years, B files an action to compel A to close the said window.
In defense, A contends that he has acquired an easement of light and
view over B's property through prescription. Is A correct? Explain. (1972
Bar Exams)

A: No. Article 670 of the New Civil Code expressly provides that
non-observance of the distances provided therein does not give
rise to prescription. The distance for direct view is 2 meters, is,
hence, A's window does not comply with the requirement. In
addition, the easement of light and view is a negative easement.
Hence, the prescriptive period will commence to run only from
the time a notarial prohibition is made. The problem does not
state that there was a notarial prohibition, hence, the prescriptive
period did not commence.

2. 2. FS was the owner of a big lot in Dagupan Street, Tondo, Manila. On

the southern portion of the lot was a house with doors and windows
 overlooking the northern portion of the lot on which a small house was
standing. FS subdivided the lot into two, and sold the southern portion
to JB and the northern portion to TY. TY demolished the small house
and obtained a permit to construct a four storey building on his portion
which would thus obstruct the view from the doors and windows of
JB's house. JB therefore filed an action to enjoin TY from constructing
his building unless it is at a distance of not less than three meters from
the boundary lines of the two portions. Will the action prosper? Why?
(1979 Bar Exams)

A: No. Article 624 of the New Civil provides that 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. All
the requirements under Art. 624 are complied with because there
is an apparent sign of existence of an easements of light and view
when the two estates were separately transferred by Mr. FS to TY
and JB. (Gargantos v. Tan Yanon, 108 Phil. 888)

3. "A" built a house in his residential lot up to the boundary line. In the
presence of "B," the adjoining owner, "A" opened windows, with a direct
of view Over the lot of "B" Twelve years later, "B built a house on his
own lot also right up to the boundary line. "A" brought an action against
"B" to enjoin the latter from building a house up to the boundary line,
alleging that "B" cannot build less that three meters from the boundary
line. Has "A" acquired an A: easement of light and view by prescription?
(1982 Bar Exams)

A: No. The easement of light and view is a negative easement. Hence,

a notarial prohibition in necessary for the prescriptive for period to
commence. In this case, there was no notarial prohibition to B.

19. VOLUNTARY EASEMENTS. 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.
a. If the property is CO-owned, all must consent because it is an act
of ownership.
b. If there is an owner of the naked title and beneficial owner, both
must consent if the easement is perpetual.
c. Voluntary easement can be established by the owner even if the
property is under usufruct so long as the right of the usufructuary
is not prejudiced.