EASEMENT OR SERVITUDE

Easement
It is an encumbrance imposed upon an immovable for the benefit of another immovable
belonging to a different owner or established for the benefit of a community or of one or
more persons to whom the encumbered estate does not belong.

Easement v. servitude
Easement is derived from common law while servitude is derived from Roman law.
Easement is always real while servitude may be real or personal.

Characteristics of easement:
1. Real right but will affect third persons only when duly registered.
2. It is enjoyed over another immovable, never on one’s own property.
3. It involves two neighboring estates.
4. It is inseparable from the estate to which it is attached and therefore cannot be
alienated independently of the estate.
5. It is indivisible for it is not affected by the division of the estate between two or
more persons.
6. It is a right limited by the needs of the dominant owner or estate without
possession.
7. It cannot consist in the doing of an act unless the act is accessory in relation to a
real easement.
8. It is a limitation on the servient owner’s rights of ownership for the benefit of the
dominant owner and is not presumed.

Classification of easements:
1. As to recipient of benefit:
a. Real/predial – imposed upon an immovable for the benefit of another
immovable belonging to a different owner.
b. Personal – established for the benefit of a community or of one or more
persons to whom the encumbered estate does not belong.
(1) Public – if it is vested in the public at large or in some class of
indeterminate individuals.
(2) Private – if it is vested in a determinate individual or certain persons.
2. As to its source:
a. Voluntary – when the easement is established by the will or agreement of the
parties or by a testator.
 b. Legal – when it is imposed by law either for public use or in the interest of
private persons.
c. Mixed – when it is created partly by will or agreement and partly by law.
3. As to its exercise:
a. Continuous – the use of which are or may be incessant without the
intervention of any act of man.
b. Discontinuous – which are used at intervals and depend upon the acts of
man.
4. As to the indication of their existence:
a. Apparent – those which are made known and are continually kept in view by
external signs that reveal the use and enjoyment of the same.
b. Non-apparent – those which show no external indication of their existence.
5. As to duty of servient owner:
a. Positive – one which imposes upon the owner of the servient estate the
obligation of allowing something to be done or of doing it himself.
b. Negative – one which prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did not exist.
6. As to the right given:
a. Right to partially use the servient estate
b. Right to get specific materials or objects from the servient estate
c. Right to participate in ownership
d. Right to impede or prevent the neighboring estate from performing a specific
act of ownership.

Examples of easements
Continuous easements
 Easement of drainage
 Subjacent and lateral support
 Aqueduct
 Light and view
 Dam
Discontinuous easements
 Right of way
Apparent easements
 Right of way
 Window in a party wall
 Aqueduct
Non-apparent easements
  Lateral and subjacent support
 Intermediate distances
 Right of way (if no visible path)
Positive easements
 Light and view in a party wall
 Right of way
Negative easements
 Light and view when the window is on one’s own wall or estate

Easement v. lease
Easement Lease
Generally, a
personal right. It
is a real right only
when it is
Always a real
registered or
right.
when the lease of
real property
exceeds one
year.
There is rightful
There is rightful
and limited use
limited use
and possession
without ownership
without
or possession.
ownership.
Involves only May involve real
immovable or personal
property. property.

Modes of acquisition:
1. By title – refers to the juridical act which gives birth to the easement such as law,
donation, contract, and will of the testator.
a. Continuous non-apparent
b. Discontinuous apparent
c. Discontinuous non-apparent
2. By prescription of 10 years irrespective of the good or bad faith of the
possessor and whether or not he has just title. The only requirement is adverse
possession.
a. Continuous
 b. Apparent
c. Positive – counted from the day their exercise commences
d. Negative – counted from the formal prohibition to the servient owner was
forbidden from executing an act which would be lawful without the easement.
There must be a notarized document executed by anyone who desires to
establish the easement.
3. By deed of recognition – the absence of document or proof showing 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 final judgment.
4. By apparent sign established by the owner of two adjoining estates, unless at
the time the ownership of the two estates is divided:
a. There are contrary stipulations; or
b. The sign is removed before the execution of the deed.

Rights of a dominant owner:

1. To make on the servient estate all the works necessary for the use and
preservation of the servitude, provided that this must be at his own expense:
a. He must notify the servient owner
b. Select convenient time and manner
c. He must not alter the easement nor render it more burdensome
2. To ask for mandatory injunction to prevent impairment of his use of the easement
3. To renounce totally the easement if he desires to exempt himself from
contribution to necessary expenses
4. To exercise all the rights necessary for the use of the easement

Obligations of the dominant owner:

1. He cannot alter the easement or render it more burdensome
2. He cannot use the easement except for the benefit of the immovable originally
contemplated
3. He cannot exercise the easement in any other manner than that previously
established
4. He may make any works or construct anything which is necessary for the use
and preservation of the servitude
5. He shall notify the servient owner of works necessary for the use and
preservation of the servitude
6. He must choose the most convenient time and manner in making the necessary
works as to cause the least inconvenience to the servient owner
7. He must contribute to the necessary expenses if there are several dominant
estates
Obligations of a servient owner:
1. He cannot impair the use of the easement
2. Contribute to the necessary expenses in case he uses the easement, unless
there is an agreement to the contrary
3. In case of impairment, to restore conditions to the status quo at his expense plus
damages
4. To pay for the expenses incurred for the change of location

EXTINGUISHMENT OF EASEMENTS
Modes of extinguishment of easements:
1. Merger in the same person of the ownership of the dominant and servient
estates.
2. Non-user for 10 years
a. Discontinuous – from the day on which they ceased to be used.
b. Continuous – from the day on which an act contrary to the same took place.
3. Impossibility of use of either or both estates.
4. Expiration of the term or the fulfillment of a condition.
5. Renunciation of a dominant estate.
6. Redemption agreed upon between the owners of the estates.

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

Governing rules:
1. For public use
a. Special laws and regulations
b. Provisions of the Civil Code
2. For private use
a. Provisions of the Civil Code without prejudice to the general or local laws and
ordinances
b. May be modified by agreement of interested parties
Classification of legal easements:
1. Easements relating to waters:
a. Easement of drainage of waters
b. Easement of dam
c. Easement for navigation, floatage, fishing and salvage
d. Easement of aqueduct
e. Easement for drawing water
2. Easement of right of way
3. Easement of party wall
4. Easement of light and view
5. Easement of drainage of buildings
6. Easement for intermediate distances, constructions and plantings
7. Easement against nuisance
8. Easement of lateral and subjacent support

Easement of drainage of waters

Servient estates are obliged to receive the waters which naturally and without the
intervention of man flow from the dominant estate as well as the stone or earth which
they carry with them.

Easement for navigation, floatage, fishing or salvage

The banks of rivers and streams, even in case they are of private ownership, are
subject throughout their entire length and within a zone of 3 meters along their margins
to this easement.

Easement of dam
A person may establish the easement of abutment of dam, provided that:
1. The purpose is to divert or take water from a river or brook or to use any other
continuous or discontinuous stream
2. Payment of the proper indemnity is made
3. It is necessary to build a dam
4. The person to construct it is not the owner of the banks or lots which must
support it
5. He must seek the permission of the owner and in case of the latter’s refusal, he
must secure authority from the proper administrative agency
Easement for drawing water and watering animals
1. Maximum width of 10 meters
2. Must be imposed for public use
3. Must be in favor or a town or village
4. Indemnity must be paid
5. Must be sought not by one individual but by the town or village

Easement of aqueduct
Right arising from a forced easement, by virtue of which the owner of an estate who
desires to avail himself of water for the use of said estate may make such waters pass
through the intermediate estate with the obligation of indemnifying the owner of the
same and also the owner of the estate to which the water may filter or flow.
1. He must prove that he can dispose of the water and it is sufficient for the
intended use
2. The course is most convenient and least onerous to the third person
3. Indemnity must be paid

 The easement of aqueduct for private interest cannot be imposed on buildings,

courtyards, annexes, or outhouses, or on orchards or gardens already existing.
 It does not prevent the owner of the servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not to cause the latter any damage or
render unnecessary repairs and cleanings impossible.
 It shall be considered as continuous and apparent.

Easement of right of way

The essence of this easement lies in the

power of the dominant owner to cross or
traverse the servient tenement without
being prevented or disturbed by its owner.
It cannot be acquired by prescription
because it is discontinuous.

Right of way
It may refer to the easement itself or simply to the strip of land where passage can be
done.

Land acquired is surrounded by other estates

 Sale, exchange, partition: vendor, exchanger or co-owner are obliged to grant a
right of way without indemnity.
 Simple donation: donor shall be indemnified by the donee for the establishment of
the right of way.

Modes of acquisition:
a. Voluntary title – it is constituted by covenant and does not require that the
dominant estate be isolated and without an adequate outlet to a public highway.
b. Compulsory title – if an estate is so isolated and without an adequate outlet to a
public highway, the grant thereof is legally demandable.

Requisites of compulsory right of way:

1. The dominant estate is surrounded by other immovables and there must be no
adequate outlet to a public highway
2. Isolation must not be due to the claimant’s own act
3. Payment of proper indemnity
4. Easement must be established at the point least prejudicial to the servient estate
and insofar as consistent with this rule where the distance from the dominant
estate to the public highway may be the shortest

 2017 Bar: One of the requisites for a compulsory grant of the right of way is that the
estate of the claimant must be isolated and without adequate outlet to a public
highway. The true standard for the grant of compulsory right of way is
“adequacy” of outlet going to a public highway and not the convenience of the
dominant estate.

Easement of right of way for the passage of livestock

Governed by the ordinances and regulations relating thereto, and in their absence, by
the usages and customs of the place.
Maximum width:
a. Animal path – 75 meters
b. Animal trail – 37 meters and 50 cm
c. Watering place for animals – 10 meters

Easement of party wall

Refers to all those masses of rights and
obligations emanating from the existence and
common enjoyment of wall, fence, enclosure,
or hedges by the owners of adjacent buildings
and estates separated by such objects.

Party wall
Common wall which separates 2 estates built by a common agreement at the dividing
line such that it occupies a portion of both estates on equal parts.

Rules governing party wall:

1. Provisions of the Civil Code
2. Local ordinances
3. Customs
4. Rules of co-ownership

Existence 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, town, or rural communities;
3. In fences, walls, and live hedges dividing rural lands.

Exterior signs rebutting the existence of a party wall:

1. There is a window or opening in the dividing wall.
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. 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. 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. The dividing wall has stepping stones.
7. Lands enclosed by fences or live hedges adjoin others that are not enclosed.
8. Whenever the earth or dirt removed to open the ditch or to clean it is only on one
side thereof.

Rights of part owners:

1. To make use of the wall in proportion to their respective interests.
2. To increase the height of the wall. He must:
a. Do so at his expense.
b. Pay for any damage which may be caused by the work, even though such
damage may be temporary.
c. To acquire half interest in any increase of thickness or height, paying a
proportionate share in the cost of the work and of the land covered by the
increase.
3. To demolish the building being supported by a party wall provided the cost of all
repairs and work necessary to prevent any damage which the demolition may
cause to the party wall shall be borne by him.

Obligations of each part-owner:

1. To contribute proportionately to the repair and maintenance unless he renounces
his part-ownership.
2. If one part-owner raises the height of the wall, he must:
a. Bear the cost of maintenance of the additions
b. Bear the increased expenses of preservations
c. Bear the cost of construction
d. Give additional land if necessary to thicken the wall

Easement of light

The right to admit light from the neighboring

estate by virtue of the opening of a window or
the making of certain openings.
Easement of view
The right to make openings or windows, to enjoy the view through the estate of another
and the power to which would obstruct such view or make the same difficult. It
necessarily includes easement of light.
No part-owner may make an opening in a party wall without the consent of the other co-
owners.

Prescriptive period for the acquisition of easement of light and view:

1. From the time of the opening of the window if it is through a party wall
(positive).
2. From the time of formal prohibition upon the proprietor of the adjoining land or
tenement, if the window is through a wall on the dominant estate (negative).

Rules for regular windows:

1. For windows having direct views – 2 meters distance between the wall having
the windows and the boundary line.
2. For windows having side or oblique views – 60 cm distance between the
boundary line and the nearest edge of the window.

 Non-observance of these distances does not give rise to prescription.

 If the distances are not observed, the owner of a wall which is not a party wall,
adjoining the tenement or piece of land belonging to another, can make it in
openings to admit light at the height of the ceiling joists or immediately under the
ceiling, and of the size of 30 cm square, and in every case, with an iron grating
imbedded in the wall with a wire screen.

Easement of drainage of buildings

The owner of a building shall be obliged to construct its roof or covering in such manner
that the rainwater shall fall on his own land or on a street or public place and not on the
land of his neighbor.
The right to divert or empty the rain waters from one’s own roof or shed to the
neighbor’s estate either drop by drop or through conduits.

Easement to receive falling rain waters

It deals not with legal easement but with a voluntary easement to receive rainwater
falling from the roof of an adjoining building.

Easement giving outlet to rainwater where house surrounded by other houses

This is similar to easement of right of way.

Intermediate distances and works for certain constructions and plantings

Intrusions:
a. Branches: the owner of the tree may be compelled to cut intruding branches at
the boundary. If the demand is not acted, the owner of invaded tenement must
seek authority from the court before cutting.
b. Roots: the right of the abutting owner does not prescribe unless he was
prohibited to cut, in such case, the 10-year prescriptive period will run.
c. Fruits falling naturally belong to the owner of the land.

Easement against nuisance

The servient owner in an easement against nuisance is the proprietor or possessor of
the building or piece of land, who commits the nuisance thru noise, jarring, offensive
odor, dust, water, glare, etc.
The general public, or anybody injured by the nuisance is the dominant owner in an
easement against nuisance.

Lateral and subjacent support

No proprietor shall make such excavation upon his land as to deprive any adjacent land
or building of sufficient lateral or subjacent support. Any stipulation allowing so shall be
void.

Lateral support
When the supported and supporting lands are divided by a vertical plane; on the same
plane.

Subjacent support
When the supported land is above and the supporting land is beneath.

VOLUNTARY EASEMENTS
Voluntary easements
These are easements constituted by will of the parties or of a testator.

Rules governing voluntary easements:

1. If created by title (contract or will), then by such title.
2. If created by prescription, then by mere form and manner of possession of the
easement.
3. In default of any of the above, by the provisions of the Civil Code.

When there is usufruct

 The owner of a tenement or piece of land may impose thereon, without the
consent of the usufructuary, any servitudes which will not injure the right of
usufruct.
 The beneficial owner may, by himself, create a temporary easement compatible
with the extent of his beneficial dominion.
 If the easement is perpetual, both the naked and beneficial owners must consent.

When there is co-ownership

 In order to impose an easement on an undivided tenement or piece of land, the
consent of all the co-owners shall be required.
 The consent given by some only, must be held in abeyance until the last one of
all the co-owners shall have expressed his conformity.
 But the consent given by one of the co-owners separately from the others shall
bind the grantor and his successors not to prevent the exercise of the right
granted.

Abandonment of property
 If the owner of the servient estate should have bound himself to bear the cost of
use and preservation, he may free himself therefrom by renunciation of his
property.
 The abandonment must appear in a public document for convenience only.