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I. Easements and Servitudes:

1.and 2 Definition of easement and Definition of servitude

An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to different owner.
Easement or servitude is an 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 different owner.
While in Philippine jurisdiction, the terms easement and servitude are use
interchangeably, strictly speaking, however, easement refers to the right while servitude
refers to the encumbrance.

Servitudes may also be established for the benefit of a

community, or of one or more persons to whom the encumbered
estate does not belong. (Article 614, NCC)

Parties on an Easement:
The immovable in favor of which the easement is established is called the dominant
estate while that which is subject to easement is called the servient estate.

For instance in an easement of right of way where one estate belonging to A is

surrounded by several estates belonging to B, C, D and E and the estate owned by A
has no adequate outlet to a public highway, A is entitled to demand a right of way
through the neighboring estates after payment of proper indemnity and subject to other
requirements as provided by law.
In this case, when an easement is established the estate of A will be the dominant
estate and the estate where a right of way is established, either from the estate of B, C ,
D or E will be the dominant estate.
3. Easement and servitude; distinctions
Easement is the name used in common law countries while servitude is that used in civil
law countries.
Easement under common law is only one form of servitude, the latter (servitude) term
being broader.
An easement under common law is always predial or real or that in favor of another
realty while servitude refers to a predial or real easement upon the one hand or to a
personal easement upon the other hand.
Easement is the right enjoyed while servitude is the burden imposed upon another,
4.  characteristics of an easement
a) A right limited by the Needs of the dominant owner or estate, without possession;

For instance in an easement of light and view, particularly when acquired, the
opening for example of a window is for the benefit of the dominant owner
because such will allow light upon his estate or house as well as air to enter
therein.

b) Inseparable from the estate to which it is attached – cannot be alienated

independently of the estate (NCC, Art. 617)

Consequently, when the servient estate is sold to another person then it follows
that the easement is also attached and imposed upon the new owner unless the
easement was extinguished by any of the Modes of extinguishing easements.

c) Cannot consist in the doing of an act unless the act is accessory in relation to a
real easement;
As this is imposed upon an immovable so that the dominant estate may use the
same consistent with the easement.

d) Involves two (2) neighboring Estates: the dominant estate to which the right
belongs and the servient estate upon which an obligation rests;

e) A Limitation on the servient owner’s rights of ownership;

In easement, ownership does not vest upon the dominant owner but servient
estate continues to be owned by the servient owner. His ownership however over
the whole of his estate is limited when easement is established. For Instance, in
an easement of right of way, the portion where a road is established is used for
the benefit of the dominant immovable unless there is an agreement to the
contrary that both of the servient and dominant estates may use the same.

f) Indivisible – not affected by the division of the estate between two or more
persons (NCC, Art. 618);
 g) It is enjoyed over another immovable never on one’s own property; jus in re
aliena and

As one of its characteristics, easement cannot be enjoyed in ones own property

as this will be contrary to the intention of the law that easement is a burden is
imposed on an immovable for the benefit of another immovable. Hence, when
there is merger of ownership over the dominant and servient estates, easement
is extinguished as it was said that easement cannot be enjoyed on ones own
property.

h. A Real right (jus in re)but will affect third persons only when registered.

Basing on the characteristics and definition of easement, there can be no easement

imposed on personal property but only to immovables which includes lands, buildings
and roads.
5. Kinds of easement
What are the Kinds of Easement?
Easement may be classified as follows:
A. According to party given the benefit.
a. Real or predial or easement for the benefit of another immovable belonging to a
different owner.
For example, easement of water where servient estate is obliged to receive the water as
well as the rocks and soil which naturally descends from the upper dominant estate. In
this case, easement is established for the benefit of the upper estate as this kind of
easement benefits the upper estate so that the latter does not need to catch all waters
that naturally descend from his estate. However, the dominant estate should not do acts
so as to increase the burden.
b. Personal easement is that which is for the benefit of one or more persons or of a
community but not the owner of the servient estate. This may cover easement of right of
way where a path or road which may be for the benefit of one or more persons.
B. As to the manner they are exercised:
a. Continuous easements which use is incessant or may be incessant, without the
intervention of any act of man.
Example is the easement of drainage or the right to support a beam on another’s wall.
b. Discontinuous easement which are used at intervals and depend upon the acts of
man.
Example is easement of right of way because it can be exercised only if a man passes
or puts his feet over somebody else’s land.
Question: Is the easement of light and view a continuous or discontinuous
easement?
While it is true that to construct a window is considered an act of man, still once
constructed, the easement remains. From that it may be considered that an easement
of light and view is a continuous and not a discontinuous easement. For while all
easement require human actions for establishment, no all require human actions for
exercise.
B. As to whether or not their existence is indicated:
a. Apparent easements- Those made known and continually kept in view by external
signs that reveal the use and enjoyment of the same.
Example: Right of way when there is an alley or path, a dam or window in a party wall
which is visible to owners. The mark or sign of an easement need not be seen but
should be susceptible of being seen.
b. Non-apparent easement. It is called as such as they show no external indication of
their existence.
For example, easement of lateral or subjacent support or easement of intermediate
distances. They are called non apparent because there is not indication of their
existence.
C. As to the purpose of the easement or the nature of the limitation:
a. Positive easement: in this kind of easement, the owner of the servient estate is
obliged to:
i. allow something to be done on his property way,
Ex. Easement of light and view on a party wall, easement of right of
ii. do it himself.
Ex. duty to cut of the tree branches extending over neighboring estate.
This is also termed as easement of sufferance or intrusion or service because
something is being done on the servient estate
b. Negative easement. In this kind, the owner of the servient estate is prohibited to do
something which he could lawfully do were it not for the existence of the easement.
Ex, Easement of light and view when the window or opening is one’s own wall or estate.
This requires notarial prohibition.

This kind is also called as servitudes of abstention or limitation or restriction.

D. As to right given:
a. Right to partially use the servient estate
Ex. Right of way
b. Right to get specific materials or objects from the servient estate
Ex. Easement of drawing water
c. Right to participate in ownership
Ex. Easement of party wall as the same is owned in common
d. Right to impede or prevent the neighboring estate from performing a specific act
of ownership
Ex. Easement of intermediate distances as when the servient estate cannot plant
trees without observing certain distances depending on the kind of tree to be
planted.
E. As to the source or origin and establishment of the easement.
a. Voluntary which is constituted by will or agreement of the parties or by a testator
b. Mixed when created partly by agreement and partly by the law
c. Legal is that which is constituted by law for public use or for private interest.
 Ex. Easement of waters
 Right of way
 Party wall
 Hight and view
 Light and view
 Drainage of buildings
 Intermediate distances
 Against nuisances
 Lateral and subjacent support

6. Real easement or servitude and 7. Personal easement or servitude

These are those where easement may classified into.
Real (praedial) easement or servitude is one in favor of another immovable.
Hence, there must be two different immovables each belonging to different owners.
While personal easement is in favor of a community or of one or more persons to whom
the encumbered estate does not belong.
In personal servitude, the person whose in favor the easement is constituted need not
be the owner of any estate because the person in whose favor the easement is
constituted need not be property owner.
Servitudes may also be established for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong.

Ex. Easement of right of way for passage of livestock.

8. distinction between real and personal easement

REAL EASEMENT PERSONAL EASEMENT

The encumbrance is imposed upon encumbrance imposed upon an

an immovable for

immovable for the benefit of another the benefit of a community, or

immovable belonging to a different of one or more persons to whom
owner. the encumbered estate does not
belong.

A real servitude, therefore, requires In personal servitude, there

the existence of two distinct
immovable belonging to different
owners to each of which it relates
is therefore no “owner of a
dominant tenement” to speak
of, and the easement pertains
to persons without a dominant
estate.

the right of servitude resides in the A personal servitude, on the

other hand, is due, not to a
estate (praedium) itself and not in the thing, but to a person,
physical person who successively independently of the latter’s
occupies or enjoys it. ownership of any immovable or
estate.

The right to personal

servitude does not extend to
 the successors-in-interest of
the person to whom the right
is granted.

9. sources of easement
 a. Legal easement and voluntary easement
a. Legal – Those created by law for public use or private interests;

b. Voluntary - constituted by will or agreement of the parties or by testator; and

NOTE: Like any other contract, a voluntary easement (of right-of-way) could be
extinguished only by mutual agreement or by renunciation of the owner of the dominant
estate (La Vista Association v. CA, G.R. No. 95252, September 5, 1997).
c. Mixed – Created partly
c. continuous and discontinuous easement
a. Legal – Those created by law for public use or private interests;
b. Voluntary - constituted by will or agreement of the parties or by testator; and
NOTE: Like any other contract, a voluntary easement (of right-of-way) could be
extinguished only by mutual agreement or by renunciation of the owner of the dominant
estate (La Vista Association v. CA, G.R. No. 95252, September 5, 1997).
c. Mixed – Created partly
d. apparent and non-apparent easements

a. Apparent – Made known and continually kept in view by external signs that reveal the
use and enjoyment of the same (NCC, Art. 615); and
NOTE: By way of exception the easement of aqueduct is always apparent, whether or
not it can be seen (NCC, Art. 646).
b. Non-apparent – They show no external indication of their existence (NCC, Art. 615).

e. positive and negative easements

a. Positive – Imposes upon the owner of the servient estate the obligation of allowing
something to be done or doing it himself; and
e.g. Right of way – imposes the duty to allow the use of said way.
b. Negative – Prohibits the owner of the servient estate from doing something which he
could lawfully do if the easement did not exist.
e.g. Easement of light and view – where the owner is prohibited from obstructing the
passage of light.
10. Modes of acquiring easements
There are two modes of acquiring easements. This is by title or by prescription.

a. Title does not necessarily mean a document. It means a juridical act or law
sufficient to create the encumbrance. Title may include by law, donation,
testamentary succession or contract
Intestate succession does not create an easement for no act is involved. Hence,
instead of creating easement, it may transmit easement already existing.
Under article 624, it enunciates the Doctrine of Apparent Sign
Easements are inseparable from the estate to which they actively or passively pertain.
The existence of apparent sign under Art. 624 is equivalent to a title. It is as if there is
an implied contract between the two new owners that the easement should be
constituted, since no one objected to the continued existence of the windows.

NOTE: It is understood that there is an exterior sign contrary to the easement of party
wall whenever:
1. There is a window or opening in the dividing wall of buildings;
2. Entire wall is built within the boundaries of one of the estates;
3. 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; or
4. The lands enclosed by fences or live hedges adjoin others which are not enclosed.

In all these cases, ownership is deemed to belong exclusively to the owner of the
property which has in its favor the presumption based on any of these signs.
b. By prescription of 10 years. Prescription runs irrespective of good faith or bad
faith of the possessor and whether or not he has just title. The only requirement
is adverse possession. Only continuous and apparent easements can be
acquired by prescription. When one made a window on such party wall without
the consent of the other, the latter may order the closure of the same unless ten
years already have elapsed since the opening of the window whether the former
be in good faith or bad faith
Computation of prescriptive period

a. Positive easement – The 10 year period is counted from the day when the owner of
the dominant estate begins to exercise it; and

Now, for example, regarding the window in a party wall, from the day the opening or
window was built. Under this kind o f easement no part owner must obtain the consent
of the others when he intends to open a window or aperture of any kind in a party wall.
Prescription runs from the time of the opening of the window.
b. Negative easement – from the day a notarial prohibition is made on the servient
estate.
Negative easement cannot be acquired by prescription since they are non-apparent.
However, for purposes of prescription, there are negative easement that can be
considered “apparent”not because there are visible signs or their existence but because
of the making of the NOTARIAL PROHIBITION which makes it apparent.
NOTE: In negative easement there is a need of a formal act.
Kinds of easement that can be acquired by title or prescription:
Continuous and apparent easement may be acquired by title or prescription.
While discontinuous and apparent, continuous and non-apparent and discontinuous and
non-apparent may be acquired by title.
What happens when a court declares an easement against one in favor of another
immovable? Is this another kind of acquiring easement through judicial declaration?
No. Resultantly, when the court says that an easement exists, it is not creating one. For,
even an injunction cannot be used to create one as there is no such thing as a judicial
easement. The court merely declares the existence of an easement created by the
parties (La Vista Association, Inc. v. CA, G.R. No. 95252, September 5, 1997).
NOTE: If the owner of the servient estate refuses to execute the deed of recognition, the
court may, in its judgment, declare the existence of the easement.

11. Rights and obligations of owners of the dominant and servient estates
As it was said there are two parties in an easement. The dominant estate and Servient
estate The law defines the rights of the owners of these estates.
For the owner of the dominant estate he has the rights to:

1. Make on the servient estate all works necessary for the use and preservation of the
servitude (NCC, Art. 627);

Provided: a. Works must be done at his own expense;

b. he must notify the servient owner;
c. he must select convenient time and manner;
d. he must not alter the easement nor render it more burdensome.
2. Ask for mandatory injunction to prevent impairment of his right as when the owner of
the servient estate
obstructs the right of way by building a wall or fences. (Resolme v. Lazo, G.R. No. L-
8654, March 30, 1914);
3. Renounce the easement if he desires to be exempt from contributing necessary
expenses (NCC, Art. 628); and
4. Exercise all rights necessary for the use of the easement (NCC, Art. 625).
As to the obligations of the owner of the dominant estate these are:

1. He cannot Exercise the easement in any other manner than that previously
established (NCC, Art. 626);

For instance, an estate owned by Pedro has the right of way over another estate
owned by Juan, Pedro may allow his friends to cross estate owned by Juan , unless the
same has been subject of a contrary stipulation. When there is such a stipulation as to
who will use, Pedro may not allow his friend to use the same as this act will be
tantamount of increasing the burden on the servient estate od Juan.

2. He cannot Alter the easement or render it more burdensome [NCC, Art. 627(1)];

For instance, in an easement of right of way, one may not increase the
width of the path nor deposit soil or materials outside of the boundaries agreed upon for
these acts would be increasing the burden although others may use the path as long as
there is nu stipulation to the contrary.

3. He shall Notify the servient owner of works necessary for the use and preservation of
the servitude [NCC, Art. 627(2)];

4. He must Choose the most convenient time and manner of making the necessary
works as to cause the least inconvenience to the servient owner; and

5. If there are several dominant estates he must Contribute to the necessary expenses
in proportion to the benefits derived from the works [NCC, Art. 628(1)]. NOT on value
of each estate/ In the absence of proof, it is presumed that the benefits derived by each
are equal.

6. He can may make, at his Own expense, on the servient estate, any works necessary
for the use of servitute, Provided it will not alter or make it more burdensome.
(NCC,Art.627(1));

Rights of the servient owner (RMC)

1. Retain the ownership of the portion of the estate on which easement is imposed;

While the he remains the owner over the servient estate,, his exercise of ownership is
limited.
2. Make use of the easement unless there is an agreement to the contrary [NCC, Art.
628(2)]; and

3. Change the place or manner of the use of the easement, provided it be equally
convenient [NCC, Art. 629(2)].

Obligations of the Servient Owner:

1. He cannot Impair the use of the easement. When this happens, he must restore the
easement to conditions to the status quo at his expense plus damages

XPN:
(1) When the easement has become very inconvenient to the said servient
owner; and

(2) If it prevents him from making any important works, repairs, or improvements
thereon. This however follows that he must offer another place or manner equally
convenient and in such a way that no injury is caused thereby to the owner of the
dominant estate or to those who have a right to the use of the easement.

2. He must Contribute to the necessary expenses in case he uses the easement, unless
otherwise agreed upon [NCC, Art. 628(2)].

12. Modes of extinguishing easements

Easements are extinguished:

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

It is enough that the merger be with respect to the portion of the tenement that is
affected by the servitude, or the part for the benefit of which it was established.

Where the merger is temporary or under resolutory condition, there is at most a

suspension, but not an extinguishment of the servitude.

2. By Non-user for 10 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;

Non-use must be due to voluntary abstention by the dominant owner, and not to
fortuitous event, because the basis of this cause of extinguishment is a presumptive
renunciation.
NOTE: Reckoning point:
1. Discontinuous – counted from the day they ceased to be used.
2. Continuous – counted from the day an act adverse to the exercise takes place.

Non-user presupposes that the easement has been used before but it was abandoned
for 10 years. Thus it cannot apply to easements which have not been used.

NOTE:
The right to claim or exercise some legal easements never prescribe, since they are
founded on necessity, although the manner or form of using the legal easement may
indeed prescribe, such as using a particular path. But legal easement of drainage may
be extinguished by prescription and non-user for ten years.

Use by at least a co-owner of the dominant estate of the easement prevents

prescription as to the others inasmuch as an easement is indivisible. Thus if one co-
owner has continued the use, the others who may not have used for more than ten
years may still use the easement.

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;

The impossibility of use only suspends the servitude until such time when it can be used
again.

4. By the Expiration of the term or the fulfillment of the condition, if the easement is
temporary or conditional;

e.g. An easement was agreed upon to last till the owner of the dominant easement
becomes a lawyer. When the condition is fulfilled, the easement ceases.

5. By the Renunciation of the owner of the dominant estate; and

Renunciation must be express, definite, clear, specific (otherwise it might be confused

with non-user). This is particularly true for discontinuous easements. Renunciation of a
real right must be reflected in a public instrument.

6. By the Redemption agreed upon between the owners of the dominant and servient
estates (NCC, Art. 631).
This is voluntary redemption, existing because of an express stipulation. The stipulation
may provide conditions under which the easement would be extinguished (Paras,
2008).
Article 631 of the New Civil Code the following may be added:
(1) annulment or rescission of title constituting easement;
(2) termination of the right of the grantor; and
(3) abandonment of the servient estate as when there exist a shorter access to a public
highway that was opened thereby rendering the easement not being used and
abandoned.; and
(4) eminent domain. (4 Manresa, 5th ed., 590) Ownership of the estate subjected to
burden is vested to the government.
13. Different legal easements
What is legal easement?
They are the easements imposed by the law, and which have for their object-
either:
a. Public use;
 All matters concerning easements established for public or communal use shall
be governed by:
1. the special laws and regulations relating thereto, and
2. in the absence thereof, by the provisions of this Title. 
b. The interest of private persons
Easements established by law in the interest of private persons or for private use
shall be governed by
1.Agreement of interested parties provided not provided not prohibited by law nor
prejudicial to a third person;
2. to the provisions of general or local laws and ordinances for the general
welfare.
3. the CIVIL CODE
These are the legal easements:
1. Easement relating to Waters;
2. Easement relating to right of Way;
3. Easement of Party wall;
4. Easement of Light and view;
5. Drainage of Building;
6. Intermediate distances and works for certain construction and plantings;
7. Easement against Nuisance; and
 8. Easement relating to lateral and Subjacent support.
 
14. . Easement relating to Waters
Different easements relating to waters: (NBREWAC)

A .Natural drainage (NCC, Art. 637);

B. Drainage of Buildings (NCC, Art. 674);

C. Easement on Riparian banks for navigation, floatage, fishing, salvage, and tow path
(NCC, Art. 638);

D. Easement of a Dam (NCC, Artsicles 639 and 647)

E. Easement for drawing Water or for watering animals (NCC, Arts. 640-641);

F. Easement of Aqueduct (NCC, Articles 642- 646); and

G. Easement for the Construction of a Stop Lock or Sluice Gate (NCC, Art. 647)

A .Natural drainage (NCC, Art. 637);

Lower estates are obliged to receive the waters which naturally and without the
intervention of man descend from the higher estates, as well as the stones or earth
which they carry with them.

The owner of the lower estate cannot construct works which will impede this easement;
neither can the owner of the higher estate make works which will increase the burden. 

By the enactment of P.D. No. 1067 or the Water Code of the Philippines this provision
now governs as the above mentioned provision has been superseded:

ARTICLE 50. Lower estates are obliged to receive the waters which naturally and
without the intervention of man flow from the higher estates, as well as the stone or
earth which they carry with them.

The owner of the lower estate can not construct works which will impede this natural
flow, unless he provides an alternative method of drainage; neither can the owner of the
higher estate make works which will increase this natural flow.

Duties of Servient Estate

The owner cannot construct works that would impede the easement such as blocking
dam which would divert the flow and burden another tenement nor can he enclose his
land by ditches or fences which would impeded the flow but he may regulate or control
the descent of water.

Should he really cause an obstruction, as when he builds a dike, the easement may be
extinguished, by non-user and barred by prescription if the action to destroy the dike is
brought only after more than ten years.

Duties of Dominant Estate

1. He cannot construct works which will increase the burden, but he may construct
works preventing erosion;

Thus he cannot collect water, nor increase the velocity of the decent by making the
ground more impervious or less absorbent.

2. They must compensate the owners of the servient estates if the waters are result of
an overflow from irrigation dams, or the result of artificial descent done by man and
damages caused by reason thereof,
3. dominant estate may construct works which prevents erosion.

Prescription of easement of natural drainage

The easement of natural drainage prescribes by non-use for 10 years (Paras, 2008).

Indemnity in easement of natural drainage

Art. 637 of the New Civil Code, which provides for the easement of natural drainage,
does not speak of any indemnity. It follows that no indemnity is required as long as the
conditions laid down in the article are complied with (Paras, 2008).

B. Drainage of Buildings (NCC, Art. 674);

ARTICLE 674. 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. 

There restrictions to the easement of Drainage of Buildings:

a. A person should let the rain water fall on his own land and not on the adjacent
land, even if he be a co-owner of the latter.
b. Rain water must be collected instead of just being drift to the adjacent or lower
land.
C. Easement on Riparian banks for navigation, floatage, fishing, salvage, and tow
path (NCC, Art. 638);

The banks of rivers and streams and the shores of the seas and lakes throughout their
entire length and within a zone of three meters in urban areas, 20 meters in agricultural
areas, and 40 meters in forest areas along their margins are subject to the easement of
public use in the interest of recreation, navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this zone bigger than what is necessary for
recreation, navigation, floatage, fishing or salvage or to build structures of any kind (Art.
51, PD 1067)

The easement is allowed on:

a. River banks (whether the bank be private or public, whether the river be
navigable or not) a public easement for:
1. Navigation;
2. Floatage
3. Fishing’and
4. Salvage
b. On banks of navigable or floatable rivers, the easement of tow path-for the
exclusive service of river navigation and floatage

Width of the ZONE BURDENED

a. 3 meters along river margins, for navigation, floatage, salvage and fishing.
b. by tow path if for animals two meters and one meter for pedestrians.

D. Easement of a Dam (NCC, Artsicles 639 and 647)

A person may establish the easement of abutment or of a 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. It is necessary to build a dam;
3. The person to construct it is not the owner of the banks or lots which must support it;
and
4. Payment of proper indemnity is made.

He must seek the permission of the owner and in case of latter’s refusal, he must
secure authority from the proper administrative agency.

One who for the purpose of irrigating or improving his estate, has to construct a stop
lock or sluice gate in the bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its construction, after payment of damages,
including those caused by the new easement to such owners and to the other irrigators.
For the construction of a stop lock or sluice gate the following requisites must be
present:

a. The purpose must be for irrigation or improvement;

b. The construction must be on the estate of another
c. Damages must be paid
d. Third person should not be prejudiced.

E. Easement for drawing Water or for watering animals (NCC, Arts. 640-641);

This is a combined easement for drawing of water and right of way.

Requisites for easement for watering cattle
1. It must be imposed for reasons of public use;
2. It must be in favor of a town or village; and
3. Indemnity must be paid (NCC, Art. 640).

NOTE: The right to make the water flow thru or under intervening or lower estates.

Requisites for drawing water or for watering of animals

1. It must be for public use
2. Owner of the dominant estate has the capacity to dispose of the water;

3. The water is sufficient for the use intended;

4. Proposed right of way is the most convenient and the least onerous to third
persons; and
5. Pay indemnity to the owner of the servient estate (NCC, Art. 643).

F. Easement of Aqueduct (NCC, Articles 642- 646); and

The easement of aqueduct, for legal purposes, is considered continuous and apparent
even though the flow of water may not be continuous or its use depends upon the
needs of the dominant estate or upon a schedule of alternate days or hours (NCC, Art.
646).

It is the right to make water flow through intervening estates in order that one may make
use of said waters.

Easement of aqueduct is not acquirable by prescription after 10 years because although

it is continuous and apparent in character, under the Water Code of the Philippines
(P.D. 1067), all waters belong to the State; therefore, they cannot be the subject of
acquisitive prescription (Jurado, 2011).

Requisites for easement of aqueduct

1. Indemnity must be paid to the owners of intervening estates and to the owners of
lower estates upon which waters may filter or descend.

NOTE: The amount usually depends on duration and inconvenience caused.

2. If for private interests, the easement cannot be imposed on existing buildings,
courtyards, annexes, out-houses, orchards or gardens but can be on other things, like
road, provided no injury is caused to said properties.

3. There must be a proof:

a. That the owner of the dominant estate can dispose of the water ;
b. That the water is sufficient for the use which it is intended ;

c. That the proposed course is the most convenient and least onerous to third persons
and the servient estate; and
d. That a proper administrative permission has been obtained (Paras, 2008).

Right of the owner of the servient estate to fence

The easement of aqueduct 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 owner of the dominant estate
a. any damage, or
b. render necessary repairs and cleanings impossible (NCC, Art. 645).

Obligations of the Dominant Owner

a. To keep the aqueduct in proper use or care

b. To keep on hand necessary materials for its use.

G. Easement for the Construction of a Stop Lock or Sluice Gate (NCC, Art. 647)

One who for the purpose of irrigating or improving his estate, has to construct a stop
lock or sluice gate in the bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its construction, after payment of damages,
including those caused by the new easement to such owners and to the other irrigators.

For the construction of a stop lock or sluice gate the following requisites must be
present:

a. The purpose must be for irrigation or improvement;

b. The construction must be on the estate of another
c. Damages must be paid
d. Third person should not be prejudiced.

Compulsory easement of right of way

Article ARTICLE 649 provides that.

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.

Should this easement be established in such a manner that its use may be continuous
for all the needs of the dominant estate, establishing a permanent passage, the
indemnity shall consist of the value of the land occupied and the amount of the damage
caused to the servient estate.

In case the right of way is 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, the indemnity shall consist in the payment of the
damage caused by such encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the
proprietor’s own acts. (564a)

Easement of right of way is the right granted to a person or class of persons to pass
over the land of another by using a particular pathway therein, to reach the former’s
estates, which have no adequate outlet to a public highway subject, however to
payment of indemnity to the owner of the land burdened bu the right. (Pineda, 2009)
What is right of way?
It may refer either to the easement itself, or simply, to the strip of land over which
passage can be done (Paras, 2008).
What are the Requisites for easement on right of way (POON-D) (1996, 2005, 2010
Bar)
1. The easement must be established at the point least Prejudicial to the servient
estate and consistent with this rule, where the distance from the dominant estate
to a public highway may be shortest. (NCC, Art. 649);

Note that: in determining the right of way means it is the shortest way and the one
which will cause the least damage to the property to the servient estate in favor of the
dominant estate.
The Benefit should not be so great as to completely absorb or impair the usefulness of
the servient estate for then, this would be not merely and encumbrance or a limitation
but the cancellation of the rights of the servient estate.

Q: What if the property is not the shortest way but will cause the least damage to
the servient estate?
A: The way which will cause the least damage should be used even if it will not be the
shortest.
The easement of right of way shall be established at the point least prejudicial to the
servient estate and where the distance from the dominant estate to a public highway is
the shortest. In case of conflict, the criterion of least prejudice prevails over the criterion
of shortest distance.

2. Claimant must be an Owner of enclosed immovable or with real right such as a

usufructuary. For a lessee, he should as the lessor to demand the easement from
the adjoining estates

The convenience of the dominant estate has never been the gauge for the grant
of compulsory right of way. To be sure, the true standard for the grant of the legal right
is "adequacy." Hence, when there is already an existing adequate outlet from the
dominant estate to a public highway, as in this case, even when the said outlet, for one
reason or another, be inconvenient, the need to open up another servitude is entirely
unjustified (Dichoso v. Marcos, G.R. No. 180282, April 11, 2011; Alicia B. Reyes v.
Spouses Francisco S. Valentin and Anatalia Ramos, G.R. No. 194488, February 11,
2015).
3. There must be no adequate Outlet to a public highway [NCC, Art. 649, (1)];

4. The right of way must be absolutely Necessary not mere convenience;

5. The isolation must not be Due to the claimant’s own act (NCC, Art. 649); and

6. There must be payment of proper Indemnity.

To determine the proper indemnity consider:

If the passage is:
a. Continuous and permanent – The indemnity consists of the value of the land
occupied plus the amount of damages caused to the servient estate; (when the
easement expires, or is extinguished, the indemnity shall be returned without interest for
the interest will be considered as the rent. and

b. Temporary – Indemnity consists in the payment of the damage caused.

It is considered temporary when for instance, the estate is not being cultivated
the whole year young, and when harvesting is only once in a while or when the carrying
of materials is needed to improve a building.

EXCEPTIONS TO INDEMNITY REQUIRMENTS:

1. When a piece of land acquired by sale, exchange or partition is surrounded by other
estates of the vendor, exchanger or co-owner. In such case he shall be obliged to grant
a
652); or
2. When a piece of land acquired by donation surround the estate of the donor or
grantor. In such case, the donee or grantee shall be obliged to grant a right of way
without indemnity (NCC, Art. 653).

NOTE: If it is the land donated that is surrounded by the estate of the donor or gantor,
although the latter is obliged to grant a right of way, he can demand the required
indemnity (NCC, Art. 652).

How will be the width of the easement of right of way?

The width of the easement shall be that which is sufficient for the needs of the dominant
estate (NCC, Art. 651). And may be adjusted over time depending on the needs of the
dominant estate.
For instance, one may demand driveway leading for ones own vehicle and the
measurement will depend on the needs of the dominant owner that is it will be
measured to the width of his vehicle. This is so as motor vehicles have become
indispensable at the present age.
Liability for repairs and taxes
ARTICLE 654. If the right of way is permanent, the necessary repairs shall be made by
the owner of the dominant estate.
A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of
the servient estate. This is so as the owner of the servient estate is still the owner of the
encumbered property.
What if a new road opens what will happen to the easement?
1. The opening of a public road giving access to isolated estate; or
2. When the dominant estate is joined to another estate (such as when the dominant
owner bought an adjacent estate) which is abutting a public rode, the access being
adequate and convenient (NCC, Art. 655).

Both cases must substantially meet the needs of the dominant estate. Otherwise, the
easement may not be extinguished..

The extinguishment of the easement is not however, automatic as he owner of the

servient estate must make a demand that the easement be extinguished, returning what
he may have received by way of indemnity. The interest on the indemnity shall be
deemed to be in payment of rent for the use of the easement.
Temporary easement of right of way
If it be indispensable for the construction, repair, improvement, alteration or
beautification of a building, to carry materials through the estate of another, or to raise
thereon scaffolding or other objects necessary for the work, the owner of such estate
shall be obliged to permit the act, after receiving payment of the proper indemnity for the
damage caused him (NCC, Art. 656). The indemnity in this case does not have to be
returned since the damage had already been caused.
Easement of right of way for the passage of livestock or sevidumbres pecurias
Governed by the ordinances and regulations relating thereto and in their absence, by
the usages and customs of the place.
Maximum width:
1. Animal path – 75 meters;
2. Animal trail – 37 meters and 50 centimeters; and
3. Cattle – 10 meters (unless prior to the old Civil Code, vested rights has been
acquired to a greater width) (Paras, 2008).

15. Easement of Party wall

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

What law shall govern on easement of party wall?

1. The Civil Code;

2. Local ordinances and customs; and
3. The rules co-ownership.

The easement of party wall is also called servidumbre de

medianera.. It defined as a wall erected on the line between the adjoining properties
belonging to different persons, for the use of both estates. (Pineda, 2009)
In case of a party wall, what estate is the servient estate?
The party wall is itself the servient. In determining the dominant and servient estates,
we should always consider the definition given in ARTs 613 and 614 of the NCC. The
immovable in favor of which the easement is established is called the dominant estate,
that which is subject thereto is the servient estate. It is clear that an easement of a party
wall is established in favor of the co-owners of the party wall, while the estate which is
subject to the encumbrance is the party wall itself.
Q: Is the easement of party wall really an easement or is it a case of co-
ownership?
A: While it is called an easement by the law, the law in some articles refers to it as a
case of co-ownership or part-ownership (NCC, Articles 662, 665, 666). The truth is that,
it is a compulsory kind of co-ownership (FORGED INDIVISION) where the shares of
each owner cannot be separated physically (otherwise the wall would be destroyed),
although said shares may in a sense be materially pointed out. Thus, each co-owner
owns the half nearest to him (Paras, 2008).

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;
or
3. In fences, walls and live hedges dividing rural lands (NCC, Art. 659).

A title conferring expressly ownership in one owner prevails over a mere exterior sigh
from which there is merely an inference.

It is understood that there is an exterior sign, contrary to the easement of party

wall whenever:
1. There is a window or opening in the dividing wall of the buildings;
2. 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. Entire wall is built within the boundaries of one of the estates;
4. The dividing walls 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, being built by masonry, had stepping stones, which at certain
intervals project from the surface of one side only, but not on the other; or
7. The lands enclosed by fences or live hedges adjoin others which are not enclosed.
In all these cases, the ownership is deemed to belong exclusively to the owner of the
property which has in its favor the presumption based on any of these signs.

When these exterior signs come in conflict with each other as when one owner has in
his favor ans some against him, they will generally cancel each other, unless it can be
shown from the purpose of the wall that it had been made for the exclusive benefit of
one.

ARTICLE 661 further shows a presumption of a party wall. Ditches or drains opened
between two estates are also presumed as common to both, if there is no title or sign
showing the contrary.

There is a sign contrary to the part-ownership whenever the earth or dirt removed to
open the ditch or to clean it is only on one side thereof, in which case the ownership of
the ditch shall belong exclusively to the owner of the land having this exterior sign in its
favor. (574)
Right to Increase Height of Party Wall
Every part-owner of a party has the right to increase the height of the party wall subject
to the following conditions:
1. The same shall be done at his expense;
2. He shall pay for any damage which may be caused by his work, even though such
damage may be temporary; and
3. If the party wall cannot bear the increased height, the owner desiring to raise it shall
be obliged to reconstruct it at his own expense, If it be necessary to make it thicker, he
shall give space required from his own land.
4. he who desires to increase the height must bear the costs of preservation
5. Must pay for the increased cost of preservation..

Who shall pay the Repairs and Maintenance of a Party Wall

GR: The expenses for construction and repairs of party walls shall be shouldered by all
the owners of the party wall.
XPN: If a part owner renounces his part ownership on the party wall.

The renunciation must be

a. absolute, total or complete. Hence there can be no partial renunciation:
b. must be made voluntarily and with full knowledge of the facts;
c. must be made before the expenses are incurred.
d. It is made with the implied condition that the other owner should make or pay
for the repairs.
Hence if the repairs is not made, it is as if no renunciation had been done abd
co-ewnership remains
e. The subject of renunciation must be both share in the wall and the share in
the land for the wall cannot be used without the land except when the wall is
to be removed to some other place.

NOTE: The owner of the building or structure supported by a party wall who desires to
demolish such building or structure, may RENOUNCE his part ownership of the wall.
Cost of all repairs and works necessary to prevent any damage which the demolition
may cause to the party wall on this occasion shall be borne by him.

Renunciation can be made only to free himself to the contributions unless the repair had
already been contracted for and made or he still uses the wall as when it supports his
building.

16. Easement of Light and view

It deals with two kinds of easement:
a. The easement of LIGHT — “Jus luminum”
What is the purpose of the easement?
The opening is for the purpose of admitting light and not for viewing. As in the
case of small windows, not more than 30 cm. square, at the height of the ceiling joist,
the purpose of which is to admit light, and a little air, but not VIEW) (Paras. 2008).
b. The easement of VIEW — “Servidumbre prospectus” The opening is for the purpose
of viewing. As in the case of full or regular windows overlooking the adjoining estate)
(Incidentally, although the principal purpose here is VIEW, the easement of light is
necessarily included, as well as the easement of altius non tollendi [not to build higher
for the purpose of obstruction (Paras, 2008).

ARTICLE 667 of the NCC provides that: No part-owner may, without the consent of the
others, open through the party wall any window or aperture of any kind. (580)
A window or opening in the dividing wall of buildings is an exterior sign which rebuts the
presumption that the wall is a party wall; one part owner may not, therefore, make any
window or opening of any kind thru a party wall without the consent of others.
For instance, Pedro and Juan are co-owners of a party wall. Pedro cannot make
an opening on the wall without the permission of Juan. Juan may then order the
opening be closed unless the period of ten years from the time of opening
already lapsed.

When easement of light and view is positive and when negative

a. Positive — If the window is thru a party wall (NCC, Art. 668, par. 1). Therefore,
the period of prescription commences from the time the window is opened.

NOTE: The mere opening of the window does not create the easement; it is only when
after a sufficient lapse of time the window still remains open, that the easement of light
and view is created (NCC, Art. 668, par. 1). Moreover, even if the window is on one’s
own wall, still the easement would be positive if the window is on a balcony or projection
extending over into the adjoining land (Paras, 2008).

b. Negative — If the window is thru one’s own wall, that is, thru a wall of the
dominant estate (NCC, Art. 668, par. 2). Therefore, the time for the period of
prescription should begin from the time of notarial prohibition upon the adjoining
owner. “Formal prohibition’’ or “formal act’’ (under the old Civil Code, Art. 538)
means not merely any writing, but one executed in due form and/or with
solemnity — a public instrument (Laureana A. Cid v. Irene P. Javier, et al., L-
14116, June 30, 1960).
XPN: Even if the window is on the wall of the dominant estate, still easement of light
and view would be POSITIVE if the window is on the balcony or extension extending
over the land of the servient estate.

Thus, the period of prescription for the acquisition shall be counted from the time
of:
1. Opening of the window, if through a party wall; or
2. The formal prohibition upon the proprietor of the adjoining land, if window is through a
wall on the dominant estate.

Example. Pedro and Juan are adjoining owners. Pedro then opened in his own wall a
window in the year 2004. In 2009, Pedro made a notarial prohibition against Juan not to
obstruct the view. In 2015, May Juan still make an obstruction?
Yes. While more than 10 years had elapsed since the opening of the window, still less
than 10 years have elapsed since the notarial prohibition. Pedro in this case is trying to
obtain a negative easement consequently no easement has yet been acquired.

Openings at height of ceiling joints to admit light (NCC, Art. 669)

When the distances in Art. 670 are not observed, the owner of a wall which is not a
party wall can make an opening for the purpose of admitting light and air, but NOT for
view. The opening or windows referred to are for light and air not view and can be made
on walls of buildings only. They are referred to as RESTRICTED VIEW.
In making the openings, the following should be followed:
1. The size must not exceed 30 centimeter square;
2. The opening must be at the height of the ceiling joists or immediately under the
ceiling;
3. There must be an iron grating imbedded in the wall; and
4. There must be a wire screen.

If the wall becomes a party wall – A part owner can order the closure of the opening
because no part owner may make an opening through a party wall without the consent
of the others; it can also obstruct the opening unless an easement.
Right of adjoining owner:

The owner of the tenement or property adjoining the wall in which the openings are
made can close them should he acquire part-ownership thereof, if there be no
stipulation to the contrary.

He can also obstruct them by constructing a building on his land or by raising a wall
thereon contiguous to that having such openings, unless an easement of light has been
acquired. 
Direct and oblique views (NCC, Articles 670-671)

ARTICLE 670. No windows, apertures, balconies, or other similar projections which

afford a direct view upon or towards an adjoining land or tenement can be made,
without leaving a distance of two meters between the wall in which they are made and
such contiguous property.

Neither can side or oblique views upon or towards such conterminous property be had,
unless there be a distance of sixty centimeters.

The nonobservance of these distances does not give rise to prescription. (582a)

ARTICLE 671. The distances referred to in the preceding article shall be measured in
cases of direct views from the outer line of the wall when the openings do not project,
from the outer line of the latter when they do, and in cases of oblique view from the
dividing line between the two properties.

These pertains to regular windows and its condition either direct or oblique view.
Direct view - It is that which is obtained from a wall parallel to the boundary line, such
that from the opening in such wall it is possible to see the adjoining tenement without
the necessity of putting out or turning one's head side.
Oblique view - It is obtained from a wall at an angle with the boundary line; in order to
see the adjoining tenement, it is necessary to turn one's head to the left or to the right.
Restrictions as to easement of views

1. For windows having Direct Views or Face to face view The distance of two (2)
meters between the wall and the boundary must be observed; and
2. Oblique Views: (Walls perpendicular or at an angle to the boundary line) must not be
60 cm to the nearest edge of the window (NCC, Art. 670).
Any stipulation to the contrary is void (NCC, Art. 673).
NOTE: When windows are opened at a distance less than that prescribed by Art. 670
from the boundary lines, they constitute unlawful openings, and the owner who opened
them may be ordered by the court to close them.
Prescription may still be acquired as a negative easement after ten years from the time
of notarial prohibition.
The distance referred to in Art. 670 shall be measured in cases of direct views from the
outer line of the wall when the openings do not project, from the outer line of the latter
when they do, and in cases of oblique view from the dividing line between the two
properties (NCC, Art. 671).

Where buildings are separated by a public way or alley (NCC, Art. 672)
The distance provided in Art. 670 which is two meters is not applicable to buildings
where there is a public way or alley separating such buildings provided that it is not less
than three meters wide, the minimum width is necessary for the sake of privacy and
safety.

NOTE: The width of the alley is subject to special regulations and ordinances.
A private alley opened to the use of the general public falls within the provision of Art.
672.

Where easement of direct view had been acquired (NCC, Art. 673)
Whenever the easement of direct view has been acquired by any such title, there is
created a true easement. The owner of the servient estate cannot build thereon at less
than a distance of three meters from the boundary line.

NOTE: The title used in Art. 673 refers to any modes of acquiring easements:
1. Contract;
2. Will;
3. Donation; or
4. Prescription.

The distance may be increased or decreased by stipulation of the parties provided that
in case of decrease, the minimum distance of two meters or sixty centimeters
prescribed in Art. 670 must be observed, otherwise it is void. The said distances involve
considerations of public policy and the general welfare; hence, they should not be
rendered ineffective by stipulation.
What happens if these conditions are not complied with?

If these conditions are violated, the owner of the tenement or property adjoining the wall
may demand for its closure or he may compel that the foregoing requirements be complied with.
Even in the absence of any violation, the owner of the adjacent property may close the opening if
he should acquire part-ownership of the wall where the opening has been made, or in other
terms, the wall has become a party wall.

NOTE: If the opening has not yet acquired an easement of light, the owner of the adjacent
property may, nonetheless, obstruct the opening by constructing a building on his land or by
raising a wall thereon contiguous to that having such opening even if there is no conditions
violated or no part-ownership of the wall is acquired.

17. Easement of Drainage of buildings

 The easement of drainage of buildings is 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.

Ownership of Rain Water

Pursuant to the provision of the Water Code of the Philippines, the, rain waters falling on
private lands shall belong to the State. However, any person who captures or collects water by
means of cisterns, tanks or pools shall have exclusive control over such water and he shall also
have the right to dispose of the same.

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 (NCC, Art. 674).
This does not really create an easement, for it merely regulates the use of a person’s
property insofar as rain water is concerned.
The restrictions are:
a. A person should let rain water fall on his own land and not on the adjacent land
even if he be a co-owner of the latter.
b. Rain water must be collected instead of being allowed to drift to the adjacent or
lower land.
Easement to receive falling rain waters (NCC, Art. 675)
The owner of a tenement or a piece of land, subject to the easement of receiving
water falling from roofs, may build in such manner as to receive the water upon
his own roof or give it another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any nuisance or damage whatever
to the dominant estate.

Easement giving outlet to rain water where house surrounded by other houses

ARTICLE 676. Whenever the yard or court of a house is surrounded by other houses,
and it is not possible to give an outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can be demanded, giving an
outlet to the water at the point of the contiguous lands or tenements where its egress
may be easiest, and establishing a conduit for the drainage in such manner as to cause
the least damage to the servient estate, after payment of the proper indemnity. 

Requisites:
1. There must be no adequate outlet to the rain water because the yard or court
of a house is surrounded by other houses;
 2. The outlet to the water must be at the point where egress is easiest, and
establishing a conduit for drainage;
3. outlet must be that which provides least possible damage; and
4. There must be payment of proper indemnity (NCC, Art. 676).

Ownership of Rain Water

Pursuant to the provision of the Water Code of the Philippines, the, rain waters
falling on private lands shall belong to the State.
18. Intermediate distance for planting
Construction and plantings near fortified places
No constructions can be built or plantings made near fortified places or fortresses
without compliance with the conditions required in special laws, ordinances, and
regulations relating thereto (NCC, Art. 677).
The easement established in this case is premised by the demand for public
security and safety or that of national security.
Construction of aqueduct, well, sewer, etc.

ARTICLE 678. No person shall build any aqueduct, well, sewer, furnace, forge,
chimney, stable, depository of corrosive substances, machinery, or factory which by
reason of its nature or products is dangerous or noxious, without observing the
distances prescribed by the regulations and customs of the place, and without making
the necessary protective works, subject, in regard to the manner thereof, to the
conditions prescribed by such regulations.

These prohibitions cannot be altered or renounced by stipulation on the part of

the adjoining proprietors, as these are a matter of public safety.

The law to govern building of aqueduct, well, sewer, furnace, forge, chimney,
stable, depository of corrosive substances, machinery, or factory which by reason of its
nature or products is dangerous or noxious are:

a. Regulations and customs, in its absence

b. Those building must take necessary precautions in order to avoid any

damage to the neighboring lands or tenements.

Rules with respect to planting of trees.

It is regulated by:
a. the local ordinances and in the absence thereof,
b. by the customs of the place,
c. and in default thereof, by art, 679.
 Art 679 of the NCC provides for the distance of planting trees:
(a.) Atleast two (2) meters from the dividing line of the estate in case of tall
trees; and
(b.) At a distance of atleast 50 centimeters in case of shrubs or small
trees.
Q: Can the adjoining estate cut the roots and the branches without the consent of
the owner of the tree?
The law provides that If the branches of any tree should extend over a neighboring
estate, tenement, garden or yard, the owner of the latter shall have the right to demand
that they be cut off insofar as they may spread over his property, and, if it be the roots of
a neighboring tree which should penetrate into the land of another, the latter may cut
them off himself within his property.
May the right to demand the cutting of the branches or roots prescribe?
a. as to the branches, this does not prescribe if tolerated by invader owner; if
demand is made, prescription runs from the date of said demand.
b. As to roots, it is imprescriptible unless a notarial prohibition is made. A notarial
prohibition can be made even is the intruding roots are already owned by the
invaded owner, precisely because an easement in this case, an easement of
restraint is made on somebody else or his property.
The right of the owner of the tree can cut down the tree himself as when the
branches or roots invaded the adjacent land as he owns the tree.

 Fruits naturally falling upon adjacent land belong to the owner of said land to
compensate him for the inconvenience causes by the branches of trees extending over
his land. The fruit must not only fall but must naturally fall and not taken down by poles
or shaken..
If the fruits fall on public property, the owner of the tree retains ownership.
Easement against nuisance

ARTICLE 682. 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.

ARTICLE 683. Subject to zoning, health, police and other laws and regulations,
factories and shops may be maintained provided the least possible annoyance is
caused to the neighborhood.

Nuisance is that which, among others, annoys or offends the sense and it should
therefore be prohibited.
Who is the servient or dominant in an easement against nuisance?
The proprietor or possessor of the building or piece of land, who commits the
nuisance through noise, jarring, offensive odor, etc.
The general public or anybody injured by the nuisance is the dominant.
Easement against nuisance is a negative easement because the proprietor or
possessor is prohibited to do something which he could lawfully do were it not for the
existence of the easement. However, a nuisance involves any act or omission which is
unlawful.
NOTE: The easement against nuisance is not an easement at all but a restriction upon
the ownership and not every limitation on the right of ownership is an easement.
19. Lateral and Subjacent Support

The right of lateral support ordinarily exists only with respect to the soil in its natural
condition,201 but our Civil Code expressly includes buildings in the protection of this easement.
In the words of the Code Commission, this kind of easement or servitude is so essential to the
stability of buildings. With this purpose, no proprietor shall make such excavations upon his
land as to deprive any adjacent land or building of sufficient lateral or subjacent support. Thus, a
proprietor is prohibited from making dangerous excavations.

Proprietor prohibited from making dangerous excavations

No proprietor shall make such excavations upon his land as to deprive any adjacent
land or building of sufficient lateral or subjacent support
What is lateral or subjacent support?
Lateral Support
This is the support on the vertical side of a land, the removal of which may cause the
land to crumble or slide.
Subjacent Support
This is the horizontal support underneath a land or building the removal of which may
cause the sinking or crumbling of the land or building.
They are distinguished as follows:
The support is lateral when both the land being supported and the supporting land are
on the SAME PLANE; when the supported land is ABOVE the supporting land, the
support is subjacent (Paras, 2008).
Remedies for violation of Art. 684
1. Claim for damages for injuries sustained; or
2. Injunction.
NOTE: Any stipulation or testamentary provision allowing excavations that cause
danger to an adjacent land or building shall be void.
Notice to owners of adjacent lands
Any proprietor intending to make any excavation contemplated in Articles 684-686 shall
notify all owners of adjacent lands.
The notice is mandatory except where there is actual knowledge of the proposed
excavation.
NOTE: The legal easement of lateral and subjacent support are NOT only applicable for
buildings already constructed at the time of the excavations but also to future buildings
that may be constructed on the adjoining lands.
Voluntary easement
An easement is voluntary when it is established by the will of the owners.

Governing Rules for Voluntary Easements

a. If created by title, contract, will, etc, such governs, the Civil Code is suppletory
b. If created by prescription, the forms and manner in which it had been acquired.
the Civil Code is suppletory
c. If created by prescription in proper case, that is may have been a contract
initially, but the form and manner may have extended or decreased by
prescription, the way the easement has been possessed, that is the manner and
form of possession. the Civil Code is suppletory
Persons who may constitute voluntary easement
Voluntary easements may be constituted by the owner possessing capacity to
encumber property. If there are various owners, all must consent; but consent once
given is not revocable.
NOTE: Third persons are not bound by a voluntary easement unless the same is duly
recorded with the proper authorities.
Q: For whose favor are voluntary easements established?
A:
1. Predial servitudes:
a. For the owner of the dominant estate; and
b. For any other person having any juridical relation with the dominant estate, if the
owner ratifies it.

2. Personal servitudes: for anyone capacitated to accept.

NOTE: In both cases, the Civil Code will only apply suppletorily.
When consent is necessary
The owner of a property in usufruct may create easements thereon without the
consent of the usufructuary provided the rights of the latter are not impaired (NCC, Art.
689).
 In this case the naked owner must respect the usufructuary.

However, the consent of both the naked owner and the beneficial owner is
necessary for the creation of perpetual voluntary easement (NCC, Art. 690). The
beneficial owner may by himself create a temporary easement wompatible with the
extent of his beneficial dominion.

If the easement is perpetual, the consent of the naked and beneficial owners is
necessary.

The rule however when a property is co-owned is:

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.

Expenses for work required for use and preservation of the easement.
If the owner of the servient estate has bound himself to pay for the cost of the work
needed for the use and preservation of he easement, and wants to free himself from
such obligations, he may simply renounce or abandon his property in favor of the owner
of the dominant state.

II. Nuisance
1. concept and definition
Concept

The word nuisance is derived from the French word “nuire” which means to injure, hurt
or harm. Literally, therefore, it means annoyance, anything that works hurt or injury. The
concept of nuisance is so broad that it covers “anything that unlawfully works hurt,
inconvenience or damage.” Nuisance could be “anything”— it could be an act or omission of a
person or simply an establishment, business or condition of a property or anything else — which
interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or
his comfort.
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

Ex. A house in danger of falling; fireworks or explosives; houses and buildings without
building permits and without provisions for the disposal of waste matter.

(2) Annoys or offends the senses; or

Ex. Too much horn blowing; leather factory; garbage cans; among others

(3) Shocks, defies or disregards decency or morality; or

Ex. Public exhibition of a naked man and a woman.

(4) Obstructs or interferes with the free passage of any public highway or street, or any
body of water; or

Ex. Houses constructed on public streets

(5) Hinders or impairs the use of property.

Ex. Illegal construction on another’s property.

A nuisance is one of the most serious hindrance to the enjoyment of life and property.

2. kinds of nuisance 
1. As to the number of persons affected: (2005 Bar)
a. Public (or common) – One that affects a community or neighborhood or any
considerable number of persons although the extent of the annoyance, danger or
damage upon individuals may be unequal (Suarez, 2011); and
b. Private – one which affects an individual or few persons only.
2. Other classification:
a. Nuisance per se – That kind of nuisance which is always a nuisance. By its nature, it
is always a nuisance all the time under any circumstances regardless of location or
surroundings; This may be summarily abated under the law of necessity.
 b. Nuisance per accidens – That kind of nuisance by reason of location, surrounding or
in a manner it is conducted or managed; May be abated inly with reasonable notice to
the person alleged to be maintaining or doing such nuisance.
c. Temporary – That kind which if properly attended does not constitute a nuisance;
d. Permanent – That kind which by nature of structure creates a permanent
inconvenience;
e. Continuing – That kind which by its nature will continue to exist indefinitely unless
abated;
f. Intermittent – That kind which recurs off and on and may be discontinued anytime;
g. Attractive Nuisance – One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who
fails to exercise ordinary care to prevent children from playing therewith or resorting
thereto, is liable to a child of tender years who is injured thereby, even if the child is
technically a trespasser in the premises.
Basis for liability

The attractiveness is an invitation to children. Safeguards to prevent danger must

therefore be set up.
Elements of attractive nuisance
1. It must be attractive;
2. Dangerous to children of tender years.
Q: Is a swimming pool an attractive nuisance?

A:
GR: A swimming pool or water tank is not an attractive nuisance, for while it is
attractive, it is merely an imitation of the work of nature. Hence, if small children are
drowned in an attractive water tank of another, the owner is not liable even if there be
no guards in the premises (Hidalgo Enterprises v. Balandan, et. al, G.R. No. L-3422
June 13, 1952).

XPN: Swimming pool with dangerous slide characteristics

NOTE: The doctrine of attractive nuisance does not generally apply to bodies of water,
artificial as well as natural in the absence of some unusual condition or artificial feature
other than the mere water and its location.
3. remedies against nuisance
Remedies against public nuisances
1. Prosecution under the RPC or any local ordinance;
2. Civil action; or
3. Abatement, without judicial proceeding (NCC, Art. 699)
If a civil action is brought by reason of the maintenance of a public nuisance, such
action shall be commenced by the city or municipal mayor.
XPN: Article 703. A private person may file an action on account of a public nuisance, if it is
specially injurious to himself.

Remedies against private nuisances

1. Civil action; or

2. Abatement, without judicial proceedings (NCC, Art. 705).

Any person injured by a private nuisance may abate it by removing, or if necessary, by

destroying the thing which constitutes the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is indispensable that the procedure for
extra-judicial abatement of a public nuisance by a private person be followed (NCC, Art.
706).

Every successive owner or possessor of property who fails or refuses to abate a

nuisance in that property started by a former owner or possessor is liable therefor in the
same manner as the one who created it (NCC, Art. 696).]

WHO MAY ABATE PUBLIC NUISANCES:

1. Article 700. The district health officer shall take care that one or all of the remedies
against a public nuisance are availed of.
Article 702. The district health officer shall determine whether or not abatement, without
judicial proceedings, is the best remedy against a public nuisance.

2. Private Persons
3. \Any private person may abate a public nuisance which is specially injurious to him by
removing or, if necessary, destroying the thing which constitutes the same, without
committing a breach of the peace, or doing necessary injury.

4. Other persons authorized by law

Other persons may be authorized by law to remove nuisances such as in Sitchon v.
Aquino, 98 Phil 458 where the Manila charter authorized the City Engineer to do so.

Extra-judicial abatement (2002 Bar)

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.

An extra-judicial abatement can only be applied for if what is abated is a nuisance per
se and not nuisance per accidens.

Liability for damages in case of extrajudicial abatement of nuisance:

 A private person or a public official extrajudicially abating a nuisance shall be liable for
damages:

(1) If he causes unnecessary injury; or

(2) If an alleged nuisance is later declared by the courts to be not a real nuisance.

Other rules:
a. Lapse of time cannot legalize any nuisance, whether public or private.
b.  The abatement of a nuisance does not preclude the right of any person injured
to recover damages for its past existence.

PUBLIC PRIVATE
NUISANCE NUISANCE
Definitio Affects a community or Affects the individual or
n neighborhood or any considerable
a number of individuals
number of
only
persons, although the extent of the
annoyance,
danger, or damage upon
individuals may be unequal
Remedies Criminal prosecution, civil action Civil action (abatement,
 (abatement, damages, injunction),
extrajudicial abatement
damages, injunction),
extrajudicial abatement
Who may City or municipal mayor, private Any private person injured by
institute person (only if the nuisance is the nuisance
the especially
complain
injurious to him)
t

III. Prescription
It is the means of acquiring ownership and other real rights or losing rights or action to
enforce such rights through lapse of time in the manner and under the conditions laid
down by law.
It is concerned with lapse of time in the manner and under conditions laid down by law
namely, that the possession should be in the concept of an owner public,peaceful,
uninterrupted and adverse.

1. Requisites
Requisites of prescription as a mode of acquiring ownership
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by prescription;
3. Possession of the thing under certain conditions; and
4. Lapse of time provided by law
Who may acquire by prescription (PSM)
1. Persons who are capable of acquiring property by other legal modes;
2. State; and
3. Minors – through guardians of personally

Persons against whom prescription may run

1. Minors and other incapacitated persons who have parents, guardians or other legal
representatives;
2. Absentees who have administrators, either appointed by them before their
disappearance, or appointed by the courts;
3. Persons living abroad, who have managers or administrators;
4. Juridical persons, except the State and its subdivisions (NCC, Art. 1108); and
5. Prescription, acquisitive and extinctive, runs in favor of, or against a married woman
(NCC, Art. 1110). This presupposes a situation where the parties involved are a married
woman and another person not her husband.

Prescription may be in favor of or against the married woman. Persons who are
disqualified from administering their property have a right to claim damages from their
legal representatives whose negligence has been the cause of prescription.

Things subject to prescription

All things within the commerce of men;
a. Private property; and
b. Patrimonial property of the state

Note: Patrimonial property of the state is the property it owns but which is not
devoted to public use, public service, or the development of national wealth. It is wealth
owned by the state in its private, as distinguished from its public, capacity (Paras,
2008).

Things not subject to prescription

1. Public domain;
2. Intransmissible rights;
3. Movables possessed through a crime; and
4. Registered land.
Rights not extinguished by prescription

1. Demand right of way;

2. Abate public /private nuisance;
3. Declare contract void;
4. Recover property subject to expressed trust;
5. Probate of a will; and
6. Quiet title.

2. Kinds of acquisitive prescription/3. Period of prescription

A. Acquisitive prescription/ Adverse Possession - It is the acquisition of ownership

and other real rights through possession of a thing in the manner and under the
conditions provided for by law.
a. Ordinary acquisitive prescription-
Requisites:
 1. Capacity to acquire by prescription;
2. The object must be susceptible of prescription;
3. The possession must be in the concept pf owner, public, peaceful, continuous
and uninterrupted;
4. possession in good faith;
5. with just title
6. possession must be for a period of 4 years if the object is movable or 10
years if the object is immovable;
b. Extraordinary acquisitive prescription-
1. Capacity to acquire by prescription;
2. The object must be susceptible of prescription
3. The possession must be in the concept pf owner, public, peaceful, continuous
and uninterrupted;
4. possession must be for a period of 8 years if the object is movable or 30
years if the object is immovable;as to the definition of good faith and Just title:
Good faith for purposes of prescription has two aspects. In positive aspect, it
consists in the reasonable belief that the person from whom the possessor received the
thing was the owner thereof, and could transmit his ownership. In its negative aspect, it
consists in the ignorance of the possessor of any flaw which would invalidate his title or
mode of acquisition.
For purposes of prescription, there is just title when the adverse claimant came
into possession of th property through one of the modes recognized by law for the
acquisition of ownership or other real right but the grantor was not the owner or could
not transmit any right. Its requisites are:
a. It must be just;
b. It must be true
c. It must be valid
d. It must be proved.

B. Extinctive Prescription.
Basis of extinctive prescription
It based on the probability, born of experience, that the alleged right which accrued in
the past never existed or has already been extinguished; or if it exists, the
inconvenience caused by the lapse of time should be borne by the party negligent in the
assertion of his right (Tolentino, Civil Code of the Philippines, Vol. IV, p. 2).
Requisites:
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by prescription;
3. Possession of the thing under certain conditions; and
4. Lapse of time provided by law.

Q: What are the periods as regards prescription of actions to recover movables

and immovables?
A:
1. Movables
a. 4 years ‐ If in good faith; and
b. 8 years ‐ If in bad faith (NCC, Art. 1140 in relation to Art. 1132).

2. Immovables
a. 10 years ‐ If in good faith
b. 30 years ‐ If in bad faith

INSTANCES WHEN PRESCRIPTION IS NOT ALLOWED

a. By the offender- When it is possessed through crime such as robbery,
theft, or estafa.

NOTE: The person who cannot invoke the right of prescription is the offender or
person who committed the crime or offense, not a subsequent transferee who did
not participate in the crime or offense, unless the latter knew the criminal nature
of the acquisition of the property by the transferor (NCC, Art. 1133, Pineda
Succession and Prescription, p. 651, 2009)

b. Registered Lands (P.D. 1529) -

1.. An action to recover a registered land by the owner; and
2. Right to petition for the issuance for the issuance of a Writ of Possession filed
by the applicant for registered land.

NOTE: Similarly, an action to recover possession of a registered land never

prescribes.
c. 1. Action legal to demand a right of way
2. To abate a nuisance

They are Imprescriptible

d. Action to quiet title if plaintiff in possession - Imprescriptible

e. Void contracts - Applies to both action and defense.

Note: However, an action to annul a voidable contract prescribes after four

years.
f. Action to demand partition -As long as the co‐ownership is recognized
expressly or impliedly (NCC, Art. 494).

g. Property of public dominion - Right of reversion or reconveyance to the State

of the public properties registered and which are not capable of private
appropriation or private acquisition does not prescribe.

NOTE: In contrast, where private property is taken by the Government for public
use without first acquiring title thereto either through expropriation or negotiated
sale , the owner’s action to recover the land or the value thereof does not
prescribe.

Prescription and laches cannot apply to registered land covered by the Torrens
system" because "under the Property Registration Decree, no title to registered
land in derogation to that of the registered owner shall be acquired by
prescription or adverse possession" (Jakosalem vs. Barangan, G.R. No. 175025,
February 15, 2012) (Del Castillo, J.)

How may the period of possession be interrupted?

a. Naturally when through any cause, the possession sha;; cease for more
than one year. If the natural interruption is only for one year r less, the time
elapsed shall be counted in favor of the prescription.
b. Civilly when there is a judicial summons to the possessor. However,
judicial summons shall be deemed not to have been issued and shall not
give rise to interruption:
1. If it should be void for lack of legal solemnities;
2. If the plaintiff should desist from the complaint or should allow the
proceeding to lapse ;and
3. If the possessor should be absolved from the complaint. In al of these
cases, the period of the interruption shall be counted for the
prescription.
c. Express or tacit recognition by the possessor of the owner’s right.

Q: What are the rules for the computation of time necessary for prescription?
A:
1. The present possessor may complete the period necessary for prescription by
tacking his possession to that of his grantor or predecessor in interest;

2. It is presumed that the present possessor who was also the possessor at a previous
time, has continued to be in possession during the intervening time, unless there is
proof to the contrary; and

3. The first day shall be excluded and the last day included (NCC, Art 1138).
Note: Possession in wartime, when the civil courts are not open, shall not be counted in
favor of the adverse claimant

PRESCRIPTION OR LIMITATION OF ACTIONS

ACTIONS PRESCRIPTIVE PERIOD

Recover Eight years (good faith)or Four years (bad faith)
Movables from the time the possession is lost (NCC, Art.
1140, Pineda Succession and Prescription, p. 666,
2009).
Recover 30 years (Recover ownership) (NCC, Art. 1141).
Immovables 10 years (Recover real right of possession) (NCC,
Art. 555(4); and Pineda Succession and
Prescription, p. 667, 2009).
Mortgage Action 10 years from default of mortgagor (NCC, Art.
1142).
Based on written 10 years
contract
Note: If contract
is oral or quasi,
prescriptive
period is six years
(NCC, Art. 1145)
Based on 10 years from the time the right of action accrue
obligation
created by law

Based on 10 years from the day judgment became final and

judgment executory (NCC, Art. 1144)
Based upon an Four years
injury to the
rights of plaintiff
Based on quasi‐ Four years (NCC, Art. 1146)
delicts
Forcible entry One year
and detainer
Defamation One year (NCC, Art. 1147)
All other actions Five years (NCC, Art. 1149)
not specified

Q: What are the grounds for interruption of prescriptive period?

A:
1. When they are filed before the court;
2. When there is a written extrajudicial demand by the creditors; or
3. When there is any written acknowledgment of the debt by the debtor (NCC, Art.
1155)

Prescription where possession in Good Faith is converted into possession in Bad

Faith.
If the possession in good faith is later converted in to bad faith the prescriptibve period
shall be computed in the following manner:

Movables – The period of ordinary period is four (4) years, while that of extraordinary
prescription is eight (8) years. Since the period of extraordinary prescription is two (2)
times longer than the ordinary prescription, the number of years in ordinary period will
be multiplied by 2 to get the period for extraordinary prescription.
Eg. If after two (2) years of possession in good faith of a movable property, the
possession was converted in bad faith. The 2 years would be equivalent to 4 years
possession in bad faith.

Immovable – The period for ordinary prescription in good faith is 10 years and 30 years
for extraordinary or in bad faith. Since the extraordinary prescription is three (3) times
longer than the ordinary prescription it shall be multiplied by 3. Eg. If after six (6) years
of possession in good faith of a real property, the possession was converted in bad
faith, the six (6) years of possession in good faith would be equivalent to 18 years
possession in bad faith.
PRESCRIPTION EXTINCTIVE
PRESCRIPTION
Applicabil Applicable to ownership Applicable to all kinds of rights,
ity and other real rights. whether real or personal.
Legal Expressly vests the Produces extinction of rights or bars
effect property and raised a a right of action.
new title in the Results in the loss of a real or
occupant. personal right or bars the cause of
The relationship action to enforce said right. One does
between the occupant not look to the act of the possessor
and he land in terms of but to the neglect of the owner.
possession is capable
of producing legal
consequences. It is the
possessor who is the
actor.
As to Possession of a Inaction by the owner or neglect of
requisite claimant who is not the one with a right to bring his action.
owner.
As a Can be proven under Should be affirmatively pleaded and
defense the general issue proved to bar the action or claim of
 without its being the adverse party.
affirmatively pleaded.

4. laches
CONCEPT: Laches (or “estoppel by laches”) is unreasonable delay in the bringing of a cause of
action before the courts of justice; it is failure or neglect, for an unreasonable and unexplained
length of time, to do that which, by exercising due diligence, could or should have been done
earlier; it is negligence or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled thereto either has abandoned it or declined to assert it.

AS TO CREATION: A creation of equity which, as such, is applied not really to penalize

neglect or sleeping upon one's right, but rather to avoid recognizing a right when to do so would
result in a clearly inequitable situation (Chavez v. Bonto-Perez, G.R. No. 109808, March 1,
1995).

AS A DEFENSE: Evidentiary in nature and cannot be established by mere allegations in the

pleadings. The party alleging laches must adduce in court evidence proving such allegation (Apo
v. Sps. Roberto, G.R. No. 198356, April 20, 2015).

● Requisites of Laches:
1. Conduct on the part of the defendant which gives rise to a claim;
2. Delay in asserting complainant’s rights (the complainant having
knowledge/opportunity to file suit);
3. Lack of knowledge/notice of the part of the defendant that the complainant would
assert a right; and
4. Injury or prejudice to the defendant in the event relief is accorded to the
complainant

Laches (or “estoppel by laches”) is unreasonable delay in the bringing of a cause of action before
the courts of justice. Thus, if an action prescribes say in ten (10) years, it should be brought to
court as soon as possible, without waiting for 8 or 9 years, unless the delay can be justifiably
explained (as when there is a search for evidence). Note therefore, that while an action has not
yet prescribed, it may no longer be brought to court because of laches. As defined by the
Supreme Court, “laches is failure or neglect, for an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could or should have been done earlier; it is
negligence or omission to assert a right within a reasonable time, warranting a presumption that
the party entitled thereto either has abandoned it or declined to assert it. However, courts will not
be bound by strictures of the statute of limitations or laches when manifest wrong or injuries
would result thereby.” (Cristobal v. Melchor, 78 SCRA 175).

PRESCRIPTION LACHES
Concept
One acquires ownership and other real
rights through the lapse of time in the
manner and under the action laid down
by law.
The failure or neglect, for an
unreasonable and unexplained length
of time, to do that which by exercising
due diligence could or should have
been done earlier; it is negligence or
omission to assert a right within a
reasonable time, warranting a
presumption that the party entitled to
assert it either has abandoned it or
declined to assert it. It applies even to
imprescriptible actions e.g. an action to
annul a void contract may be barred by
laches.

As to creation
Prescription is purely statutory in origin A creation of equity which, as such, is
and is founded on ground of public applied not really to penalize neglect or
policy. Time limit is imposed for a party sleeping upon one's right, but rather to
to enforce his claim so that title to avoid recognizing a right when to do so
property and other rights will be would result in a clearly inequitable
stabilized. It protects the person who is situation (Chavez v. Bonto-Perez, G.R.
diligent and vigilant in asserting his right, No. 109808, March 1, 1995).
and conversely punishes the person who
sleeps on his right (Fernandez v.
Cuerva, G.R. No. L-21114 November 28,
1967).
As a defense
GR: Evidentiary in nature and requires Evidentiary in nature and cannot be
full blown trial. established by mere allegations in the
XPNs: pleadings. The party alleging laches
1) When the plaintiff’s complaint on its must adduce in court evidence proving
face or the evidence he presented shows such allegation (Apo v. Sps. Roberto,
clearly that indeed the action has G.R. No. 198356, April 20, 2015).
prescribed at the time it was filed; or
2) If, before trial, a party has no means of
knowing that opponent’s claim has
already lapsed, prescription as a defense
may be pleaded later as soon as the true
nature of the claim is discovered (De
Leon, 2011).

The burden of proof rests on the part

claiming it. Failure to plead constitutes as
a waiver of defense and cannot be raised
for the first time on trial or appeal.