Understanding

Easement or
Servitude and
“Right of Way”
IN A REAL ESTATE SETTING

By: Michael Silvero,REB, REA

 Ø It is an
encumbrance
imposed upon an
What is immovable for the
benefit of a
Easement community, or one
or or more persons, or
for the benefit of
Servitude? another immovable,
belonging to a
different owner.
ENCUMBRANCE
• An encumbrance is a claim against an asset by an entity that is not the owner.
Common types of encumbrances against real property include liens,
easements, leases, mortgages, or restrictive covenants. Encumbrances
impact the transferability and/or use of subjected properties.
• An encumbrance can restrict its free use until the encumbrance is lifted.
Note: A lien is a claim or legal right against assets that are usually used as collateral to satisfy a
debt.

IMMOVABLE PROPERTY
• Simply put, an asset that cannot be moved from one place to another is
immovable property. An immovable property has rights of ownership attached
to it.
• Land, buildings, roads and constructions of all kinds adhered to the soil. Trees,
plants and growing fruits, while they are attached to the land or form an integral
part of immovable property.
• In short, this is what we call as “REAL ESTATE”.
EXAMPLES of IMMOVABLE PROPERTIES:

Residential Commercial Industrial

Institutional Vacant Lots

What is Easement or
Servitude?
Ø Synonymous but “not the same”.

Ø It depends on the perspective of the person doing the

act or deed.

Ø The Easement is in the perspective of the person

“enjoying” the right.

Ø The Servitude is in the perspective of the person who

“allows” the right.
Easement or Servitude:
It is a real right or personal right,
constituted on the corporeal
immovable property of another, by
virtue of which the owner of the latter
has to refrain from doing or must
allow something to be done on his
property (servient estate), for the
benefit of another person or
tenement (dominant estate).
Terminologies:
• Encumbrance - is a claim against an asset by an entity that is not the
owner.

• Real right - refers to a right that is attached to a “thing” rather than a

person. Real rights include ownership, use, pledge, usufruct,
mortgage, habitation and predial servitude.

• Personal right - refers to a right that is attached to an “individual”

rather than a thing.

• Corporeal immovable property - the ownership of a thing that has

physical existence and is capable of being seen and touched and
can’t be moved (e.g. Land)

• “Servient Estate” - is the estate that allows the easement.

• “Dominant Estate” - is the one that benefits from the easement.

 Dominant and Servient Estates
Hmp! ‘Tong
Galingan mo unano na ‘to,
nga, kasi baka ang sarap
ako ay mabasa tadyakan!!!
ng ulan!!!
TWO TYPES OF EASEMENTS:
1. Easements Appurtenant
Ø easements that benefit another parcel of property.
Ø the dominant estate – your neighbor, for example – holds the right to
the land.
Ø examples of appurtenances are driveways, drainage ditches, fences,
and rights of way.
Ø Attached to a thing – “real right”.

2. Easements in Gross
Ø are easements that benefit a person.
Ø the users of the easement aren't estates, they're people like utility
companies or services.
Ø the owner of the easement owns the personal right to use the
easement but that right does not pass to future owners.
Ø Attached to a person or individual – “personal right”.
EASEMENT IN GROSS
o An easement that attaches a particular right to an
“individual” rather than to the property itself.

o The easement in gross is often considered

irrevocable for the life of the individual, but can be
revoked if the individual sells the property that
grants him or her that easement.

o For example, a homeowner may have an

easement in gross with a neighbor allowing the
homeowner to use a path through the neighbor’s
woods to reach the property. If the homeowner then
sells the property, he or she cannot pass the
easement in gross to the next property owner.
Take note:

o if an easement does not state the

specific type of easement that it is, then
it is presumed to be easements
appurtenant.
Note: Easement rights are governed by the Civil Code, particularly Articles 649
to 657.
RIGHT OF WAY
- The right granted to the owner of
an estate which is surrounded by
other estates belonging to other
persons and without an adequate
outlet to a public highway to demand
that he be allowed a passageway
throughout such neighboring estates
after payment of property indemnity.
“Requisites” for
Right of Way
1. Claimant must be an owner of enclosed
immovable or one with real right.
2. There must be no adequate outlet to a public
highway. Property indemnity - is
3. Right of way must be absolutely necessary. compensation for
4. Isolation must not be due to the claimant’s damages or loss. Payment
of indemnity does not
own act. mean owning right of way.
5. Easement must be established at the point The indemnity shall be
deemed to be in payment
least prejudicial to the servient estate. of rent for the use of the
6. Payment of property indemnity. easement.
Illustration: Yes!

ots
d L
pi e
c u Lot A
ts
Oc Lot B
Lo
Dominant Servient Estate i ed
Estate up
cc
Huh? O
Right of Way
Other illustrations:

A. B. Right of Way
Right of Way

C. D.
Ri
Right of Way gh
to
fW
ay
Thank you!