EASEMENTS OR

SERVITUDES
ARTICLE 613
An easement or servitude is an encumbrance imposed upon an immovable benefit of another
immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant state; that which
is subject thereto, the servient state.
 CHARACTERISTICS OF EASEMENTS

•It is a real right

•It involves immovable property
•There are different owners
•Inseparable from the estate to which it is attached
•It is indivisible even if the estates are divided
•There is no transfer of possession on a burden is
imposed
 ARTICLE 614
Servitudes may also be established for
the benefit of the community, or one or
more person to whom the encumbered
estate does not belong
Benefit of Benefit of
another another
person immovable

Easements
EASEMENTS FOR THE BENEFIT OF PERSON OR GROUP OF PERSONS
EASEMENTS FOR THE BENEFIT OF ANOTHER
IMMOVABLE PROPERTY
CHARACTERISTICS OF EASEMENT
1. A real right—action in rem is possible against the possessor of the servient estate
2. Imposable only on another’s property
3. It is a jus in re aliena—real right that may be alienated although the naked ownership is maintained
4. It is a limitation or encumbrance on the servient estate for another’s benefit
a. It is essential that there be benefit
b. It is not essential that the benefit be exercised
c. It is not essential for the benefit to be very great
d. The benefit shouldn’t be so great as to completely absorb or impair the usefulness of the servient estate,
for then, this would not be merely an encumbrance but the cancellation of the rights of the servient estate
e. The benefit or utility goes to the dominant estate
f. The exercise is naturally restricted by the needs of the dominant estate or of its owner
g. Easements being an abnormal restriction on the ownership are not presumed but may be imposed by law
5. There is inherence
6. It is indivisible
7. It is intransmissible
8. It is perpetual
THERE CAN BE NO EASEMENT
IMPOSED ON PERSONAL
PROPERTY; ONLY ON
IMMOVABLES MAY BE
BURDENED WITH EASEMENTS
WHICH INCLUDES LANDS,
BUILDINGS AND ROADS.
 Article 615

Easements may be continuous or discontinuous, apparent or non apparent.

Continuous easements are those the use of which is or may be incessant,
without the intervention of any act of man.
Discontinuous easements are those which are used at intervals and depend
upon the acts of man.
Apparent easements are those which are made known and are continually
kept in view by external signs that reveal the use and enjoyment of the same.
Non apparent easements are those which show no external indication of
their existence.
 Article 615

Easements are also positive or negative.

A positive easement is one which imposes upon the owner
of the servient estate the obligation of allowing something
to be done or of doing it himself,
and a negative easement, that which prohibits the owner
of the servient estate from doing something which he
could lawfully do if the easement did not exist.
 EASEMENTS FURTHER CLASSIFIED
ACCORDING TO PARTY GIVEN THE BENEFIT

REAL OR PREDIAL - for the benefit of another immovable belonging to a

different owner ( easement of water where lower estates are obliged to allow the
water naturally descending from upper estates to flow into them
PERSONAL – for the benefit of one or more person or of a community.
(easement for the right of way for the passage of certain goods)
ACCORDING TO PARTY GIVEN THE BENEFIT

CONTINUOUS – the use is incessant, or maybe incessant, without the

intervention of any act of man ( easement of drainage)

DISCONTINUOUS - used at intervals and depend on the acts of man ( use of

right of way – because the use will be only upon the setting of foot on the
property to traverse)
ACCORDING TO WHETHER OR NOT THEIR EXISTENCE IS INDICATED

APPARENT - those made known and continually kept in view by external signs
that reveal the use and enjoyment of the same ( an alley indicating the right of
way, window in a party wall)

NON-APPARENT – they show no external indication of their existence.

(easements on not building to more than a certain height, easements on
intermediate distance)
 ACCORDING TO THE PURPOSE OF THE EASEMENT OF THE NATURE OF
LIMITATION (Art. 616)

POSITIVE – here the owner of the servient estate is OBLIGED to allow

something to be done on his property or to do it himself (easement on the light
and view in a party wall; right of way, duty to cut of the tree branches extending
over the neighboring estates)

NEGATIVE – here the owner of the estate is PROHIBITED to do something

which he could lawfully do were it not for the existence of the easement (he could
have put a larger window in his wall but because of an easement on light and
view, he is prohibited)
ACCORDING TO THE RIGHT GIVEN

● RIGHT TO PARTIALLY USE THE SERVIENT STATE (right of way)

● RIGHT TO GET SPECIFIC MATERIALS OR OBJECTS FROM THE SERVIENT

STATE (easement of drawing water)

● RIGHT TO PARTICIPATE IN THE OWNERSHIP(easement of party wall)

● RIGHT TO IMPEDE OR PREVENT THE NEIGHBORING STATE FROM

PERFORMING SPECIFIC ACT OF OWNERSHIP (easement of intermediate
distances when the servient estate cannot plant trees without observing certain
distance)
ACCORDING TO THE SOUECE OR ORIGIN AND ESTABLISHEMENT OF THE
EASEMENT

VOLUNTARY – constituted by will or agreement of the parties or by the testator

MIXED - created party by agreement and partly by the law

LEGAL – those constituted by law for public use or private interest (waters; right
of way; drainage of buildings; light and view; intermediate distances; against
nuisances; lateral and adjacent support)
 Article 617

Easements are inseparable from the estate to which they

actively or passively belong.
- The word inseparable indicates that
independently of the immovable to which it was
attached, easements do not exist.
 CONSEQUENCES OF INSEPARABILITY
● Easements cannot be sold or donated or mortgaged independently of the real
property to which they may be attached.
● Registration of the dominant estate under the Torrens System without the
registration of the voluntary easements in its favor, does not extinguish the
easements, but registrations of the servient estate without the registration of
the easements burdening it extinguishes said voluntary easements. Actual
knowledge of third persons is equivalent to registration in that if they have
actual knowledge of the existence of easement, they are bound the same
even though there has been no registration.
PROVISION OF THE LAND REGISTRATION LAW

Easements shall continue to subsist and shall be held to pass with the title of
ownership until rescinded or extinguished BY VIRTUE OF THE REGISTRATION
OF THE SERVIENT STATE or in any other manner.

There can be NO EXTINGUISHMENT IF :

● the grantee or transferee of the servient estate actually knew of the existence
of the unrecorded easement
● There is an understanding or stipulation that the easement would continue to
exist
 Article 618
Easements are indivisible. If the servient estate is divided between two or
more persons, the easement is not modified, and each of them must bear it
on the part which corresponds to him. If it is the dominant estate that is
divided between two or more persons, each of them may use the easement
in its entirety, without changing the place of its use, or making it more
burdensome in any other way.

---Partition or division of an estate doesnt divide the easement, which continues to be complete in
that each of the dominant estates can exercise the whole easement over each of the servient estate
but only on the part corresponding to each of them
 Article 619
Easements are established either by law or by the will of the owners. The former
are called legal and the latter voluntary easements.

JUDICIAL EASEMENTS
When the court says that an easement exists, it is not creating one; it merely declares
the existence of an easement created either by law or by the parties or testator.
HOW EASEMENTS ARE ACQUIRED

1. If continuous and apparent

a. By title – does not necessarily mean document; it means a juridical act or law sufficient to
create an encumbrance. Ex: law, donation testamentary succession, contract.
b. By prescription—this requires 10 years irrespective of the good or bad faith, the presence
or absence of just title on the part of the possessor. Xpn: not applicable in cases of
prescription provided for by special or particular provisions
RULES:
● if the easement is positive, begin counting the period from the day that dominant estate
began to exercise it.
● if the easement is negative, begin at the time that NOTARIAL PROHIBITION was made on the
SERVIENT estate. This Notarial prohibition shall be done by the dominant estate through its
owner or those who desires to establish an easement.
WONDERING WHY NEGATIVE EASEMENTS CAN BE ACQUIRED BY PRESCRIPTION DESPITE
THAT THEY ARE NON APPARENT?

In General , Negative Easements cannot be acquired by prescription since they are

non – apparent, but because of NOTARIAL PROHIBITION, the non – apparent
becomes apparent and existing.

A and B are neighbors. A opened a window on his building beneath the ceiling joists
to admit light in 2002. Even after 10 years, B may still obstruct the light by
constructing on his own lot a building higher than A that will make the light
impossible to pass, unless A makes a NOTARIAL PROHIBITION prohibiting B to
make an obstruction. If in 2002, A makes a Notarial Prohibition, will B still make an
obstruction in 2009?
YES, because it is only in 2012 that it will prescribed. B cannot anymore obstruct A
HOW EASEMENTS ARE ACQUIRED cont.

2. If discontinuous and apparent—only by title because the

possession is not UNINTERRUPTED
3. If continuous and non-apparent—only by title because
they are not public
4. If discontinuous and non-apparent—only by title because
the possession is neither public nor uninterrupted.
Art. 622. Continuous non-apparent easements, and discontinuous ones,
whether apparent or not, may be acquired only by virtue of a title.
 Article 623

The absence of a document or proof showing the origin of an

easement which cannot be acquired by prescription may be cured
by a deed of recognition by the owner of the servient estate or by a
final judgment.
APPLICABILITY OF ARTICLE
1. Continuous non-apparent
2. Discontinuous easements
HOW PROOF MAY BE GIVEN OF THE EXISTENCE OF THE
EASEMENTS
1. By deed of recognition by the servient owner
2. Final judgment
 Article 624

The existence of an apparent sign of easement between two estates,

established or maintained by the owner of both, shall be considered,
should either of them be alienated, as a title in order that the easement
may continue actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in the title of
conveyance of either of them, or the sign aforesaid should be removed
before the execution of the deed. This provision shall also apply in case of
the division of a thing owned in common by two or more persons
APPARENT SIGNS OF EASEMENT THAT APPARENTLY EXISTS
1. Originally no true easement exists here because there is only one owner
2. The article speaks of apparent visible easements
3. Outward indication
4. It is not essential that there be apparent sign between the two estates; it is important that there is an apparent sign that the
easement exists between the two estates
N.B: Immaterial period of counting prescription.
RULES
1. Before the alienation, there is no true easement
2. After alienation
a. There arises an easement if the sign continues to remain there unless there is a contrary agreement
b. There is no easement if the sign is removed or if there is an agreement to this effect
APPLICABILITY OF ARTICLE
1. Whether only one or both estates is alienated
2. Even if there be only one estate but there are two portions thereof, as long as later on there is a division of the ownership of the said
portion
3. Even in the case of division of common property, though this is not an alienation
WHEN ARTICLE DOESN’T APPLY
 Doesn’t apply in case both estates or both portions are alienated to the same owner, for then there would be no true easement
unless there is a further alienation, this time, to different owners
Article 625
Upon the establishment of an easement, all the rights necessary for its use are considered
granted.

GRANT OF NECESSARY RIGHTS FOR THE USE OF THE EASEMENT

1. Unless the necessary rights are also granted, the right to the easement itself is rendered nugatory
2. Necessary rights include repair, maintenance, accessory easements, such as the right of way if the
easement is for the
drawing of water
3. Termination of the principal easement necessarily ends all the secondary or accessory easements
 Article 626.
The owner of the dominant estate cannot use the easement except for the benefit
of the immovable originally
contemplated. Neither can he exercise the easement in any other manner than that
previously established.

MICHELLE ANNE RAMIREZ - VICENTE