Otras herramientas analíticas utilizables por las metodologías de evaluación

A: It is an encumbrance imposed upon an

immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by virtue of which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate.

(Articles 613, 614)

Q: Differentiate easement from servitude. A:

Easement Servitude

An English law term Used in civil law countries Real Real or personal

The right enjoyed Burden imposed upon another

Q: What are characteristics of easement? A: (RAINCLEI)

1. A Real right but will affect third persons only when registered

2. Enjoyed over Another immovable never on one’s own property

3. Involves 2 neighboring Estates: the dominant estate to which the right belongs and the servient estate upon which an obligation rests.

4. Inseparable from the estate to which it is attached - cannot be alienated independently of the estate (Article 617)

5. Indivisible- not affected by the division of the estate between two or more persons

(Article 618)

6. A right limited by the Needs of the dominant owner or estate, without possession.

7. It Cannot consist in the doing of an act unless the act is accessory in relation to a real easement.

8. A Limitation on the servient owner’s rights of ownership.

Q: What do you mean by “easement established

only on immovable?”

A: The term “immovable” must be understood in its

common and not in its legal sense.

Q: Distinguish easement from usufruct. A:

Easement Usufruct

On real property Real or personal Limited to a particular or

specific use of the servient estate

Includes all uses and fruits Non-possessing right over an

immovable

Involves a right of possession in an immovable or movable Not extinguished by death of

dominant owner Extinguished by death of usufructuary Real right whether or not

registered Real right whether or not registered Transmissible Transmissible

Q: Distinguish easement from lease. A:

Easement Lease

Real right whether or not registered (whether real or personal)

Real right only when registered OR on real property, duration exceeds 1 yr

Only on real properties Real or personal There is limited right to the

use of real property of another but w/o right of possession

Limited right to both possession and use of another’s property

Q: What are the classifications of easements? A:

1. As to recipient of the benefit:

a) Real – easement is in favor of another immovable.

b) Personal – easement is in favor of a community, or of one or more persons to whom the encumbered estate does not belong.

2. As to source: a. Legal b. Voluntary c. Mixed

a. Legal – established by law for public use or for the interest of private persons. 1.Public Legal Easements – for public or communal use.

2.Private Legal Easements – for the interest of private persons or for private use.

i. Waters

(BWARDN)

1. natural drainage (Article 637) 2. drainage of buildings (Article 674)

CIVIL LAW NOTES ADVISER: ATTY. CARLA SANTAMARIA- SEÑA 3. easement on riparian banks for

navigation, floatage, fishing, salvage, and towpath (Article 638)

4. easement of a dam (Article 639, 647) 5. easement for drawing water or for

watering animals (Article 640-641) 6. easement of aqueduct (Articles 642-

636)

- the right to make the water flow thru or under intervening or lower estates

Q: What are the requisites? A:

1. owner of the dominant estate has the capacity to dispose of the water

2. water is sufficient for the use intended

3. proposed right of way is the most convenient and the least onerous to third persons 4. pay indemnity to the owner of the servient

estate (Article 643)

Q: How is the easement of aqueduct considered? A: For legal purpose, it 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. (Article 646)

ii. Right of Way

- right to demand that the owner of an estate surrounded by other estates be allowed to pass thru the neighboring estates after payment of proper indemnity.

Q: What are the requisites? A:

1. Claimant must be an owner of enclosed immovable or with real right

2. There must be no adequate outlet to a public highway

3. The right of way must be absolutely necessary not mere convenience

4. The isolation must not be due to the claimant’s own act

5. The easement must be established at the point least prejudicial to the servient estate

6. There must be payment of proper indemnity

Q: What does “least prejudicial” mean?

A: The shortest way and the one which will cause

the least damage.

Q: What if these 2 circumstances do not concur? A: The way which will cause the least damage

should be used even if it will not be the shortest.

Q: How much is the proper indemnity?

A: If the passage is continuous and permanent –

the indemnity consists of the value of the land occupied plus the amount of damages caused to the servient estate.

If temporary – indemnity consists in the payment of the damage caused

Q: How big should the easement be?

A: The width of the easement shall be that which is

sufficient for the needs of the dominant estate.

(Article 651)

Q: Can a dominant owner demand a driveway for

his automobile?

A: Yes, due to necessity of motor vehicles in the

present age.

Q: Who is responsible for repairs and taxes?

A: Dominant owner is liable for necessary repairs.

A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate. This applies only to permanent easements. (Article 654)

iii. 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; a kind of compulsory co- ownership

Q: Distinguish party wall from co-ownership. A:

Party Wall Co-ownerhsip

Shares of co-owners cannot be physically segregated but they can be physically identified

Can be divided physically; a co-owner cannot point to any definite portion of the property belonging to him No such limitation None of the co-owners may

use the community property for his exclusive benefit because he would be invading the rights of the others Any owner may free himself

from contributing to the cost of repairs and construction of a party wall by renouncing ALL his rights

Partial renunciation is allowed

Q: Who spends for the cost of repairs and

construction of party walls?

A: Part-owners shall contribute in proportion to their

respective interests.

Q: May an owner refuse to contribute?

A: GR: Yes, any owner may free himself by

renouncing his rights in the party wall.

XPN: When the party wall actually supports his

building. (Article 662)

Q: What if the owner of a building supported by a

party wall desires to demolish the building?

A: He may also renounce his part-ownership of the

wall. He shall bear expenses of repairs and work necessary to prevent any damage which demolition may cause to the party wall. (Article 663)

Q: May an owner increase the height of a party

wall?

A: Yes, provided:

1. He must do so at his own expense

2. He must pay for any damage caused even if it is temporary

3. He must bear the cost of maintaining the portion added

4. He must pay the increased cost of preservation of the wall (Article 664)

5. He shall be obliged to reconstruct the wall at his expense if necessary for the wall to

bear the increased height and if additional thickness is required, he shall provide the space therefore from his own land.

iv. Light & view

• Easement of light (jus luminum)

-The right to admit light from neighboring estate by virtue of the opening of a window or the making of certain openings.

• Easement of View (jus prospectus)

-The right to make openings or windows to enjoy the view thru the estate of another.

Q: What is the prescriptive period for acquisition of

easement of light and view?

A: 10 years.

Q: From when does the prescriptive period start to

run?

A: Reckoning period depends on where the

opening is made:

• If made on one’s own wall and the wall does not extend over the property of another – easement is negative.

Reason: the owner merely exercises his right of dominion and not of an easement. Negative easement is not automatically vested as formal prohibition is required. Period of prescription- starts from the time formal prohibition is made.

• If made thru a party wall or on one’s own wall which extends over the neighboring estate – easement is positive.

Reason: owner of the latter estate who has a right to close it up allows an encumbrance on his property.

Period of prescription – starts from the time the window is opened.

Q: How about with regard to openings at height of

ceiling joists?

A: The owner of a wall which is not a party wall may

make an opening to admit light and air, but not view subject to the ff:

1.The size must not be >30 centimeters 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

4.There must be wire screen

Q: What if a wall becomes a party wall?

A: A part-owner can order the closure of the

opening. No part-owner may make an opening thru a party wall without the consent of the others.

Q: Does non-observance of the distances provided

in Article 670 give rise to prescription?

A: No, this refers to a negative easement as the

window is thru a wall of the dominant estate.

Q: Define drainage of buildings

A: It is the right to divert the rain waters from one’s

own roof to the neighbor’s estate.

Q: What are the conditions for drainage of

buildings?

A: 1. No adequate outlet

2. Outlet must be at the point where egress is easiest and establishing a conduit for drainage

3. Proper indemnity

Q: Can there be a stipulation or testamentary

provision allowing excavations that could cause danger to an adjacent land or building?

A: No, the same shall be void. (Article 685)

Q: What should be done first before making an

excavation?

A: Any proprietor who intends to make any

excavation shall notify all owners of adjacent lands. b. Voluntary – established by the will of the owners.

Voluntary easements are governed by:

1. Title (in its existence) 2. Prescription

3. Civil Code (in default of the above) 3. As to its exercise:

a) Continuous Easements – the use of which are, or may be, incessant without the intervention of any act of man. Ex. right of aqueduct

b) Discontinuous Easements – used at intervals and depend upon the acts of man. Ex. right of way when it is physically impossible that man shall continually pass over the way.

4. As to whether or nor its existence is indicated: a) Apparent Easements – made known and are

continually kept in view by external signs that reveal the use and enjoyment of the same.It is not necessary that its sign be seen; as long as it may be seen or known on inspection. b) Non-apparent Easements – show no external

indication of their existence 5. As to the duty of the servient owner:

a) Positive – imposes upon the owner of the servient estate the obligation of allowing something to be done or doing it himself. Ex. 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. Ex. Easement of light and view where the owner is prohibited from obstructing the passage of light.

Q: What are the rights of the dominant owner? A: (ARME)

1. Exercise all the rights necessary for the use of the easement (Article 625)

2. Make on the servient estate all works necessary for the use and preservation of the servitude (Article 627 par. 1)

3. Renounce the easement if he desires to exempt from contributing necessary expenses (Article 628)

4. Ask for mandatory injunction to prevent impairment of his right. (Resolme v. Lazo, 27 Phil 416)

CIVIL LAW NOTES ADVISER: ATTY. CARLA SANTAMARIA- SEÑA

A:

1. He cannot alter the easement or render it more burdensome. (Article 627 par. 1) 2. He shall notify the servient owner of

works necessary for the use and preservation of the servitude. (Article 627

par. 2)

3. He must choose the most convenient time and manner in making the necessary works as to cause the least inconvenience to the servient owner.

4. He must contribute to the necessary expenses if there are several dominant estates in proportion to the benefits derived from the works (Article 628 par. 1)

Q: What are the rights of the servient owner? A: (RMC)

1. Retain the ownership of the portion of the estate on which easement is imposed 2. Make use of the easement (Article 628

par. 2), unless there is an agreement to the

contrary.

3. Change the place or manner of the use of the easement, provided it be equally convenient (Article 629, par. 2)

Q: What are the obligations of the servient owner? A: (IC)

1. He cannot impair the use of the easement.

2. Contribute to the necessary expenses

in case he uses the easement, unless otherwise agreed upon

(Article 628 par. 2) Q: How are easements acquired? A: (PARFT)

1. By title – All easements:

a. Continuous and apparent easements b. Continuous non-apparent easements

and discontinuous easements, whether apparent or non-apparent

2. By prescription of ten years – continuous and apparent easements.

3. By deed of recognition 4. By final judgment

5. By apparent sign established by the owner of the two adjoining estates

Q: How is the prescriptive period computed?

A: positive easement- the period is counted from

the day when the owner of the dominant estate begins to exercise it

Negative- from the day a notarial prohibition is made on the servient estate

Q: How are easements extinguished? A: (REMAINCREW)

Redemption agreed upon

2. Expiration of the term

or fulfillment of the resolutory condition

3. Merger of ownership

of the dominant and servient owner

Annulment of the title to the servitude Impossibility to use the easement Non-user : 10 years

7. Condition that the

easement cannot be used

8. Resolution of the

right of grantor to create the easement (as when the vendor a retro redeems the land)

Expropriation of the servient estate

10. Waiver by the

dominant owner gathered from positive acts

NUISANCE

In document medio ambiente y desarrollo (página 43-46)