EASEMENTS IN GENERAL
SECTION ONE – DIFFERENT KINDS OF EASEMENTS
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530)
Easement or servitude defined
Easement or servitude has been defined as a “real right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.”
The definition in this article is not complete, being limited to real easement.
In view of the next article which refers to personal easement, the term may be defined as 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 (whew.)
Easement and servitude distinguished
1. It is said that easement refers to the right enjoyed by one, and servitude, the burden imposed upon another.
2. The two terms are used synonymously in the Civil Code although it is more partial to easement.
Characteristics of easement
1. It is a real right but will affect third persons only when duly registered; 2. It is enjoyed over another immovable, never on one’s own property; 3. It involves two neighboring estates, the dominant to which a right
belongs and the servient upon which an obligation rests;
4. It is inseparable from the estate to which it is attached and, therefore, cannot be alienated independently of the estate (Art 617)
5. It is indivisible for it is not affected by the division of the estate between two or more persons (Art 618)
6. It is a right limited by the needs of the dominant owner or estate, without possession;
7. It cannot consist in the doing of an act unless the act is accessory in relation to a real easement; and
8. It is a limitation on the servient owner’s rights of ownership for the benefit of the dominant owner; and therefore, it is not presumed.
Easement gives the holder an incorporeal right on the land but grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the property belongs to another.
Easement established only on immovable
Easements cannot be imposed on personal property but only on immovable (which must be understood in its common and not in its legal sense).
What the law treats of are not immovables as defined by the Civil Code but only those which are so by their nature (are really incapable of being moved) such as lands, roads, buildings, and constructions adhering to the soil.
Nature of benefit to dominant estate
Easement can exist only when the servient and dominant estates belong to different owners.
There can be no easement without a burden on an estate for the benefit of another immovable belonging to a different owner or of a person or group of persons.
The dominant estate cannot be the servient estate at the same time.
It is not essential that the benefit be very great, it being sufficient that there is a determinate use or utility in favor of a dominant estate over an estate belonging to another.
The important thing is that it exists and can be exercised.
On the other hand, the benefit should not be so great as to be
inconsistent with the general right of ownership of a person, amounting to a taking of his property.
Easement Lease
Real right, whether registered or not,
and whether it is real or personal Real right only when it is registered, or when its subject is real property and the duration exceeds one year Imposed only on real property May involve real or personal property Limited right to the use of real
property of another but without the right of possession (“without any exclusive possession or occupation”)
Limited right to both the possession and use of another’s property (“exclusive possession”)
Easement Usufruct
Imposed only on real property May involve real or personal
property Limited to a particular or specific use
of the servient estate
Includes all the uses and fruits of the property
Non-possessory right over an immovable
Right of possession in an immovable or movable
Not extinguished by the death of the dominant owner
As a rule, extinguished by the death of the usufructuary
Both usufruct and easement are real rights, whether registered or not, and are transmissible.
Case doctrines
The power of eminent omain encompasses not only the taking of title to and possession of the expropriated property but likewise covers even the imposition of a mere burden upon the owner of the condemned property. Where the nature of the easement practically deprives the owners of the property’s normal beneficial use, notwithstanding the fact that the expropriator only occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full compensation for land. (NPC v Ibrahim)
Art. 614. 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. (531)
Classifications of easement 1. As to recipient of benefit
a. Real – when the easement is in favor of another immovable (Art 613); or
b. Personal – when it is in favor of a community or of one more persons (Art 614). Thus, it maybe public or private. 2. As to its source
a. Voluntary – when the easement is established by the will or agreement of the parties or by a testator (Art 619); b. Legal – when it is imposed by law either for public use or
in the interest of private persons (Art 637-687); or
c. Mixed – when it is created partly by will or agreement and partly by law.
3. As to its exercise
a. Continuous – see Article 615; or b. Discontinuous
4. As to whether or not its existence is indicated a. Apparent; or
b. Non-apparent
5. As to the duty of servient owner
a. Positive – see Article 616; or
b. negative
Real and personal servitudes
A servitude may be established for the benefit:
1. of a particular estate and consequently, for its owner; (real or
predial)
2. of a person or group of persons without being the owner or owners of a dominant estate. (personal)
Unlike a real easement, personal easement does not require two immovables. An example of a personal easement is a right of way granted to certain persons and their family, friends, servants, and jeeps. The servitude is for the benefit alone of the persons enumerated and not a predial servitude that inures to the benefit of whoever owns the dominant estate. Hence, the owner of the servient estate may refuse to
extend the said easement to the successors-in-interest of the persons for whose benefit the servitude exists. (Jabonete v Monteverde) Public and private easements
Personal easements may be:
1. Public, if it is vested in the public at large or in some class of indeterminate individuals (like the right of the public to a highway over a land of private ownership)
2. Private, if it is vested in a determinate individual or certain persons (like a right of way vested in the owner of one parcel of land over an adjoining parcel of land)
Case doctrines
When a person is allowed to construct his house on the land of another to facilitate his gathering of fruits, this would be in the nature of a personal easement under Article 614. (Alcantara v Reta)
Art. 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.
Nonapparent easements are those which show no external indication of their existence. (532)
Continuous and discontinuous easements
For an easement to be continuous, it is not necessary that the use be incessant; it is sufficient that the use may be so.
o Examples are the right to support a beam on another’s wall which really exists continuously and the right of aqueduct which may be used only on certain days depending on the need for water but which is continuous since its use does not depend upon the intervention of man.
An example of discontinuous servitude is the right of way which is used at intervals because it is physically impossible that man shall continually poass over the way.
The easement itself, whether continuous or discontinuous, exists continuously whether it is being used or not, but its exercise may be continuous or discontinuous, or there may be no exercise at all.
The distinction lies in the fact that in continuous easements, the exercise or enjoyment can be had without the intervention of man while in discontinuous easements, such exercise or enjoyment requires the intervention of man.
In both easements, the benefit and burden exists from the moment the easements are created.
Case doctrine
Easements are either continuous or discontinuous according to the manner they are exercisd, not according to the presence of apparent signs or physical indications of the existence of such easements. Thus, an easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way. (Bogo-Medellin v CA)
Apparent and non-apparent easements
For an apparent easement, it is not necessary that its sign be seen; it is sufficient if it may be seen or known on inspection.
o The sign or signs may be encountered in the dominant or servient estate, according to the circumstances.
An example of a non-apparent easement is a right of way when there is no indication of its existence.
A right of way is apparent when there is a visible road or path to show its exercise.
In general, negative easements are non-apparent.
Art. 616. 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. (533)
Positive and negative easements
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.
o Example: the easement of which the right of way which imposes upon the owner of the servient estate the duty to allow the use of said way.
A negative easement is that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.
o Example: easement of light and view whereby the owner of the servient estate is prohibited from obstructing the passage of light. It may also be positive depending upon the manner by which it is exercised.
When the opening or window is made on another’s wall (wall of servient estate) or on a party wall, the easement acquired is positive because the owner of the wall allows the servitude to burden his wall.
If the window is through one’s own wall (wall of the dominant estate) which does not extend over another’s property (servient estate), the easement is negative.
Case doctrines
Restrictive covenants are not, strictly speaking synonymous with easements, but a case of servitudes or burdens, sometimes characterized to be negative easements or reciprocal negative
easements. Negative easement is the most common easement created by covenant or agreement whose effect is to preclude the owner of the land from doing an act, which, if no easement existed, he would be entitled to do. (Fajardo v Freedom to Build)
Courts generally view restrictive covenants with disfavor, but still sustain them where the covenants are reasonable, not contrary to law, or not in restraint of trade. If the covenant aims to promote aesthetics, health, and privacy or to prevent overcrowding, then the covenant must be sustained.
A suit for equitable enforcement of a restrictive covenant can only be made by one for whose benefit it is intended. It is thus not normally enforceable by one who has no right nor interest in the land for the benefit of which the restriction has been imposed. Thus, developer of a subdivision can enforce restrictions, even as against remote grantees of lots, only if he retains part of the land. (Fajardo v Freedom)
Art. 617. Easements are inseparable from the estate to which they actively or passively belong. (534)
Quality of inherence or inseparability
Servitudes are inseparable from the estate to which they actively or passively belong, being accessory things whose very existence depends upon the principal thing (immovable).
Hence, they are intransmissible in the sense that they cannot be alienated or mortgaged independently of the estate.
An easement cannot be the object of usufruct because it has no existence independent of the immovable to which it attaches.
If the dominant estate is alienated, such alienation carries with it also the easements established in its favor even if they are not annotated as an encumbrance on the certificate of title.
An easement is extinguished or cut-off, however, by the registration of the servient estate under the Torrens system without the easement being annotated on the corresponding certificate of title. A registered owner or subsequent purchaser of registered land holds his certificate of title free from all encumbrances except only those noted in said certificate and the statutory liens.
o But if the existence of an easement was known to the
transferee or grantee of the servient estate, such knowledge is equivalent to registration.
Case doctrines
A vendee on real property on which a servitude or an easement of right of way exists does not acquire the right to close that servitude to prevent the neighboring estates from using it. (Solid Manila v Bio Hong)
Art. 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. (535)
Quality of indivisibility
Easement as a right is indivisible.
Accordingly, the partition between two or more persons of either the servient or dominant estate does not affect the existence of the servitude which continues in its entirety.
If the servient estate is divided, each new owner must bear the easement but only with respect to the part corresponding to him.
If the dominant estate is divided, each owner can exercise the whole easement over each of the servient estates subject to the condition that the place of easement shall not be changed and the easement shall not be more burdensome.
o A person entitled to a right of way may do whatever is necessary to make it convenient for his use but he cannot deviate therefrom. The easement is not considered made more burdensome by the mere increase in the owners of the dominant estates.
Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. (536)
Legal and voluntary easements
This article gives the two kinds of easements according to source.
The courts cannot impose or constitute any servitude where none existed.
They can only declare its existence if in reality it exists by law or by the will of the owners.
There are no judicial easements.
Voluntary easements must be recorded in the Registry of Property in order not to prejudice third persons.