Easements and Usufructs

Easements
What is An easement?
Who are involved?
WHEN does it arise?
HOW is it extinguished?
Why the need for an easement?
1
Easements WHAT WHY
WHO WHEN HOW
in general
2
Legal WHAT WHY
WHO WHEN HOW
Easements
3
waters WHAT WHO WHEN HOW WHY
4
Light and WHAT WHY
WHO WHEN HOW
view
5
Right of way WHAT WHO WHEN HOW WHY
6
Party wall WHAT WHO WHEN HOW WHY
7
drainage WHAT WHO WHEN HOW WHY
8
Intermediate WHAT WHY
WHO WHEN HOW
distances
9
n uisance WHAT WHO WHEN HOW WHY
10
Lateral and WHAT WHY
WHO WHEN HOW
subjacent
11
Voluntary WHAT WHO WHEN HOW WHY
easements
1 Easements in general
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.
“Art 613. An easement or servitude” Is there a difference?
Easement: right enjoyed

Servitude: burden imposed
(nolledo)
characteristics
JHEMERLYN
1. It is a real right
PUBLIC HIGHWAY
2. Imposed only on the property of
JONABELLE
another; never on one’s own property
3. Produces a limitation on ownership ROAD
4. Inseparable from attached tenements
5. Can only exist between neighboring JHEPOY
tenements
Two parties
JHEMERLYN
1. Dominant estate – the one who
PUBLIC HIGHWAY
benefits from the easement (jhepoy)
JONABELLE
2. Servient estate – the one where the
easement is built (Jhemerlyn) ROAD
JHEPOY
Dominant estate demands: Either refrain from doing something or permit
something be done over the servient property
JHEMERLYN jhizelle
PUBLIC HIGHWAY
jhumar
JONABELLE
ROAD
JHEPOY
General rules
1. Nulli res sua servit - No one can have a servitude over his own
property
2. Servitus in faciendo consistere nequit - A servitude cannot consist
in doing
3. Servitus servitutes esse non potest - There cannot be a servitude
over another servitude
4. Exercised Civiliter
5. Must have a perpetual cause
CLASSIFICATION OF EASEMENTS
REAL
AS TO RECEIPIENT OF BENEFITS AS TO ITS EXERCISE
PERSONAL
LEGAL
AS TO CAUSE OR ORIGIN VOLUNTARY CONTINUOUS DISCONTINUOUS
MIXED
CLASSIFICATION OF EASEMENTS
AS TO OBLIGATIONS IMPOSED AS TO WHETHER THEIR EXISTENCE IS INDICATED
pOSITIVE NEGATIVE APPARENT NONAPPARENT

Requisites of Apparent Easements
Apparent Sign of
1 Easement The two estates were separately
3 sold to or acquired by two
Sign is between two different persons
2 estates owned by only
one person
Modes of acquiring easements

1. Acquisition by title
2. Acquisition by prescription
Is the easement continuous or discontinuous?
Continuous Discontinuous
Is it apparent or not apparent?
Not Apparent Apparent
ACQUISITION BY PRESCRIPTION ACQUISITION BY TITLE
DON MANUEL FEDERICO Sebastian mateo ESTEBAN

JOSE ATONIO Y ALONZO REALONDA
whelyam
jheyshawn
Whelyam
jheyshawn
Whelyam
NO.
jheyshawn
Whelyam
Unless…
.
3 meters
jheyshawn
Whelyam
Sad.
jheyshawn
Whelyam
No formal
agreement.
jheyshawn
Whelyam
jheyshawn
Supreme Court
Tama si
whelyam,
g*go..
Whelyam
jheyshawn
Supreme Court
Whelyam
APPARENT SIGN
jheyshawn
Apparent sign of easement
shall continue unless
stipulated or the said sign
is removed before execution
of deed of transfer. Supreme Court
Whelyam
3 meters
jheyshawn
Gargantos v Tan Yanon, 108 Phil 888

SEE: Amor v Florentino 74 Phil 403
Rights of DOM Rights of SUB SERV
• Right to use the servitudes • Right to change the servitude if it
• Make any necessary works on the becomes very inconvenient to him
servient estate for the use and • Right to retain ownership of the
preservation of the servitude potion on which the easement is
• Right to ask for the destruction of established
works if the servient tenement • Right to use the servitude in a
performs acts or constructs manner as not to affect the
impairing the use of the easements exercise of the easement
obligations of DOM obligations of SUB SERV
• To notify the owner of the servient • If he has to change the servitude,
estate if he is going to make any he has to pay for the expenses
workings • Likewise, he is obliged to offer
• To pay for the expenses of the another place or manner equally
workings convenient
• To restore the things to their
original condition if owner
violates restrictions
limitations of DOM limitations of SUB SERV
• Cannot use the easement except for • Cannot impair the use of the
the benefit of the immovable servitude
contemplated
• Cannot exercise the easement in
any other manner (XPN: does not
make the easement more burdensome)
• Works must be executed in the
manner least inconvenient to the
servient owner
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
JHEMERLYN
PUBLIC HIGHWAY
JONABELLE JHEPOY
JHEMERLYN
PUBLIC HIGHWAY
JONABELLE JHEPOY
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
EXTINGUISHMENT OF EASEMENTS
MERGER
NON-USER FOR TEN YEARS
IMPOSSIBILITY OF USE
EXPIRATION OF THE TERM OR FULFILLMENT OF RESOLUTORY
CONDITION
Renunciation of the dom
redemption
MERGER
• MUST BE ABSOLUTE, PERFECT AND DEFINITE
• NEED NOT BE THE ENTIRE TENAMENT
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
JHEPOY
PUBLIC HIGHWAY
ROAD
JONABELLE
JHEPOY
PUBLIC HIGHWAY
?
ROAD
JONABELLE JONABELLE
NON-USER FOR TEN YEARS

• IN USE BUT LATER ABANDONED
• “Presumptive renunciation”
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
JHEMERLYN JHUMAR
PUBLIC HIGHWAY
PUBLIC HIGHWAY
JONABELLE
ROAD ROAD
JHEPOY
JHEMERLYN JHUMAR
PUBLIC HIGHWAY
PUBLIC HIGHWAY
JONABELLE
ROAD ROAD
JHEPOY
IMPOSSIBILITY OF USE
• If arises from condition of the tenements, only
suspends the servitude.
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
JHEMERLYN
PUBLIC HIGHWAY
ROAD
JONABELLE JHEPOY
USUFRUCT EASEMENTS
Includes all uses of the
AS TO SCOPE Limited to a specific use
property and for all purposes
May be on immovable or
AS TO TYPE OF PROPERTY Only on an immovable
immovable
Contemplates only one
AS TO NUMBER OF PROPERTIES Contemplates two estates
property
USUFRUCT EASEMENTS
May be alienated separately Cannot be alienated
AS TO ABILITY TO ALIENATE
from the property separately from the property
Easements are not
Usufructs are extinguished by
AS TO DEATH AS MODE OF extinguished by the death of
the death of the usufructuary
EXTINGUISHMENT the owner of the dominant
unless otherwise stipulated
estate
2 Legal Easements
3 waters
Natural drainage of waters Art 637
• Art. 637. Lower estates (servient estate) are obliged to receive the waters
which naturally and without the intervention of man descend from the
higher estates (dominant estate), 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.
3 waters
• Prescribes by non-user for 10-years
• This is a natural servitude and exists only with regard to waters which
form in upper tenements and flow to the lower tenements by force of nature
and not by those caused by acts of man
• Lower estates are obliged to receive: water which naturally and without
the intervention of man descends from the higher estates AND the stones and
earth carried by the waters. If not natural, the owner of the lower estate
shall be entitled to compensation for loss or damage.
3 waters
• SE owner can’t construct works that would impede the easement
• SE may construct a DAM but NOT on the boundary. And then he has to
conduct it out.
• DE owner can’t make works which will increase the burden. Thus, he can’t
collect water, nor increase the velocity of the descent by making the
ground more impervious or less absorbent. But he may construct works
preventing erosion.
3 waters
• Owner of SE can’t suppress the servitude in order to transfer water to the
land of another. Even if the DE has done something to make the servitude
more burdensome, SE has no right to raise a dam to prevent natural
drainage
• Since owner of lower tenement is merely obliged to receive waters as they
flow, they can’t be obliged to clear obstructions caused by accumulated
dirt, stones etc, but he must allow the DE to make the works necessary on
the lower tenements so that water may flow.
3 waters
• Artificial obstructions may be removed, and damages may be recovered by DE.
• Owners of 2 tenements may make such agreements they deem convenient to
modify or extinguish the servitude provided they do not increase the burden
of other tenements.
• Rain water from roofs of buildings and water from houses cant be made to
fall directly on lower tenements. They must be received on one’s own land.
3 waters
• It is the duty of the owner of the building to direct the rainwater to a
public place or to establish an easement of passage of water through a
neighboring tenement. He can’t just allow water to run down lower to the
prejudice of their owners.
3 waters
Art 637 of CC v Art 50 of WaterCode
• The prohibition against impeding the natural flow of water is NOT absolute. The owner
of the lower estate can do so provided he allows for an alternative method of drainage.
3 waters
Art. 637 Art. 50
Lower estates are obliged to receive the waters Lower estates are obliged to receive the waters
which naturally and without the intervention of which naturally and without the intervention of
man descend from the higher estates, as well as man flow from the higher estates, as well as the
the stones or earth which they carry with them. stone or earth which they carry with them. The
The owner of the lower estate cannot construct owner of the lower estate can not construct
works which will impede this easement; neither works which will impede this natural flow, unless
can the owner of the higher estate make works he provides an alternative method of drainage;
which will increase the burden. neither can the owner of the higher estate make
works which will increase this natural flow.
3 waters
Easements on lands along riverbanks Art 638
• Art. 638. The banks of rivers and streams, even in case they are of private
ownership, are subject throughout their entire length and within a zone of
three meters along their margins, to the easement of public use in the
general interest of navigation, floatage, fishing and salvage. Estates
adjoining the banks of navigable or floatable rivers are furthermore,
subject to the easement of tow path for the exclusive service of river
navigation and floatage. If it be necessary for such purpose to occupy
lands of private ownership, the proper indemnity shall first be paid.
3 waters
• This is an easement on riparian property, banks of rivers and streams
• River bank: a lateral strip of shore washed by the water during high tides
but which cannot be said to be flooded or inundated
3 waters
• For banks on rivers (whether it be private/public, navigable or not), a
public easement for: navigation, floatage, fishing, salvage is allowed.
• For banks of navigable or floatable rivers, also the easement of tow
path—for the exclusive service of river navigation and floatage
3 waters
• If land is of public ownership—no indemnity
• If land is of private ownership—with indemnity
3 waters
• Width of zone burdened 3 meters along the river margins for navigation,
floatage, fishing, salvage
• Tow path— 2 meters for animals, 1 meter for pedestrians
3 waters
Abutment of a dam (639)
• Art. 639. Whenever for the diversion or taking of water from a river or
brook, or for the use of any other continuous or discontinuous stream, it
should be necessary to build a dam, and the person who is to construct it is
not the owner of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment of the proper
indemnity
3 waters
• Non- owner builder of the dam pay owner of land for the abutment of the
land
• Abutment: part of the dam that extends to the riverbank or dam
• If no easement previously established, and the dam floods the land—
injured owner or his representative can remove it as a private nuisance.
3 waters
Aqueduct (642-646)
• Art. 642. Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the
intervening estates, with the obligation to indemnify their owners, as well
as the owners of the lower estates upon which the waters may filter or
descend.
3 waters
• Art. 643. One desiring to make use of the right granted in the preceding
article is obliged:
• (1) To prove that he can dispose of the water and that it is sufficient for
the use for which it is intended;
• (2) To show that the proposed right of way is the most convenient and the
least onerous to third persons;
• (3) To indemnify the owner of the servient estate in the manner determined
by the laws and regulations.
3 waters
• Art. 644. The easement of aqueduct for private interest cannot be imposed on
buildings, courtyards, annexes, or out houses, or on orchards or gardens
already existing.
3 waters
• Art. 645. 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 latter any damage, or render
necessary repairs and cleanings impossible.
3 waters
• Art. 646. For legal purposes, the easement for aqueduct shall be considered
as continuous and apparent, even though the flow of the 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.
3 waters
• Right to make water flow thru intervening estates so that one may make
use of said waters
• The existence of an easement of right of way does not necessarily include
the easement of aqueduct
• Requisites:
3 waters
• Indemnity: depends on duration and inconvenience caused
• If for private interests, the easement cannot be imposed on EXISTING buildings,
courtyards, annexes, out-houses, orchards, or gardens
• There must be proof:
1. That he can dispose of the water;
2. That the water is sufficient for the use intended;
3. That the proposed course is the most convenient and least onerous to third persons and the
SE (not necessarily shortest distance);
4. Proper administrative permission be obtained
3 waters
• Possible ways of making effective the easement: by constructing an open canal,
or a covered or closed canal, or of tubes or pipes
• DE owner must keep the aqueduct in proper use or care
• DE owner must keep on hand necessary materials for its use
• SE owner may still enclose or fence the SE, or even build over the aqueduct so
long as no damage is caused, or repairs and cleanings become impossible
• For legal purposes, it is considered continuous and apparent, thus susceptible of
acquisitive prescription
3 waters
Drawing waters and watering animals (640)
• Art. 640. Compulsory easements for drawing water or for watering animals
can be imposed only for reasons of public use in favor of a town or village,
after payment of the proper indemnity
3 waters
• Art. 641. Easements for drawing water and for watering animals carry with
them the obligation of the owners of the servient estates to allow passage
to persons and animals to the place where such easements are to be used,
and the indemnity shall include this service.
3 waters
• Art. 657. Easements of the right of way for the passage of livestock known as animal
path, animal trail or any other, and those for watering places, resting places and
animal folds, shall be governed by the ordinances and regulations relating thereto,
and, in the absence thereof, by the usages and customs of the place.
• Without prejudice to rights legally acquired, the animal path shall not exceed in any
case the width of 75 meters, and the animal trail that of 37 meters and 50
centimeters.
• Whenever it is necessary to establish a compulsory easement of the right of way or for
a watering place for animals, the provisions of this Section and those of Articles 640
and 641 shall be observed. In this case the width shall not exceed 10 meters.
3 waters
• Can be imposed only for reasons of public use
• They must be in favor of a town or village
• Proper indemnity must first be paid
3 waters
• Without prejudice to rights legally acquired, the animal path shall not
exceed in any case 75m and the animal trail that of 37m and 50cm (Art
657)
• There is an accessory easement here combined with the easement of drawing
waters, whenever necessary: easement of right of way (max. width of 10m,
which cant be altered by the owners of the SE although the direction of the
path may indeed be changed, provided that the use of the easement is not
prejudiced)
3 gate
Stop lock or sluice (647)
waters
• 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.
3 waters
• Requisites
• Purpose must be for irrigation or improvement
• Construction must be on the estate of another
• Damages must be paid
• Third persons should not be prejudiced
4 light and view
• 2 kinds of easements: light (“jus luminum”) and view (“servidumbre
prospectus”)
• Easement of Light- right to make openings (over 1 ft2) to receive light from
another’s tenement; the openings do not allot the head to pass and
lookout.
• Easement of View- right to open the windows to enjoy the view and to bar
the servient owner from blocking the view; includes the easement of light
and servitude of altius non tollendi (not to build higher)
4 light and view
• Cannot make an opening on party wall without consent of other co-owner
• Easement is positive if the window is thru a party wall. Thus the period of
prescription commences from the time the window is opened.
• Easement is negative if thru one’s own wall, that is, thru wall of the DE.
Thus, the time for prescription commences from the time of notarial
prohibition upon the adjoining owner.
4 light and view
• Art. 667. No part-owner may, without the consent of the others, open
through the party wall any window or aperture of any kind.
4 light and view
• Art. 668. The period of prescription for the acquisition of an easement of
light and view shall be counted:
1. From the time of the opening of the window, if it is through a party
wall; or
2. From the time of the formal prohibition upon the proprietor of the
adjoining land or tenement, if the window is through a wall on the dominant
estate.
4 light and view
Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not a
party wall, adjoining a tenement or piece of land belonging to another, can make in it openings
to admit light at the height of the ceiling joists or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall
and with a wire screen.
Nevertheless, 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.
4 light and view
• Openings or windows referred to in Art 669 are for LIGHT, not view.
Hence, the conditions set for them:
• Max size:30 cm square (Paras calls them “restricted windows”)
• There must be an iron grating imbedded in the wall.
• There must be a wire screen.
• The opening must be at the height of the ceiling joists or immediately
under the ceiling
4 light and view
• 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
4 light and view
• Art 670 is observed, bigger windows may be made without the restrictions
above
4 light and view
• Art. 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 views from the dividing line between the two properties.
4 light and view
• Rules when Art 670 and 671 are observed:
• These deal with regular, full windows. They can be opened provided that the proper
distances are followed. (Paras calls them “regular windows”)
• Proper distances:
• For windows having DIRECT (face to face) views: at least 2m b/w wall having windows and the
boundary line
• For windows having SIDE or OBLIQUE views: at least 60 cm b/w the boundary line and nearest
edge of window
• It is permissible to build even up to the boundary line provided that NO regular windows
are opened (only restricted windows are allowed)
4 light and view
• Art. 672. The provisions of Article 670 are not applicable to buildings
separated by a public way or alley, which is not less than three meters
wide, subject to special regulations and local ordinances.
• Art 670 does not apply to cases provided for in Art 672 aka when the
buildings are separated by a public way or alley at least 3m wide
4 light and view
• Article 673. Whenever by any title a right has been acquired to have direct
views, balconies or belvederes overlooking an adjoining property, the owner
of the servient estate cannot build thereon at less than a distance of
three meters to be measured in the manner provided in article 671. Any
stipulation permitting distances less than those prescribed in article 670 is
void.
4 light and view
Rules relating to Art 673
• “Title” refers to agreements, will, donation or prescription
• Such act would imply the exercise of the right of ownership by the use of
entire thickness of the wall. It would be an invasion of the right of the
other part owners.
• Openings allowed are for the purpose of admitting light. They can be made
only in the walls of buildings and not in the walls separating gardens or
yards because they have no need for such openings
4 light and view
• “Ceilings”: that part of a construction which covers the room under it and
certainly forms one f the essential parts of very story of a building having
several floors.
• “Joists”: horizontal timber that are placed upon the tops of the uprights,
commonly beams, intended to serve for connection and main support of the
timbers of the different floors the separate stories of a building
4 light and view
• Where a building has several stories, these openings may be made in every story
• The period to require the closing of the illegal opening begins to run from the moment
such opening is made. But it is only the action to compel the closure which prescribes.
• Although action to compel the closing has prescribed, this does not mean that
servitude has been acquired by person who opened them. Servitude is negative and period
for acquisitive prescription will begin to run only from the time that the owner
asserting the servitude has forbidden the owner of adjoining tenement from doing
something he latter could lawfully do without the servitude.
4 light and view
• “Direct view”: 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 need of putting out or turning one’s head
• “Side of oblique view”: obtained from a wall an angle with the boundary
line such that in order to see the adjoining tenement, it is necessary to put
out or turn one’s head to the left or right
4 light and view
• Whether direct or oblique, it is not sufficient to consider the relation
existing between the dividing line of the tenements and the wall on which
the opening is made. Consider whether a person at the window can look at
the adjoining tenement without inclining towards any direction or whether
he has to put his head out the window and turn head to other side
4 light and view
• Estoppel cannot be invoked where the law imposes an express duty upon the
other person and prohibits him from the exercise of certain acts in a
certain way
• Mere opening of window in violation of the present article does not give
rise to easement of light and view by prescription
5 right of way
● What is a Right of Way
● is a privilege constituted by covenant or granted by law to a person or
class of persons to pass over anothers property when his tenement is

surrounded by realties belonging to others without an adequate outlet
to the public highway. (Quimen v CA, G.R. No. 112331, 29 May 1996)
5 right of way
● What is an Easement of Right of Way
● is the easement or privilege by which one person or a particular class of
persons is allowed to pass over another’s land, usually through one

particular path or line (cited in Paras, Civil Code of the Philippines
Annotated, 1999 ed.)
5 right of way
● Requisites:
● Dominant Estate is surrounded by other immovables and has no adequate
access;
● There must be payment of the proper indemnity;
● The isolation is not due to acts of the dominant estate's proprietor; and
● The easement should be established at a point least prejudicial to the
servient estate
5 right of way
● To justify an imposition of easement of right way, there must be a real
necessity for it. Mere inconvenience will not suffice.
● Burden of proof lies on the owner of the dominant estate. (Floro v Llenado,
G.R. No. 75723, 02 June 1995)

5 right of way
● Requisites:
● Dominant Estate is surrounded by other immovables and has no adequate
access to a public highway.

– It does not necessarily mean that the Dom is landlocked
– It is enough that there is no safe egress and ingress
5 right of way
● Requisites:
● There must be payment of the proper indemnity.
– Permanent passage = is equal to value of land occupied

– Temporary passage = is equal to damage caused.
5 right of way
● Requisites:
● The isolation is not due to acts of the dominant estate's proprietor.
– If the isolation of the estate is due to fault attributable to the

owner himself, the law prevents him from obtaining an easement of
right of way. (Tolentino citing Sanchez Roman)
5 right of way
● Requisites:
servient estate.
– Least prejudicial v shortest distance
● This is a matter of judicial appreciation.
● If the two do not concur in a single tenement, the way where
damage will be least prejudicial shall be used even if not the

shortest one. (Quimen v CA, G.R. No. 112331, 29 May 1996)
5 right of way
● Requisites:
servient estate.
– Least prejudicial v shortest distance
● This is a matter of judicial appreciation.
● If the two do not concur in a single tenement, the way where
damage will be least prejudicial shall be used even if not the

shortest one. (Quimen v CA, G.R. No. 112331, 29 May 1996)
5 right of way
Ipapo Farmland
Llenado Homes Subdivision
McArthur Highway
Palanas Creek
Floro Park Subdivision

5 right of way
Yolanda Yolanda
Store
Anastacia Other Lots
Sotero
Municipal Road
5 right of way
La Vista LGV
Mangyan Road
Katipunan Avenue
Miriam
The Ateneo
5 right of way
● The WHO?
● Servient Estate Owner
– May demand the extinguishment of the easement.

● Dominant Estate Owner
– Has to pay indemnity to servient estate owner.

– If the easement is permanent, obliged to take care of the easement.
5 right of way
● Die easement die
● Servient estate may extinguish the easement of right way:
– If the servient estate owner requests

● S/He may do so if there is another way which is less onerous; or
● S/He may do so if the right of way is not in use anymore.

6 party wall
● What is a Party Wall?
● A wall that is built on the line that is between two adjoining pieces of
land that belong to two different people for both of them to benefit.
(Black's Law Dictionary)
● A wall at the dividing line of estates. (Paras, Civil Code of the
Philippines Annotated, 16th ed.)

6 party wall
6 party wall
6 party wall
● What is an Easement of Party Wall?
● Is it an easement or co-ownership?
– Both.
– It is an easement by name but functions as a co-ownership.
– According to legal luminaries, it is a Forced Indivision.
● Each owner owns his/her half of the wall but the halves
cannot be separated.
– The party wall is necessarily a common wall. However not all
common walls are party walls.
6 party wall
Handball Wall
LOT 1-D LOT 1-C-K

6 party wall
● Is there a party wall? Yes there is.
● In dividing walls of adjoining buildings up to the point of common
elevation.
● In dividing walls of gardens/yards situated in cities, towns, or in rural
communities.
● In dividing fences, walls and live hedges in rural lands.
● In ditches or drains between tenements.

6 party wall
● The aforementioned were rebuttable presumptions.
● By Title;
● By Contrary proof;
● By Signs contrary to the existence of servitude.

6 party wall
● Exterior signs:
● Window or opening in the dividing wall.
● One of the two is jutting towards the other.
● The entire party wall is built within the boundary of an estate.
● The dividing wall bears the binding beams, floors, and roof frame of one
building but not the other.

6 party wall
● Exterior signs:
● Dividing wall coping on one side only.
● Dividing wall has stepping stones on one side only.
● Lands enclosed by fences/live hedges adjoin another which is not
enclosed
6 party wall
● Rights of the part owners:
● To make use of the wall in proportion to their respective interests.
– Limitations: a) That it does not interfere with the use of other part
owners; and b) the consent of the part owners were secured or the
condition of the building was determined by experts.
6 party wall
● To increase the height of the wall
– Limitations: a) part owner must do so at his expense; and b) part

owner should also indemnify other owners, even for temporary
damage.
6 party wall
● To acquire a half interest in any increase of height or thickness.
– Limitation: pay their proportionate share for the works and the
expenses on the land.
6 party wall
● Duties of the part owners:
● To contribute proportionately to the repair and maintenance of the
wall.
– Subject to: renunciation of part ownership
● If the part owner raises the height of the party wall he must bear the
increased expenses of construction and maintenance.

7 drainage
I. Concept - 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.
7 drainage
II. Ownership of Rain Waters
A. Art. 6(c), Water Code of the Philippines: 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. (Art. 7, Water Code)
● The owner of the land where the rain waters fall may use the same even without
securing a permit from the National Water Resources Council but only for
domestic purposes. (Art. 6, last par., Water Code)
7 drainage
II. Ownership of Rain Waters
B. In cases where the owner of a building does not intend to collect the rain waters
falling on the roof or covering of his building:
● he has the obligation to construct the roof or covering of his building in such manner
that the rain waters shall fall on his own land or on 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 (NCC 674)
● And even if it should fall on his own land, he is also obligated to collect the water
in such a way that it will not cause damage to the adjacent land or tenement
(NCC 674).
7 drainage
III. Legal Easement of Drainage (Compulsory Easement)
• An easement of drainage may be demanded subject to compliance with the
following requisites(NCC 676):
1. The yard or court of a house must be surrounded by other houses (“the dominant
estate”) and it is not possible to give an outlet through the house itself to
the rain collected therefrom;
2. The outlet to the water must be at the point of the contiguous lands or
tenements (“the servient estate”) where its egress may be easiest
7 drainage
An easement of drainage may be demanded subject to compliance with the following
requisites(NCC 676):
3. The conduit for the drainage must be established in such manner as to cause
the least damage to the servient estate; and
4. Proper indemnity must be paid to the owner of the servient estate
7 drainage
● Option of the servient owner in the easement of roof drainage (NCC 675)
He may receive water on his own roof and drain the same without damage to the
dominant estate, according to ordinances and regulations
8 intermediate distances
I. General Rule: Buildings or plantings may only be made according to special laws,
ordinances and regulations.
II. Constructions: For wells, sewers, aqueducts, furnaces, forges, chimneys, stables,
deposits of corrosive materials, machines or factories:
○ Distances fixed by ordinances or custom must be observed.
○ Protective structures prescribed by ordinances or custom must be erected.
- If none, precautions must be taken, if necessary, to avoid damage to
neighboring estates or buildings (NCC 678)
- Violation give rise to responsibility for damages caused (NCC 2191)
- No waiver is allowed on the part of the adjoining proprietors.
III. Distance to be observed in Case of Planting Trees (NCC 679)
● Prohibits the planting of trees near a tenement or piece of land belonging to
another person unless the following distance requirement is observed:
a. the distance authorized by local ordinances or customs of the place, if any; or
b. If no ordinances or customs:
i. For large trees: 2 meters from the boundary
ii. ii. For shrubs: 50 centimeters (measured from the center of the tree)
Note:
● If the foregoing distance requirement is not followed, the owner of the adjacent
land has the right to demand for the uprooting of the trees which were planted in
violation of the rule. (NCC 679 par.2)
● This remedy is also available to the owner of the adjacent land even with respect
to trees which have grown spontaneously at distances shorter than that mentioned in
the immediately preceding paragraph. (NCC 679 par.3)
IV. Intrusions (NCC 680)
A. Of Branches: The owner of the tree may be compelled to cut intruding branches at the
boundary
● If the demand is not acted upon, he has to go to court to seek authority for the
cutting of the protruding branches.
IV. Intrusions (NCC 680)
B. Of Roots: The owner of the invaded tenement may cut them himself at the boundary
Reason: Roots belong to the owner of the invaded soil by incorporation
● The right to cut off the roots is imprescriptible unless:
○ By the formal act he has been, by a formal act, prohibited by the owner of
the tree from cutting off the roots of the tree, in which case, the ten-year
prescriptive period for the establishment of a negative easement will
commence to run. (cf. NCC 621)
V. Fruits Naturally Falling (NCC 681)
● Belong to the owner of the land

○ Exception to the rule in NCC 441: that the fruits belong to the owner of the trees
● This rule, however, does not apply to cases where the fruits naturally fall on a public
property in which case, the owner of the tree retains ownership.
9 n uisance
Easement Against Nuisance (682-683)
-inherent in every building or piece of land; the building or land is the servient estate
-dominant: the general public, or anybody injured
-Paras: “manifestation of the principle that every person should so use his property so as not
to cause damage or injury to others.’’
-Factories and shops may be maintained:
-Subject to zoning, health, police, and other laws and regulations
-Provided that the least possible annoyance is caused to the neighborhood
9 n uisance
A. Definition
Any act, omission, establishment, business, condition of property, or anything else
which:
1. Injures or endangers the health and safety of others
2. Annoys or offends the senses
3. Shocks, defies or disregards decency or morality
4. Obstructs or interferes with the free passage of any public highway or street, or
any body of water
5. Hinders or impairs the use of property
9 n uisance
B. Classifications
1. According to persons affected
a. Public nuisance – affects the community or neighborhood, or any considerable

number of persons, although the extent of the annoyance, danger, or damage upon
individuals may be unequal
b. Private nuisance – anything not included in the above definition
9 n uisance
2. According to nature (Salao v. Santos)
a. Nuisance per se – “a nuisance under any and all circumstances, because it

constitutes a direct menace to public health or safety, and, for that reason, may be
abated summarily under the undefined law of necessity”
-Examples: filthy restaurants (Ynot v. IAC), houses constructed on public streets
and esteros (Sitchon v. Aquino)
9 n uisance
b. Nuisance per accidens – depends on conditions and circumstances, its existence is
a question of fact and cannot be abated without due hearing. Businesses which are
normally legitimate cannot be considered as nuisance per se.
9 n uisance
EXAMPLES:
a. copra storage (Estate of Gregoria Francisco v. CA)
b. ice factory (Iloilo Cold Storage v. Municipal Council)
c. smoked fish factory (Salao v. Santos)
d. dam or fishpond constructed on navigable rivers (Monteverde v. Generoso)
e. gas station (Parayno v. Jovellanos)
f. terminals impeding the flow of traffic (Pampanga Bus Co., Inc. v. Municipality of Tarlac)
g. motels (City of Manila v. Laguio)
h. noise from a building’s air-conditioning units (AC Enterprises Inc. v. Frabelle Properties
Corp.)
9 n uisance
C. Liability for Nuisance
-Successive owners/possessors who fail or refuse to abate nuisance started by a

former owner/possessor are liable
-Abatement of a nuisance does not preclude right of injured person to recover
damages for its past existence
-Lapse of time cannot legalize any nuisance, public or private
9 n uisance
D. Remedies
1. Public Nuisance
a. Prosecution under the RPC or any local ordinance
b. Civil action
c. Extrajudicial abatement (only for nuisance per se)
*Persons to avail of remedies
a. District health officer
b. City/municipal mayor
c. Private individual
2. Private Nuisance
9 n uisance
a. Civil action
b. Extrajudicial abatement (only for nuisance per se)
3. Limitations on Abatement
a. Not to commit a breach of peace or cause unnecessary injury
b. Extrajudicial abatement
i. Demand upon owner or possessor
ii. Rejection of demand
iii. Approval of district health officer and assistance of local police
iv. Value of destruction less than 3000 pesos
9 n uisance
c. Damages if unnecessary injury is caused or if alleged nuisance is later declared

by courts not to be a nuisance
10 lateral and subjacent
Lateral and Subjacent Support (685-687)
-Stipulations and testamentary provisions allowing dangerous excavations are
void
-Not only for buildings standing at the time of excavation, but also for future
constructions
-Requirement to notify owners of lands to be affected
-Owner may provide artificial support for adjacent land (Tolentino)
11 voluntary
Voluntary Easements
Pumayag, Ginusto, May Intensyon
11 voluntary
Art. 688 - 693
• General Limitations:
• Law PoPp (Public Order, Public Policy)
• SUTUAN-L
• Art. 581 (The seminal rule)
• Relations to look out for:
• Co-ownership
• Contracts; third persons or strangers
• Easements; general; servient to dominant
11 voluntary
Keywords / Prompters
• Easements; general; servient to dominant • Co-ownership
• Title • Undivided shares or interests
• Rights and Obligations • Securing of consent
• Dominant Estate
• Servient Estate
• Contracts; third persons or strangers
• Privity
• Offers to constitute an easement
• Securing of consent
11 voluntary
• Art. 688 • Art. 689
• Who may establish • The owner may impose w/o consent of
• Owner of a tenement or piece of land the usufructuary
• What he may establish • What he may impose: servitudes
• Easements • Limitation: It will not injure the right
• Manner and form of the usufruct
• Limitation: • Ratio 1: SUTUANL – sic utere
• Law PoPp (Law, Public Order, Public Policy) • Ratio 2: Art. 581
11 voluntary
• Art. 690
• Here, the initiating party or offeror of a constitution of an easement is not the owner of
the land or tenement over which the usufruct is constituted
• Owner of the land or tenement = different from easement offeror
• Naked owner nor Usufructuary are the easement offeror
• Party outside of constituted usufruct
• Offeror must have the consent of both the naked and beneficial owner
• Example:
• Three parties
• Owner of the land (Naked Owner)
• Usufructuary
• Art. 691 11 voluntary
• Situation: undivided tenement or piece of land
• Prompter to: co-ownership
• Consent of all co-owners required
• If only some
• Not the prompting consent required
• No action of easement until everyone has given consent/conformity
• Consent given by a co-owner, separately, binds him and his successors not to prevent
the exercise of the right granted.
• He cannot later renege or act against the offeror of an easement or constitution
thereof
• Consider estoppel
11 voluntary
• Art. 692
• What determines the rights of the dominant estate and the obligations of
the servient estate
• Title
• In a proper case, the possession of an easement acquired by prescription
• In default of the abovementioned, the provisions of Title VII applicable.
• Example:
• What should appear in the title of the estate/s
• In lieu of title: Title VII – general provisions
•Art. 693 11 voluntary
• Situation / Elements:
• Owner of the servient estate
• Upon the establishment of the easement
• Binds himself to bear the cost of work
• Cost of work
• Use
• Preservation
• Remedy:
• Said owner may free himself of this obligation by renouncing his property to
the owner of the dominant estate (Art. 623, cited in Vitug)
QUIZ
Anna Valeria Mikaela Binangarag had just arrived in the grand metropolis of Bacnotan, Ilocos Norte. Taking all her
savings with her, she decided to leave the tumultuous history of her father and his many mistresses which had
culminated in a messy spat over the shares due them over his estate. She decided to spend her first night in a
beerhouse to forget her unfaithful paramour, her many alternative mothers, and a father that had pressured her
into law school. There she met a handsome dancer after his set, Julius Conrad Malcolm Alitaptap, otherwise known
as Blessings.
After a night of love, passion, and Johnny Walker, she had constituted a usufruct over her land, naming Blessings
as the usufructuary. However, it wasn’t long before his sultry dance moves to Bon Jovi’s Never Say Goodbye made
her realize lap dancing cannot feed a family, let alone support her desire to start anew in Bacnotan.
It just so happened that Bertrand Amadeus Filart y Carimarimarim, a bachelor, and a well-known tak-a-tak in
Bacnotan, had saved up enough to open up the offer to the estranged paramours Blessings and Anna to bear a
servitude of an aqueduct through their lands. He intended to supply waters to one of the smaller communities in
Bacnotan, and at the same time improve his standing in order to lure Anna into a relationship. Anna of course
agreed, and claiming that being the naked owner, Bertrand need not go to Blessings anymore.
In due time, Blessings learned of this arrangement and cried foul in a complaint for damages before the trial court,
who ruled in favor of Anna because of her standing as naked owner, which was duly affirmed by the Court of
Appeals. How should the Supreme Court rule, should the easement constituted be upheld?
The children of Don Atanacio Precipicio Bonifacio Valerio Timoteo Smith had managed the Hacienda San
Miguel in his absence for the past two decades. It wasn’t long before Don Atanacio informed his children
that he would stay a bit longer in Italy to settle his divorce with their Italian mother.
In the meantime, Mario Genuino Tenafrancia y Poleto, otherwise known as Billy, sought to establish a road
through the expansive hacienda. Two of the Don’s children, who were promised 95% share of the land
upon Don Atanacio’s death, promptly gave their consent. However, the other seven children vehemently
refused, since after all, the promised 5% of the hacienda they would share in, would further be reduced
in size.
1. May the two children, who were promised 95% of the hacienda, claim substantial compliance with
proper constitution of the easement, being owners of substantially all the land?
2. Say after the court’s judgment to number 1, the seven other children decide to allow the easement be
constituted. May the two children, thereafter, claim instead that their consent was prevented, and refuse
the constitution of the easement?

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Easements

Art 613. An easement or servitude is an encumbrance imposed upon an

Easement: right enjoyed

AS TO OBLIGATIONS IMPOSED AS TO WHETHER THEIR EXISTENCE IS INDICATED

pOSITIVE NEGATIVE APPARENT NONAPPARENT

Modes of acquiring easements

DON MANUEL FEDERICO Sebastian mateo ESTEBAN

Gargantos v Tan Yanon, 108 Phil 888

NON-USER FOR TEN YEARS

class of persons to pass over anothers property when his tenement is

persons is allowed to pass over another’s land, usually through one

● The easement should be established at a point least prejudicial to the

G.R. No. 75723, 02 June 1995)

access to a public highway.

– Permanent passage = is equal to value of land occupied

– If the isolation of the estate is due to fault attributable to the

● If the two do not concur in a single tenement, the way where

damage will be least prejudicial shall be used even if not the

● If the two do not concur in a single tenement, the way where

damage will be least prejudicial shall be used even if not the

Floro Park Subdivision

– May demand the extinguishment of the easement.

– Has to pay indemnity to servient estate owner.

– If the servient estate owner requests

● S/He may do so if the right of way is not in use anymore.

Philippines Annotated, 16th ed.)

LOT 1-D LOT 1-C-K

● In ditches or drains between tenements.

● By Signs contrary to the existence of servitude.

● One of the two is jutting towards the other.

● The entire party wall is built within the boundary of an estate.

building but not the other.

● Dividing wall has stepping stones on one side only.

● Lands enclosed by fences/live hedges adjoin another which is not

– Limitations: a) part owner must do so at his expense; and b) part

increased expenses of construction and maintenance.

● Belong to the owner of the land

1. According to persons affected

a. Public nuisance – affects the community or neighborhood, or any considerable

a. Nuisance per se – “a nuisance under any and all circumstances, because it

-Successive owners/possessors who fail or refuse to abate nuisance started by a

c. Damages if unnecessary injury is caused or if alleged nuisance is later declared

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