EASEMENTS OR SERVITUDES
EASEMENTS IN GENERAL
EASEMENT DEFINED
Encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner
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)
REAL EASEMENT DEFINED
An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.
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)
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
NO EASEMENT ON PERSONAL PROPERTY
There can be no easement on personal property; only on immovables
Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent. 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)
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)
CLASSIFICATION OF EASEMENTS
1. According to party given the benefit
a. Real easement—for the benefit of another immovable belonging to a different owner
b. Personal easement—for the benefit of one or more persons or of a community
2. According to the manner they are exercised
a. Continuous easements
b. Discontinuous easements
3. According to whether or not their existence is indicated
a. Apparent easement
b. Non-apparent easement
4. According to the purpose of the easement or the nature of the limitation
a. Positive easement
b. Negative easement
Art. 617. Easements are inseparable from the estate to which they actively or passively belong. (534)
INSEPARABILITY OF EASEMENTS
Independently of the immovable to which they are attached, easements don’t exist
CONSEQUENCES OF INSEPARABILITY
1. Easements cannot be sold or donated or mortgaged independently of the real property to which they may be attached
2. Registration of the dominant estate under Torrens system without the registration of the voluntary easements in its favor doesn’t extinguish the easements but the registration of the servient estate without the registration of the easements burdening it extinguishes the voluntary easements.
a. Note—actual knowledge of third persons is equivalent to registration in that if they have actual knowledge of the
existence of the easement, they are bound by the same, even though no registration has been made
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 estate or in any other manner 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)
INDIVISIBILITY OF EASEMENTS
Partition or division of an estate doesn’t 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
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)
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
MODES OF ACQUIRING EASEMENTS
Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (537a)
HOW EASEMENTS ARE ACQUIRED
1. If continuous and apparent
a. By title
b. By prescription—ten years
2. If discontinuous and apparent—only by title
3. If continuous and non-apparent—only by title
4. If discontinuous and non-apparent—only by title
MEANING OF TITLE
1. Title here doesn’t necessarily mean document
2. It means a juridical act or law sufficient to create the encumbrance
Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (538a)
APPLICABILITY OF ARTICLE OF EASEMENTS ACQUIRABLE BY PRESCRIPTION: RULES
1. If the easement is positive, begin counting the period from the day the dominant estate began to exercise it
2. If the easement is negative, begin counting from the time of notarial prohibition was made on the servient estate
3. The notarial prohibition should be given by the owner of the dominant estate
Art. 622. Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. (539)
EASEMENTS THAT MAY BE ACQUIRED ONLY BY TITLE
1. Continuous non-apparent easements
2. Discontinuous apparent easements
3. Discontinuous non-apparent easements
EASEMENT OF AQUEDUCT
The easement of aqueduct is considered continuous and apparent and may therefore be acquired by prescription
Art. 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. (540a)
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
Art. 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. (541a)
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
Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. (542)
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
Art. 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. (n)
USE OF THE EASEMENT FOR BENEFIT OF THE IMMOVABLE ORIGINALLY CONTEMPLATED RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE DOMINANT AND SERVIENT ESTATES
Art. 627. The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. (543a)
Art. 628. Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary. (544)
Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude. Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement. (545)
Art. 630. The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement. (n)
RIGHTS OF THE DOMINANT ESTATE
1. To exercise the easement and all necessary rights for its use including accessory easement
2. To make on the servient estate all works necessary the use and preservation of the servitude but—
a. This must be at his own expense
b. He must notify the servient owner
c. Select convenient time and manner
d. He must not alter the easement nor render it more burdensome
3. To ask for mandatory injunction to prevent impairment or obstruction in the exercise of the easement as when the owner of the servient estate obstructs the right of way by building a wall or fence
4. To renounce totally the easement if he desires exemption ffrom contribution to expenses
OBLIGATIONS OF THE DOMINANT ESTATE
1. He cannot alter the easement
2. He cannot make it more burdensome
a. Thus he cannot use the easement except for movable originally contemplated
b. In the easement of right of way, he cannot increase the agreed width of the path nor deposit soil or materials
outside of the boundaries agreed upon
3. If there be several dominant estates, each must contribute to necessary repairs and expenses in proportion to the benefits received by each estate
RIGHTS OF THE SERVIENT ESTATE
1. To retain ownership and possession of the portion of his land affected by the easement
2. To make use of the easement, unless deprived by stipulation provided that the exercise of the easement isn’t adversely affected and provided further that he contributes to the expenses in proportion to the benefits received, unless there is contrary stipulation
3. To change the location of a very inconvenient easement provided that an equally convenient substitute is made, without injury to the dominant estate
OBLIGATIONS OF THE SERVIENT ESTATE
1. He cannot impair the use of the easement
2. He must contribute to the expenses in case he uses the easement, unless there is contrary stipulation
3. In case of impairment, to restore conditions to the status quo at his expense plus damages
4. To pay for the damages incurred for the changes of location or form of the easement
MODES OF EXTINGUISHMENT OF EASEMENTS
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient estates;
(2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;
(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient estates. (546a)
Art. 632. The form or manner of using the easement may prescribe as the easement itself, and in the same way. (547a)
PRESCRIPTION RE VOLUNTARY EASEMENTS
1. The easement may itself prescribe
2. The form or manner of using may also prescribe in the same manner as the easement itself
PRESCRIPTION LEGAL EASEMENTS
1. Some legal easements don’t prescribe
2. But some legal easement do prescribe, as in the case of the servitude of natural drainage
Art. 633. If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others. (548)
EFFECT ON PRESCRIPTION OF USE BY ONE CO-OWNER OF THE DOMINANT ESTATE
The use benefits the other co-owners, hence, there will be no prescription even with respect to their own shares
REASON FOR THIS ARTICLE
The easement is indivisible
