CORTES vs. YU-TIBO- Easement of Light and View

FACTS:

Easement disputed here is the easement of light and view. Plaintiff’s wife has certain windows on her property which open on the adjacent lot. It has been established that the plaintiffs hasn’t done any formal act prohibiting the owner of the house of the adjacent house prohibiting them to make any improvements. Plaintiff claims that period of prescription started when those windows were made and acknowledge by the owner of the adjacent lot. Defendant however claims that there should be a formal act prohibiting them from doing a certain act to trigger the prescriptive period.

ISSUE:

Whether or not plaintiffs have acquired the easement through prescription?

RULING: NO.

GENERAL RULE: No part owner can, without the consent of the other, make in a party wall a window or opening of any kind (Art. 580)
The very fact of making such opening in such a wall may be the basis for acquisition of a prescriptive title without the necessity of any active opposition because it always presupposes the express or implied consent of the owner of the wall, which in time, implies a voluntary waiver of the right to oppose.

EXCEPTION: When the windows are not opened on the neighbor's side, there is need of a prohibition from exercising that neighbor's right to build on his land or cover the closed window on the party wall.
The period of prescription starts to run from such prohibition if the neighbor consents to it.
Note: The law refers to all kinds of windows, even regulation windows. According to article 528, windows with "similar projections" include sheds.

The exception applies in this case because
1) what is concerned is a party wall;
2) there was no prohibition on Yu-Tibo to build anything that would cover the Cortes' window (Yu-Tibo wanted to raise his roof which would in effect cover 1/2 of the window).