EASEMENTS OR SERVITUDES

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.

Easement Distinguished from Servitude
(a) Easement is the name used in common law countries;
servitude, in civil law countries.
(b) An easement under common law is only one form of
servitude (servitus), the latter term being broader.
(c) An easement under common law is always predial or real (in
favor of another realty); a servitude refers to a predial or real
easement upon the one hand, or to a personal ease- ment upon
the other hand.

Easement Distinguished from Lease

EASEMENT
(a) always a real right (whether the easement be a real or
personal easement).
(b) there is rightful limited use WITHOUT ownership or possession.
(c) can refer only to immovables.

LEASE
(a) a real right only when it is registered or when the lease (of
real property) exceeds one year.
(b) there is rightful and limited use AND possession WITHOUT
ownership.
(c) may involve real or personal property.

DIFFERENT KINDS OF EASEMENTS

A. Real Easement (ART. 613)
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.

B. Personal Easement (Art. 614)
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.

PERSONAL EASEMENT DISTINGUISHED FROM USUFRUCT

PERSONAL EASEMENT
a. Cannot be alienated
b. The use is specifically designated
USUFRUCT
a. Generally can be alienated
b. The use has a broader scope, and in general
comprehends all the possible uses of the thing

ESSSENTIAL FEATURES OF EASEMENT OR REAL SERVITUDE

1. A real rightaction in rem is possible against the possessor of
the servient estate.
2. It is a right enjoyed over another property. Imposable only on
anothers property. It cannot exist in ones own property.
3. It is a right constituted over an immovable by nature (land and
building), not over movables or other immovable in Art. 415.
4. It limits the servient owners right of ownership for the benefit of
the dominant estate. Being an abnormal limitation of ownership,
it cannot be presumed.
5. It creates a relation between tenements.
6. It cannot consist in requiring the owner of the servient estate to
do an act, unless the act is accessory to a praedial servitude
(obligation propter rem).
7. Generally, it may consist in the owner of the dominant estate
demanding that the owner of the servient estate refrain from
doing something (servitus in non faciendo) or that the latter
permit that something be done over the servient property
(servitus in patendo) but not in the right to demand that the
owner of the servient estate obligation to a predial servitude.
8. It is inherent or inseparable from estate to which they actively
or passively belong. (Art. 617)
Art. 617 Easements are inseparable from the estate
to which they actively or passively belong.
9. It is intransmissible, that is it cannot bealienated separately
from the tenement affected or benefited.
10. It is indivisible. (Art. 618)
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.
11. It has permanence. Once t attaches, whether used or not, it
continues and maybe used at any time.

CHARACTERISTICS OF EASEMENT

1. A real rightaction in rem is possible against the possessor of
the servient estate.
2. It is a right enjoyed over another property. Imposable only on
anothers property. It cannot exist in ones own property.
3. It is a right constituted over an immovable by nature (land and
building), not over movables or other immovable in Art. 415.
4. It limits the servient owners right of ownership for the benefit of
the dominant estate. Being an abnormal limitation of ownership,
it cannot be presumed.
4. It is a jus in re alienareal right that may be alienated
although the naked ownership is maintained
4. It is a limitation or encumbrance on the servient estate for
anothers 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 shouldnt 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




CLASSIFICATION OF SERVITUDE

1. As to recipient of benefits.
a. Real- for the benefit of another immovable
belonging to a different owner. Ex. Easement
of water where lower estate are obliged to
allow water naturally descending from upper
estate to flow into them.
b. Personal ( Art 614)- for the benefit of one or
more persons or of a community.
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.
Ex. Easement of right of way for the passage of
livestock, or right of way for the community.

2. As to source of origin:
a. Legal-- whether for public use or for the
interest of private persons (Art. 634)
Art. 634 Easements imposed by law have for their object either
public use or the interest of private persons.
Example of legal easement:
Waters, right of way, party wall, light and view,
drainage of buildings, intermediate distances, against
nuisances, lateral and subjacent support.
b. Voluntary-- constituted by will or agreement
off the parties or by a testator
c. Mixed created partly by agreement and
partly by the law

3. As to its exercise (Art 615)
Art. 615.
Easements may be continuous or discontinuous,
apparent or nonapparent.
Continuous easements are those the use of which is or
may be incessant (unceasing), without the intervention of any
act of man. Ex. Easement of drainage the right to support a
beam of anothers wall.
Discontinuous easements are those which are used at
intervals and depend upon the acts of man. Ex. Easement of
right of way because it can exercise only if a man passesor puts
his feet over somebody elses land.
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. Ex. Right of way when there is
an alley or a permanent path, dam, window in the party wall
visible to both owners
Nonapparent easements are those which show no
external indication of their existence. Ex. Negative easement,
easement of not building to more than a certain height
easement of lateral and subjacent support, easement of
intermediate distances.

4. As indication of its existence: (Art 616)

Art. 616 Easements are also positive or negative.
A positive easement (Servitude of Sufferance or
intrusion or service) 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 (servitude of
abstention or limitation or restriction), that which prohibits the
owner of the servient estate from doing something which he
could lawfully do if the easement did not exist.

Ex. of positive easement, easement of light and view in a party
wall, right of way, duty to cut off tree branches extending over
the neighboring estates.

Ex. of negative easement, easement of light and view when the
window or opening is on ones own wall or estate.

GENERAL RULES RELATING TO SERVITUDE

1. No one can have a servitude over his own property
(nulli res sua servit)
2. A servitude cannot consist in doing (servitus in faciendo
consistere nequit)
3. There cannot be a servitude over another servitude
(servitus servitudes esse non postes)
4. A servitude must be exercised civiliter, i.e in a way least
burdensome to the owner of the land.
i. Quimen vs Ca
ii. Francisco vs IAC
iii. Floro vs Llenado
5. A servitude must have a perpetual cause.

MODES KOF ACQUIRING EASEMENTS

1. By title- juridical act which gives rise to the servitude ex.
law, donations, contracts or wills.
- Manila Electric Co. vs IAC
a. If easement has been acquired but no proof
of existence of easement is available, and
easement is one that cannot be acquired by
prescription, then:
- May be cured by deed of recognition by
owner of servient estate or
- By final judgment
- Existence of an apparent sign considered
a title (Amor vs. Florentina)
2. By prescription
MODES OF ACQUIRING EASEMENTS

Art. 620 Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years.

HOW EASEMENTS ARE ACQUIRED
1. If continuous and apparent a. By title b. By prescriptionten
years
2. If discontinuous and apparentonly by title
3. If continuous and non-apparentonly by title
4. If discontinuous and non-apparentonly by title

MEANING OF TITLE
1. Title here doesnt 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.





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.

RIGHTS AND OBLIGATIONS OF OWNERS OF DOMINANT AND
SERVIENT ESTATES

1. Rights of owner of dominant estate

a. To use the easement (Art 626) and exercise all
rights necessary for its use (Art 625)
Art. 625 Upon the establishment of an easement, all the rights
necessary for its use are considered granted.

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.

b. To do at his expense, all necessary works for
the use and preservation of the easement
(Art. 627)
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.

1) this must be at his own expense
2) he must NOTIFY the servient owner
3) select convenient time and manner
4) he must NOT alter the easement NOR render it MORE
BURDENSOME. (Art. 627).

2. Obligations of owner of dominant estate

a. To use the easement for benefit of immovable
and in the manner originally established (Art.
626)
b. To notify the owner of servient estate before
making repairs and to make repairs in the
manner least inconvenient to servient estate
(Art. 627)
c. Not to alter easement or render it more
burdensome (Art. 627)
d. To contribute to expenses of works necessary
for use and preservation of servitude, if there
are several dominant estates unless he
renounces his interest (Art 628)

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 benets
which each may derive from the work. Anyone who does not
wish to contribute may exempt himself by renouncing the
easement for the benet 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.

3. Rights of owner of servient estate

a. To retain ownership and use of his property
(Art 630)
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.
b. To change the place and manner of use the
easement (Art 629, pag 2)
Art. 629
The owner of the servient estate cannot impair, in any
manner whatsoever the use of the servitude.
(Pag 2) Nevertheless, if by reason of the place originally
assigned, or of the manner etablished 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.

4. Obligations of owner of servient estate

a. not to impair the use of the easement (Pag 1,
Art, 629)
b. to contribute proportionately to expenses if he
uses the easement (Art 628, pag 2)

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 from
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 isnt 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 EASEMENT

Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
dominant and servient estates; (it must be absolute, perfect and
definite not merely temporary)
(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.

Other causes not mention in Art 631:

(a) Expropriation of the servient estate;
(b) Permanent impossibility to make use of the easement;
(c) Annulment, rescission, or cancellation of the title that
constituted the easement;
(d) Abandonment of the servient estate;
(e) Resolution of the right of the grantor to create the easement
(as when there is redemption of the property sold a retro
because of the exercise of the right of conventional redemption)
(f) Registration of the servient estate as FREE, that is, although the
servient estate was registered under the Torrens system, the
easement thereon was not registered (Sec. 39, Act 496), unless
there is a stipulation or actual knowledge of the existence of the
easement on the part of the transferee);
(g) In the case of the legal easement of right of way, the
opening of an adequate outlet to the highway extinguishes the
easement, if the servient owner makes a demand for such
extinguishment. (Art. 655)

Art. 632 The form or manner of using the easement may
prescribe as the easement itself, and in the same way.

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 RE LEGAL EASEMENTS
1. Some legal easements dont 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.

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