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Navarro Lecture on Usufruct and Easements and

Servitudes
Nothing complicated about usufructs. The basic idea of usufruct is the
property is given to a person, who is given the right to use and enjoy the
property with a basic obligation of preserving its form and substance.
Basically thats what usufruct is all about. Try to remember at least a few
distinctions of usufruct and lease. Just remember the basic distinctions. You
need not remember all the distinctions. Usufruct is always a real right. Lease
not always a real right becomes a real right only if the duration is more than
one year or if it is registered. Usufruct is created only by the person who
owns the property. Ung lease pwede. It can be created by somebody who is
not actually the owner of the property. For example the lessee may actually
sublease the property. In the matter of its creation, there are various ways of
creating a usufruct. It may be created by the law itself, by the will of the
testator, ok.. ahh.. In the case of a lease, generally the only possible source
of lease is the contract between the parties except only in case of forced
lease under Art. 448 (ung if the value of the land is considerably more than
the value of the building, the land owner cannot compel or ask the builder to
buy but enter into a forced lease.)
You remember the rights of the usufructuary. If you are the
usufructuary, what are your rights? Basically you can use the property, you
are entitled to all the fruits whether natural, industrial or civil fruits.
Supposing there are hidden treasures there, the usufructuary, the law says,
is considered a stranger. In other words, if somebody finds the hidden
treasure then the usufructuary doesnt get any share of it. If it is the
usufructuary himself who finds the hidden treasure, then he may be entitled
to one-half of the hidden treasure and the other half will go to the naked
owner of the property.
You remember the provisions of growing and pending fruits, those
fruits which are growing and pending at the commencement of the usufruct
will belong to the usufructuary. Those fruits which are growing and pending
at the time of the end or termination of the usufruct will of course belong to
the naked owner of the property.
With respect to the fruits pending at the commencement of the usufruct, sabi
natin, will belong to the usufructuary. Does he have to refund to the naked
owner the expenses incurred so far, there is no need to refund the expenses.
But when it comes to the fruits pending at the time of the termination of the
usufruct, while the law says that they will belong to the naked owner, the
owner has to reimburse the usufructuary the expenses incurred by the latter
for cultivation, seeds, and other similar expenses. Okay.

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If the property under usufruct is tenantable, pwedeng i-lease or i-rent out to

tenants, it is the usufructuary not the naked owner who has the right to
determine who will be the tenant of the property.
If there are any accessions, halimbawa the property under usufruct happens
to be a parcel of land, its located along the banks of the river and in the
course of time the area increased because of alluvion, the usufructuary has
the right to make use of the additional area. Thats part of his right under
Art. 571. The usufructuary may decide to personally use the thing, to
personally enjoy it, or he may allow another person to enjoy the thing under
usufruct.
Okay? But remember that all contract entered into by the usufructuary with
third persons are CO-TERMINUS with the usufruct with the exception of lease
of rural land which shall be deemed to continue up to the end of the
agricultural year. The obvious purpose there is to allow the lessee, who may
be cultivating the land, to continue with the production and gathering. Okay.
Usufruct imposes upon usufructuary the obligation of preserving the
form and substance of the thing. Okay. But the law allows the grant of
usufruct over the entire patrimony of a person and when that happens,
chances are in that patrimony there will be some properties which by their
very nature will deteriorate or will be impaired due to ordinary wear and tear.
Alright. Supposing that what has been given by usufruct is property
given which gradually deteriorate through ordinary use, ordinary wear and
tear, halimbawa a car syempre kotse, if the usufruct is for more than five
years, after five years iba na yung kotseng yan. The ordinary use of the car
will result to ordinary wear and tear. Can the usufructuary use the property?
The answer is yes. Pwede pa rin. What will be his obligation? He is simply
obligated to return the thing in the condition in which it may be in the time of
termination of the usufruct. Of course if the thing suffered injury or damage
due to his fraud or negligence, he is obligated to indemnify. Pero kung
ordinary wear and tear lang, no obligation. Okay? He simply has to return the
thing in the condition in which it may be found at the termination of the
usufruct. Okay.
Can there be a usufruct on consumable things, those which cannot be
used in a manner appropriate to their nature without them being consumed
or used up? Can there be a usufruct on money? Can there be a usufruct on
rice, for example? The answer is yes. But well these are sometimes called
ABNORMAL USUFRUCTS ON CONSUMABLES, sometimes called quasiusufructs. But I think the better view is, well as pointed out by some
commentators, if the object of usufruct is consumable in effect what you
have is a simple loan. Simple loan yan, okay. So what will be the obligation of
the usufructuary? Syempre he uses, he consumes, then he simply has the

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right to return or pay their appraised value at the time of the termination of
usufruct IF THEY WERE APPRAISED. If they were not appraised, he will have
the obligation of returning the same quantity and quality or pay their
CURRENT value. Thats one advantage of having an appraisal, at least you
are only obliged to return the appraised value if they we appraised.
With respect to usufructs on fruit bearing trees, remember, the
usufructuary cannot cut down the trees but he is allowed to use the trees
which have been uprooted by accident, ung mga dead trunks, he can use
them but if he does he has the obligation to replace them with new plants.
Fruit bearing trees halimbawa santol, mangga, abocado, or kayumito, star
apple, yan. If there is something extraordinary which happens and the trees
have been uprooted or disappeared in such extraordinary number that it
would be impossible or too burdensome to replace them, the usufructuary
may simply demand from the naked owner to clear the land so that he can
continue using the land or if he wants he can use them but if he does he will
have the obligation to replace them with new trees pursuant to the Art. 575.
Okay.
Usufruct over woodland, the usufructuary is allowed to make such
ordinary felling and cutting as the owner was in the habit of felling or cutting
or in accordance with the customs of the place. You remember in this
connection that coconut land is not woodland ha. A coconut land is not
considered woodland. So hindi pwede magputol ng puno ng niyog ang
usufructuary. Okay.
Supposing the usufructuary introduces useful improvements and
improvements for mere pleasure or ornamental improvements on the
property under usufruct, can he do it? Yes as long as he does not alter the
form and substance of the thing under usufruct. Can he demand
reimbursement for the expenses he incurred? The answer is no. He cannot
claim reimbursement for the expenses he incurred for useful and ornamental
improvements but he can set off the value of these improvements against
any possible liability for damages which he may have incurred.
What are the obligations of the usufructuary? At the start of the
usufruct, there are two basic obligations of the usufructuary. Number one, he
must submit an inventory of the things under usufruct. Number two, he must
also give a sufficient security. What will be the security for? That is to
guarantee the compliance of his obligations as a usufructuary. When is an
inventory not required? 1. When no one will be injured provided of course the
naked owner consents to the non-submission of the inventory. 2. In case the
naked owner waives the requirement for an inventory. 3. Or if there is such a
provision in a will where the usufruct was created by will or in the contract
creating the usufruct. What about the security? When is the security not
required? 1. When no one will be injured provided of course the naked owner

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consents. 2. If there is waiver by the naked owner. 3. If the usufructuary

happens to be the donor of the thing. Sa kanya nanggaling, binigay nya, but
he reserve the usufruct of the property, he is not required to furnish a
security. Okay. 4. In the case of cauccion juratoria, the promise under oath. If
there is caccion juratoria, the usufructuary is also not required to furnish a
security. What will be the legal consequence if there is a failure to provide a
security? We have the provision of Art. 586 of the Civil Code. In that case, the
naked owner may demand that the immovables be place under
administration, that the movables be sold, that the public bans instruments
of credits be converted into registered securities or certificates, and that the
cash and the proceeds of the sale of the movable be invested in safe
securities. The usufructuary of course will be entitled to the interest on these
sales of the movables and the other proceeds of the immovables placed
under administration.
What is the cauccion juratoria, sometimes it may happen that the
usufructuary is given the usufruct of certain properties, house for example,
furniture, equipment and tools, pero walang wala. He doesnt have money to
get the necessary security. In that case he may petition the court to allow
him to make use of the house so that his family can live there, that he be
allowed to use the furniture, that the tools and implements of a trade be
given to him so he can use it, so that he can earn money. Okay. That may be
granted by the court upon the promise of the usufructuary under oath. Kaya
ang tawag jan cauccion juratoria. That he needs the property, that he will
take care of it as required by law.
A usufructuary of course is obliged to take care of the things with the
diligence of a good father of the family. Supposing he fails in that obligation,
he abuses the thing, he misuses that thing under usufruct, will that cause
the termination of the usufruct? The answer is no. What is the remedy of the
owner in t hat case? The owner may simply ask that the administration be
given to him pursuant to the provisions of Art 610 of the Civil Code.
If the usufruct is constituted on a herd of livestock, the law says he is
obligated to replace with the young thereof those which are lost its year due
to natural cause or due to the rapacity of beasts of prey. Yung mga nawawala
dahil sa mga mandarambong, beasts of prey. Mga hayop na mababagsik.
Okay. Supposing the usufruct is constituted on sterile animals, okay ung mga
hayop na baog, hindi pwedeng manganak. Whats the obligation of the
usufructuary? It will be considered as if the usufruct was constituted on the
fungibles. In other words, the usufructuary has simply the obligation to pay
their appraised value if appraised, or if not he has the obligation to replace
them with the same quantity and quality or pay their current value at the
time of the termination of the usufruct. A good example of a sterile animal
would be a mule. Yung mule, M-U-L-E. Thats usually used as a, on animal to
carry ung ano ahh.. mga things or cargo, yung mga panahon ng cowboys at

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Indians yan. Mule is a sterile animal and you produce a mule by cross
breeding a male donkey and a female horse. The offspring will be a mule.
Okay. Sterile yun. Alright.
Who is responsible for repairs? You distinguish between ordinary and
extraordinary repairs. Ordinary repairs are the responsibility of the
usufructuary. When is a repair considered as ordinary repair? If it is due to
ordinary wear and tear and it is indispensable for the preservation of the
thing. So two requisites: it must be due to ordinary wear and tear and it must
be indispensable for the preservation of the thing. That will be considered
and ordinary repair. The usufructuary is obliged to make the ordinary repair.
All other repairs are considered extraordinary. Halimbawa due to wear and
tear but not indispensable for the preservation of the thing, that is
considered extraordinary repair. Extraordinary repairs shall be, according to
the law, at the expense of the naked owner. But please take note the naked
owner is not obliged to make the extraordinary repairs. Supposing the naked
owner makes the extraordinary repairs, he spends for the extraordinary
repairs, what right would he have? Under the law he would have the right to
demand from the usufructuary, legal interest on the amount he has spent for
the extraordinary repairs for the duration of the usufruct. He can demand
legal interest. Supposing the repair is extraordinary, indispensable for the
preservation but not caused by ordinary wear and tear, halimbawa the
property under usufruct is a house meron malakas na bagyo nilipad ang
bubungan, thats not due to ordinary wear and tear but that repair is
indispensable for the preservation of the property. And lets further assume
that the naked owner does not make that extraordinary repair, in that case
since it is indispensable for the preservation of the thing the usufructuary
may make that extraordinary repair. What would be his rights if the
usufructuary under those circumstances makes the extraordinary repairs? He
may demand from the naked owner at the termination of the usufruct the
increase in value which the thing may have acquired as the consequence of
the repair.
Annual charges and taxes, which are considered lien on the fruits, are
charged to the usufructuary. Real property tax on the land under usufruct,
that should be paid by the naked owner not the usufructuary. If the usufruct
is constituted on the whole patrimony of a person and the naked owner
happens to have unpaid debts, is there an obligation on the usufructuary to
pay the debts? If there is no order from the naked owner to pay the debts,
there is no obligation on the part of the usufructuary to pay those debts
except if the usufruct is constituted in fraud of creditors. If there is an order
from the naked owner for the usufructuary to pay the naked owners debts, it
is understood that he is obligated to pay the debts existing at the time the
usufruct was constituted. Only pre-existing debts must be paid applying the
provisions of Art 758 and 759 of the Civil Code.

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How is usufruct extinguished? You take note of the provisions of Art

603 of the Civil Code. The death of the usufructuary GENERALLY terminates
the usufruct. What about the death of the naked owner? It does not
terminate the usufruct. Merger would also result in termination of usufruct.
Meaning to say, if there is merger of the usufruct and the ownership of the
same property on the same person, then the usufruct is necessarily
terminated. Total loss of the thing, that also results in the termination of the
usufruct. Termination of the right of the person constituting the usufruct, that
also terminates the usufruct. If I give you a usufruct over a parcel of land and
during the existence of the usufruct my rights are declared by final judgment
of the court to be null and void. I am not really the owner then thats an
example of a situation where the usufruct will be terminated by termination
of the right of the person constituting the usufruct. Renunciation on the part
of the usufructuary, that will also result in the termination of the usufruct.
Does a renunciation require the consent of the naked owner? The better view
is it does not, it does not. If the loss is not total but partial, of course
needless to state, sabi nga the usufruct continues on the part of the thing
which has not been lost. In the case of multiple usufructs it is only upon the
death of the last usufructuary that the usufruct is terminated. Supposing that
the usufruct is granted for the number of years that would elapse before a
person would reach a certain age. Lets say I give you a usufruct today until
X reaches the age of 40 and X lets say is only 30 years old today, so the
usufruct is supposed to last for how long, the duration? 10 years (40 years
old but he is only 30 years old today). Supposing X dies after 5 years, will the
usufruct terminate? The answer is No. The usufruct continues until the year
when he is supposed to reach the age of 40, after 10 years, unless of course
if the usufruct was granted only in consideration of the existence of X. In
which case, it would terminate upon the death of X.
You take note of the provisions of Art 607. Two situations contemplated
here. First situation, usufruct is constituted both on the land and on the
building. The building is destroyed. Whats the consequence? The usufruct
over the land continues. The usufructuary has the right to continue using the
land and he has the right to make use of the materials. If the naked owner
wants to rebuild his decision is subject to the concurrence, is subject to the
consent of the usufructuary because his usufruct is over both land and
building. If the usufruct is constituted on the building only not expressly
covering the land and the building is destroyed, of course the usufruct on the
building ends but the usufructuary can make use of the materials. The
usufructuary in the situation is still entitled to its continues use of the land
because although the land was not expressly included in the usufruct, the
usufruct given only over the building, of course a building cannot be floating
in thin air. So when he was given the usufruct over the building, necessarily
kasama din un ang pinagkakatayuan ng building. It necessarily includes his
right to make use of the land on which the building stands. If the naked

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owner forbids, he has the obligation to pay the usufructuary interest not only
on the value of the materials but also on the value of the land. Bakit meron
interest pati sa value of the land because sabi nga natin, even if the usufruct
expressly covers only the building it necessarily included the use of the land
because a building cannot float. Okay.
If the property under usufruct has been expropriated, what will be the
legal consequence? The naked owner has the obligation to either replace it
with another property of the same kind and value or depending upon the
naked owner he can simply pay the usufructuary interest on the indemnity
paid to him. This was precisely the rule decided by the Supreme Court on the
case of Locsin vs. Valenzuela where the property under usufruct was taken
under PD27 ung given to the tenant.
Lets us now go to EASEMENTS.
A few important points to remember, again try to take note some of
the distinctions between easements and lease. One distinction na naman ay
easements is always a real right, lease is a real right only when it is more
than one year and registered. Another important distinction of course is that
in easement, you can only have an easement with regard to real or
immovable property, ung lease pwede kahit movable or personal property.
Remember the various types or kinds of easements. An easement may
be continuous or discontinuous, apparent or non-apparent, it may be positive
or negative. When is an easement considered continuous? An easement is
considered continuous if its use does not depend upon the acts of man. It is
discontinuous if its use depends on the acts of man, if it is only used at
intervals and depends on the acts of man. When is an easement apparent? If
there is an external sign which continually keeps it in view and reveals its
use and enjoyment. It is non-apparent if there is no visible indication of its
existence. When is an easement positive? When is it negative? An easement
is positive when it imposes upon the owner of the servient estate the
obligation of allowing something to be done or of doing it himself. It is
negative if it prohibits or prevents the owner of the servient estate from
doing something which otherwise he could lawfully do where it not for the
existence of the easement.
Continuous easement. An easement of drainage, an easement of
abatement of a dam, an easement of light and view, these are continuous
easements. The easement of light and view continuous to be used even if
nobody is making use of the light and view. Its there, so its continuous.
Discontinuous easement, right of way because it is impossible for a man to
continuously walking to and fro through the right of way 24 hours a day 7
days a week. Its use depends upon human intervention, upon the right of
man.

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What about an apparent easement? If a right of way is a permanent

right of way, there is a permanent road there, thats apparent. Okay. Again,
abatement of a dam, kitang kita mo nanjan yan. An easement of aqueduct,
by express legal provisions is always considered continuous and apparent.
Therefore it can be acquired by prescription. Non-apparent easement, the
easement of altius non tolendi, if there is such an easement you are not
supposed to build beyond a certain height. If you are the servient owner and
there are people passing by your property, there is nothing which will
indicate that the reason why you are not building beyond a certain height
because there is an easement. So it is non-apparent.
Positive easement, sabi natin an easement is positive if it imposes
upon the owner of the servient estate the obligation of allowing something to
be done or of doing it himself. A very good example would be an opening
made on a party wall, an easement of light and view thru a party wall. Thats
a positive easement because it imposes upon the owner of the servient
estate the obligation of allowing something to be done on the servient estate
itself. Negative easement, the easement of light and view is negative if you
make the opening on your own wall. So dun sa wall facing the property of
another you make an opening that, as long as you comply with the
requirements ung notarial prohibition, will be a negative easement. Why?
Because the adjacent owner, the owner of the servient estate will be
prohibited from doing something which lawfully he could do where it not for
the existence of the easement. Ano yun? To block your light and view. Okay.
Alright.
Next point. Remember that an easement is inseparable from an estate
to which it actively or passively belongs. You cannot alienate an easement
separately from the estate to which it belongs either actively or passively. It
is inseparable from the estate. How may easement be acquired? Either by
prescription or by title. But remember one very important rule, only
continuous and apparent easements may be acquired by prescription.
Discontinuous easements or non-apparent one can only be acquired by title
not by prescription. That is the reason why an easement of right of way
cannot be acquired by prescription because an easement of right of way is
discontinuous. It may sometimes be apparent or non-apparent but it is
always discontinuous. Even a railroad easement, an easement in favor of a
railroad, meron riles jan etc., it is still considered discontinuous. What is the
prescriptive period for acquiring easement? By prescription, 10 years. When
does the period start to run? In the case of positive easement, on the day in
which the owner of the dominant estate started to exercise it upon the
servient estate. So if the opening is made on a party wall, thats a positive
easement, from the day the opening is made the 10-year period starts to
run. In the case of negative easements, the 10-year period will start to run
only from the date when there is a notarial prohibition on the owner of the
servient estate. If I make an opening in my wall facing your property, I have

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to serve you with a notarial prohibition telling you, oh do not block my light
and view. The 10-year period will start to run only then upon service of the
notarial prohibition. You take note however of Art 624. When there is an
apparent sign of an easement between two estates established and
maintained by the owner of both and these two estates are disposed of,
either or both of them are alienated in favor of others and at the time of the
alienation nothing to the contrary is provided for in the contract or
agreement nor are these apparent signs of an easement removed, pag hindi
tinaggal, then upon the alienation of either or both of the two estates these
apparent signs will be considered as TITLE and would enable the easement
to continue after the alienation. Example Lot 1 and Lot 2 both owned by Mr.
X. On lot 1 there is a house and there are big windows here facing Lot 2. Lot
1 was sold to Mr. A and Lot 2 was sold to Mr. B. At the time of the sale,
nothing was said about the removal of the easements, the big windows were
not closed, sige lang, one year later Mr. B was trying to build on his property.
Sabi ni Mr. A, Okay pare ko, meron ako easement of light and view. If you
want to build on your property you have to observe 3 meters. Ang sabi ni
Mr. B, Aba teka. Asaan ang notarial prohibition mo? How could you possibly
have acquired the easement of light and view when you never served any
notarial prohibition on me? who would be correct? Mr. A would be correct
applying the provisions of Art 624. The existence of those big windows is an
apparent sign of an easement in favor of this property. Since that apparent
sign was not removed at the time when these properties where not alienated
by the former owner, they will now be considered as title and the easement
will be allowed to continue. Yan ang ibig sabihin ng Art 624. Gargantos vs
Taano.
You take note of Art 626 which is a new provision of the New Civil Code
which according to most commentators including the members of the Code
Commission, is intended precisely to counter act a previous ruling of the
Supreme Court kasi under a previous ruling of the Supreme Court ngyari
ganito. Meron sugar mill, it had an easement of right of way over intervening
estates so that it could transport sugar canes of the sugar planters located
further on. Sabi ng Supreme Court, if there are new sugar planters who
would also want to have their sugar canes milled in that mill, okay, then
sugar mill can also use the right of way to transport the sugar cane.
According to most civilists including the members of the code commission,
mali ung decision na un in Balderama vs. North Negros Central. Kaya nga
daw nagkaroon ng Art 626. Under the present Article, the owner of the
dominant estate cannot use the easement except for the benefit of the
movables originally contemplated neither can he exercise the easement in
any other manner than that previously established. So Art 626 is precisely
intended to correct that former ruling. So under Art 626, hindi pwede un. The
milling company cannot use the easement of right of way to transport sugar
cane of other additional planters who were not contemplated when the
easement was earlier established.

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On the rights and obligations of the owners of dominant and servient

estate, of course expenses for the maintenance of the easement this will
have to be borne by the owner of the dominant estate. The owner of the
servient estate if it becomes apparent later on that the location or the
manner of use of the servient estate is turning out to be very very
inconvenient to the owner of the servient estate, may propose a change in
the manner or location of the easement. Okay. If there are several dominant
estates they will all have to contribute proportionately to the maintenance of
the easement. Okay.
Modes of extinguishing easements, you take note of Art 631. Ha?
Merger, again just like you usufruct. Merger of the ownership of the dominant
and servient estates. That will result in the termination of the easement. The
merger must be a permanent one not simply a temporary merger. Okay. If it
is merely a temporary merger, for example the owner of the dominant
estates sells his estate under pacto de retro to the owner of the servient
estate, the easement is not extinguished it is merely suspended. Upon the
exercise of the right to repurchase it will obviously be revived. Okay.
Renunciation by the owner of the dominant estate that also terminates the
easement. None user for 10 years. If either or both of the estates fall into
such condition that the easement could not be used but the easement will
revive if the conditions improved unless in the meantime prescription has
already set in.
On legal easements, ahh easements relating to waters ung lower
estates are oblige to receive the water including the soil and other materials
which naturally flow from the higher estate. Okay. As long as everything
happens naturally, walang human intervention bumagsak ang ulan meron
mga bato etc water which flows to the lower estate, there is no obligation to
indemnify. If there is human intervention, however, halimbawa the owner of
the higher estate draws water from a river, uses the easement of aqueduct,
and transports the water to his estate, uses it therefore in some business or
industry tapos ung excess water falls into the lower estate, ahh there would
be an obligation to pay the indemnity. Take note of the easements applicable
to the banks of rivers and streams, as I mentioned earlier this has been
modified by Art 51 and 52 of the Water Code. So under Art 51 of the Water
Code, the width of the area covered by the easement for the benefit of
recreation, navigation, floatage, fishing and salvage (please take note
kasama ang recreation). Okay. The area depends upon the location. So in
urban areas the width of the easement is only 3 meters, in agricultural areas
the width is much wider 20 meters, and in forest areas the width is actually
40 meters.
Easement of right of way. Paborito din ito mga kasama. Remember you
can demand an easement of right of way if your estate has no adequate
outlet to a public street or highway because it is surrounded by immovable

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belonging to other persons. The outlet to the public highway must be an

adequate outlet. In this connection, in one case it has been held by the
Supreme Court, Where the outlet to a public highway is through a river bed,
okay, a dried river bed, that is not considered an adequate outlet. Why? Eh
during the rainy season hindi ka makadaan dun. Maaring during the dry
season pag mei el nino dry yan, dry yung river bed, pero pag naguulan na,
wala ka ng outlet nyan. So it is not considered an adequate outlet. I refer to
the case of Encarnacion vs CA. okay. Alright. As long as there is an outlet
however, even if it is a very inconvenient outlet halimbawa baku baku ung
daan at pag tagulan maputik. So its an ordeal traversing the outlet. That is
still considered an adequate outlet and therefore you cannot demand a right
of way through another estate. So mere inconvenience does not justify the
demand for a right of way, as long as there is already an outlet even if very
inconvenient to use. What is the indemnity to be paid to the owner of the
servient estate? If it is a permanent right of way, the indemnity to be paid
will have to be the value of the land occupied by the passage PLUS any
consequential damages. If it is not a permanent road, simply involves
walking through the property of another, then indemnity will simply be
whatever damage may be caused to the servient estate as a consequence of
the passage. In determining where the right of way will pass through the
servient estate, remember that there are two factors to consider distance
and amount of damage and prejudice to the servient estate. Between the
two, the one which shall be given preference is the factor of the amount of
damage. In one case, a right of way had to be established through the
servient estate. If a straight path or road will be taken to the public highway
that will involve the demolition of a sari-sari store or a building, if a right of
way will take a more ahhh a longer route however it will involve the cutting
down of avocado tree, abah sabi ng Supreme Court walang choice yan.
Syempre dun na tayo sa avocado. Okay. Mas less prejudicial yung putulin mo
ung avocado tree kaysa sirain mo yan building nay an na masasagasaan
kung direct ang linya. So between distance and amount of damage, it is the
amount of damage given preferential consideration in determining where the
right of way will pass.
Next point. If the owner of the property sells it and after the sale he
realizes that he is now surrounded by the property he sold wala syang outlet
sa public highway, can he demand the right of way? The answer is YES. Does
he have to pay indemnity? Yes. But if he donated it he can simply demand
the right of way. He does not have to pay any indemnity. Bakit? Ano ba
naman. Eh dinonate nya na nga yun. Binigay nya na nga yun. Nungmakulong
sya wala syang madaanan syempre naman dapat bigyan sya ng libreng right
of way. Okay. Reverse situation. I sold property to you, binenta ko sa iyo
property ko kumukamukat mo yun pala surrounded by properties belonging
to me. Wala kang outlet sa public highway. Can you demand the right of
way? Yes! Do you have to pay indemnity? No! No you dont have to pay
indemnity. But supposing it is not a sale, I donated property to you. After the

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donation you found out that the property I donated is surrounded by property
belonging to me. Do you have a right of way? Yes. Do you have to pay
indemnity? Syempre naman. Donation ito eh ha. So you apply different rules
to donors and different rules to sellers of property. Okay.
What is the legal consequence? If after the right of way has been
demanded and constituted, the government opens another public road in
such a way that the servient estate has another access to a public highway,
street or road, is the easement over the servient estate which was earlier
created when that new road was not yet in existence automatically
terminated? Halimbawa ito nandito ang public street so this is dominant
estate it demanded an easement through this property so that it can have an
outlet to public street later on the government constructed another road
here, so hindi nya na kailangan yun kc meron na sha direct access. The
question is will this easement of right of way be automatically terminated?
The answer is no. It will not be automatically terminated. It will only be
terminated if desired by the owner of the servient estate. The option is given
to the owner of the servient estate. Depende yan ky Mr. B, the owner of the
servient estate kung gusto nya iterminate ang easement of right of way. Of
course if Mr. B decides to have that easement of right of way be terminated,
he will have to return the earlier indemnity which he had received from Mr. A.
okay. Walang interest yun but he has just to return the indemnity. Maybe
thats one reason why the owner of the estate would not want to terminate
the easement. Oh earlier nag dedemand demand ka ng easement ditto anjan
yan cge gamitin mo. Its not automatically terminated. It depends upon the
will of the servient estate. The owner of the dominant estate cannot demand
the termination of the easement. That option is granted only to the owner of
the servient estate under Art 655 of the Civil Code.
Easement of party wall basically this is the easement if there is a
dividing wall between two estates presumption thats a party wall. In an
easement of party wall, which is the servient estate and which is the
dominant estate? The servient estate is the party wall itself. The dominant
estates of the two adjoining owners. Okay. So there is always a presumption
that there is a dividing wall between two estates, that wall is a party wall
unless of course there are external signs which would indicate that it is not
actually a party wall. For example if the wall is standing exclusively entirely
on the lot of one of the parties. Eh nasa loob nya langnkatayo yan eh hindi
yan party wall. Okay. If it is straight on one side and plumbed on the other,
oh kanino ang presumption dun ng ownership? Dun sa party on whose side it
is plumbed kc its also occupying his property. Okay alright. So you just take
note the exterior signs contrary to the existence of party wall under Art 660
of the Civil Code. Who is responsible for the maintenance? Of course both
adjoining owners. They must contribute proportionately for the maintenance
of the party wall. Supposing one of the adjoining owners wants to increase
the height or the width of the party wall, can he do it? Yes but he will have to

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shoulder the additional expenses for maintaining a taller and thicker wall and
he has to provide the additional land needed for a thicker wall. If one of the
adjacent owners wants to exempt himself from contributing to the expenses
of maintenance, the law allows him to renounce his part interest in the party
wall except when the party wall supports his building.
With respect to the easement of light and view, what are the things
which we should remember? Tandaan lang natin ok, if you make an opening
in a party wall thats a positive easement prescription starts to run from the
time opening is made. Okay. Nagbukas ka ng opening sa party wall para
makita mo yung magandang dalaga na naliligo sa swimming pool dun sa
katabi mong lote, oh syempre, your neighbor who is the owner of the
adjacent estate has the right to close the opening. So what can you do?
Open it again. It will be a game of close-open close-open. Okay.
Pagpinabayaan nyang nka open yan, nkatiwangwang yang opening na yan
for 10 years, she can no longer ask for the closure. You would have acquired
the easement of light and view through that party wall by prescription of 10
years. If you make an opening on your own wall, sa sarili mong dingding
nakaharap jan sa ano, remember that in the case of direct views you have to
observe the distance of 2 meters. Okay. With respect to direct view, ung
diretsong tingin yan ang direct view, yung oblique view ung mejo lilingon ka
ng ganyan, the distance is less. Ano ang distance? 60 centimeters. So direct
view 2 meters and oblique view 60 centimeters. If you dont observe these
distances under Art 670, you cannot open regular windows or openings on
your own wall. Okay. If you do, your neighbor can ask for the closure of your
openings. Eh papano naman baka mamatay ka sa ano nyan sa init atsaka
kadilimdilim nyan, sana hindi nmana. Under the provisions of Art 669, the
law allows you to make regulated opennings. Hindi pwedeng malaki ha,
limitado lang ang size ng opening na pwede mong gawin 30 centimeters
square hindi 30 square centimeters. Magkaiba yun. Pag sinabi mong 30
square centimeters, eh sus maria, ganito lang kalaki yun ha. 5 by 6
centimeters lang yun that wil give you 30 square centimeters. Ang 30
centimeters square, ibig sabihin ung height yung length tig 30 centimeters.
Okay maliwanag? So mejo malakilaki yun. Pero hindi mo pwedeng magamit
yang opening na yan para nakawin ung mga nakasampay na damit ng mga
kapitbahay mo. Bakit kamo? It can only be placed in the height of the ceiling
joist. Ano ang ceiling joist? Yun ungmga beams connecting the posts of
buildings. Yan yan thats a ceiling joist. If there are several floors of a
building, each floor has its own ceiling joist. So each floor pwede ka meron
ganyang openings, regulated openings. Thats not all. The law also requires
that there should be iron gratings. Okay. Iron gratings imbedded on the wall,
meron mga rehas. Okay. And not only that kailangan meron pang wire
screen. Oh sabi ko nga hindi pwedeng magamit yang opening na yan para
dekwatin ung mga nkasampay na damit nung kapitbahay mo. Thats only to
give you a little light and a little ventilation. Lalo ng ganyan panahon ng el
nino kainit ng panahon eh ano kung walang opening jan baka mamatay ka sa

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heat stroke. Okay? Alright. So remember the requirements under Art 669.
Okay. If your neighbor has already acquired an easement of light and view
against you, pasensha ka pare ko you cannot construct closer than 3 meters
to the boundary line kung meron na syang light and view. Alright.
Next point yung intermediate distances etc tandaan lang natin the law
makes a distinction between tall trees and small trees. Okay. Natatandaan ko
meron isang bata na kumakanta. Sabi nung bata, When I was small and
Christmas trees were tall. Dito meron distinction between tall trees and
small trees. You are not supposed to plant trees very close to the boundary
line of your property. With respect to tall trees you have to observe a
distance of at least 2 meters. Pagdating sa small trees, 50 centimeters. And
then ahhh ayun yung magandang provision Art 681.. ah before that Art 680.
If the branches of the tree of your neighbor extends over your property, you
dont have the right to cut off those branches. You demand from your
neighbor na putulin mo yan okay. Pero kung ang invasions is from below,
yung mga roots ah pwede mong kuwan yan, pwede mong tagain yan, you
can cut off the roots. Okay. Now, yun naming branches extending over your
property hindi naman puro damage or injury yan, possible din na mei benefit.
Halimbawa matamis yung manga na nka pwesto dun sa kanyang property,
some branches extend over your land. Okay? Number 1 rule, bawal hong
yugyugin ang branch. The law simply gives you the right over the fruits
which fall naturally. Okay? So hindi pwedeng sungkitin, hindi pwedeng
yugyugin. Kung ano lang malaglag un lang. Alright.
Easement against nuisance, its not really an easement. It is simply a
restriction on property. Okay. Ahhh.
Easement of lateral and subjacent support. Kung yung properties are
on the same planes on the same level, ang tawag jan easement of lateral
and subjacent support. If one easement or one property is below that would
involve subjacent support.
Voluntary easements you simply read these provisions. Ahhh. If the
property is under co-ownership to impose an easement on the property, all
co-owners of the property must give their consent. With respect to perpetual
voluntary easements, if naked ownership is vested in one person while the
usufruct or beneficial ownership is vested in another you cannot impose a
perpetual voluntary easement without the consent of both owners ha.
I think we can start with nuisance next time. Konti nalang ito.
Nuisance. Modes. Tapos. Alright. So lets close with a prayer. Our Father.