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X. EASEMENTS OR SERVITUDES thereto is the servient estate.

 ** the easement maybe established against any


A. Definition - it is an encumbrance imposed upon an immovable surrounding the dominant estate, and one which
immovable for the benefit of a community or one or more has shortest distance and will cause the lease damage. In case
persons (personal easements) or for the benefit of another of conflict, least damage will prevail.
immovable belonging to a different owner (real or predial
easement)

Personal easement (art. 614)

Easement distinguished from servitude  servitudes established for the benefit of a community or
of one or more persons to whom the encumbered estate does
 Easement is the name used in common law countries; not belong
servitude in civil law countries.
 An easement under common law is only one form of
servitude; servitude is broader.
 An easement under common law is always predial or Personal easement distinguished from real easement
real; servitude refers either to predial/ real easement or
personal easement  Cannot be alienated; generally can be alienated
 The use is specifically designated; the use has a broader
** civil code provides that easement is equivalent to servitude. scope, and in general comprehends all possible uses of the
thing

Real easement art (613)


B. Essential features of easements:
 an easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable  It is a real right
belonging to a different owner.  It is a right enjoyed over another property. It cannot exist
 The immovable in favor of which the easement is in one's own property.
established is called the dominant estate, that which subject  It is a right constituted over an immovable by nature
(land and buildings), not over movables of other immovables (d) actual knowledge of third persons is equivalent to
in art. 415. registration, if they have actual knowledge of the existence of
 It limits the servient owner's right of ownership for the the easement, they are bound even though there is no
benefit of the dominant estate. Being an abnormal limitation registration.
of ownership, it cannot be presumed.
 It creates a relation between tenements. ** a right of way may be either a legal easement (if there is no
 It cannot consist in requiring the owner of the servient other adequate outlet to a highway, a neighbors land may be
estate to do an act. Unless the act is an accessory to a predial subject to legal easement) or voluntary easement (even if there is
servitude. already an adequate outlet, a person may desire to cross his
 Generally, it consists in the owner of the dominant estate neighbor's land)
demanding the owner of the servient estate refrain from
doing something or that the latter permit that something be (e) registration of the servient estate without including the
done over the servient property but not in the right to voluntary easement extinguishes the said easement, except:
demand that the owner of the servient estate obligation to a
predial servitude. (1) If the grantee or transferee of the servient estate
 It is inherent or inseparable from estate to which they actually knew of the existence of the unrecorded easement
actively and passively belong (art. 617)
(2) There is an understanding or stipulation that the
 consequences of inseparability: easement would continue to exist.

(a) easements cannot be sold or donated or mortgaged


independently of the real property to which they may be
attached.  It is intransmissible, it cannot be alienated separately
from the tenement affected or benefited.
(b) registration of the dominant estate under the torrens  It is indivisible (art. 618)
system without the registration of the voluntary easement in its
favor, does not extinguish the easement.  if the servient estate is divided into two or more persons -
the easement is not modified, each of them must bear it on
(c) but registration of the servient estate without registration the part which corresponds to him.
of the easement burdening it, extinguishes the voluntary  If the dominant estate is divided between two or more
easement. 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.
 voluntary
 constituted by a will or agreement of the parties or by a
testator
 It has permanence. Once it attaches, whether used or not,
it continues and may be used at anytime.

 As to its exercise (art. 615)

C. Classifications of servitudes  apparent


 those made known and continually kept in view by
 As to recipient of benefits: external signs that reveal the use and enjoyment of the same.
Ex. Right of way when there is an alley or a permanent path;
 Real - for the benefit of another immovable belonging to window to a party wall visible to both owners.
a different owner. Ex. Easement of water where lower estate  Note or mark need not be seen but susceptible of being
are obliged to allow the flow of water descending from the seen.
higher estate.  Easement of aqueduct is considered always apparent
 Personal - for the benefit of one or more persons or of a whether or not it can be seen.
community. Ex. Easement of right of way for the passage of
livestock

 non-apparent easement
 they show no external indication of their existence. Ex.
 As to source of origin: Easement of intermediate distances; easement of lateral or
subjacent support.
 legal easement
 whether for public use or for the interest of private
persons
 Constituted by law  As indication of its existence (art. 615)
 Positive Ex. Law, donations, contracts or wills
 the owner of the servient estate is obliged to allow
something to be done on his property or to do it himself. Ex.  if easement has been acquired but no proof of the
Easement of light and view in a party wall; right of way; existence of easement is available, and easement is one that
duty to cut off tree branches extending over the neighbor's cannot be acquired by prescription, then:
estate.  may be cured by deed of recognition by owner of the
servient estate.
 By final judgment
 Existence of an apparent sign considered a title.
 negative
 the owner of the servient estate is prohibited to do
something which he could lawfully do where it not for the
existence of the easement. Ex. Easement of light and view  By prescription
when the window or opening is on one's own wall or estate

F. Rights and obligations of owners of dominant and servient


D. General rules relating to servitudes: estates

 No one can have a servitude over his own property


 A servitude cannot consist in doing
 There cannot be a servitude over another servitude 1.) Rights of owner of dominant estate: art. 625/626
 A servitude must be exercised civiliter, in a way least
burdensome to the owner of the land  to use the easement and exercise all rights necessary for
 A servitude must have a perpetual cause. its use.
 necessary rights includes: repair, maintenance, accessory
easements. Ex. Right of way if the easement is for the
drawing of water.
E. Modes of acquiring easements  Termination of the principal easement necessarily
terminates the secondary or accessory easement.
 By title - juridical act which gives rise to the servitude.  To prejudice third persons, voluntary easement must be
registered.
 To do at his own expense, all necessary works for the use
and preservation of the easement. Art. 627 4.) obligations of the owner of the servient estate
 But without altering it or rendering it more burdensome.
 He must notify the owner.  not to impair the use of the easement. Art. 629 par 1
 He must choose the most convenient time and manner so  To contribute proportionately to expenses if he uses the
as to cause the least inconvenience to the owner of the easement. Art. 628 par. 2
servient estate.

G. MODES OF EXTINGUISHMENT OF EASEMENTS


2.) Obligations of the owner of the dominant estate:
1.) Merger - must be absolute, perfect and definite and not
 to use the tenement for the benefit of immovable and in merely temporary.
the manner originally established. Art. 626
 To notify the owner of the servient estate before making  in one person of the ownership of the dominant and the
any repairs and to make repairs in a manner least servient estates.
inconvenient to servient estate. Art. 627  If only a portion is merged, easement continues
 Not to alter easement or render it more burdensome art.  With to repurchase not allowed for it is only temporary.
627  Easement cannot be revived by the sale of the property to
 To contribute to the expenses of works necessary for use a different owner when prior to that the easement is already
and preservation of servitude, if there are several dominant merged in one person either the owner dominant or servient
estate unless he renounces his interest. Art. 628 estate.

3.) rights of the owner of the servient estate 2.) non-user for 10 years

 to retain ownership and use of his property. Art. 630  refers to an easement that has once been used because
 To change the place and manner of use of the easement cannot discontinue using what once has never used.
 computation of the period:
a.) discontinuous easements (they are used at intervals
depending upon the acts of man. Ex. Right of way); counted
from the day they ceased to be used. 5.) renunciation of the owner of the dominant estate

b.) continuous easements (their use is incessant or may be  must be express, clear, specific, clear, express, otherwise
incessant, without the intervention of any act of man. Ex. it might be confused with non-user
Easement of drainage); counted from the day an act adverse to
the exercise took place.

 the use by a co-owner of the dominant estate bars 6.) redemption agreed upon between the owners
prescription with respect to the others. Art. 633 reason: the
easement is indivisible. It applies so long as the co-  this is voluntary redemption, existing because of an
ownership exists. express stipulation.
 Servitudes not yet exercised cannot be extinguished by  The stipulation may provide conditions under which the
non-user. easement would be extinguished.

3.) extinguishment by impossibility of use 7.) other causes not mentioned in art. 631:

 this merely suspends the easement, unless  annulment or rescission of the title constituting the
extinguishment is caused by the necessary period for non- easement.
user since possibility of use revives the easement.  Termination of the right of the grantor.
 Abandonment of the servient estate.
 Eminent domain
 Special cause for the extinction of legal rights of way: if
4.) expiration of the terms or fulfillment of resolutory condition right of way is no longer necessary.

 ex. An easement was agreed to last till the owner


becomes a lawyer.
H. LEGAL EASEMENTS
1.) Law governing legal easements

 for public easements:

a.) special laws and regulation relating thereto - water code,


forestry reform code

b.) chapter 2, title VII, Book 2, NCC

 for private legal easement:

a.) by agreement of the interested parties whenever the law


does not prohibit

b.) by provisions of chapter 2, title 7, book 2, NCC