3. Voluntary Easements

Voluntary Easements

Concept

A voluntary easement is established by the will of the owners, rather than by law. The distinction concerns the source of the easement: a claimed passage does not become voluntary merely because an owner has allowed or tolerated its use. The claimant must establish the act that created the right. (Art. 619, Civil Code)¹ (Jumao-As v. Crisostomo, G.R. No. 279378, 7 April 2026)²

Governing provisions

Article 619 distinguishes voluntary from legal easements. Article 622 requires a title to acquire a continuous nonapparent easement or any discontinuous easement, whether apparent or not. Where an easement cannot be acquired by prescription, Article 623 allows the absence of a document or proof of its origin to be cured by the servient owner’s deed of recognition or by a final judgment. (Art. 619, Civil Code)¹ (Art. 622, Civil Code)³ (Art. 623, Civil Code)⁴

Requisites / Rules

• Identify the claimed grant. A claimant relying on a voluntary right of way must prove an agreement or other juridical act establishing it. In this context, acquisition by title refers to a juridical act such as a donation, contract, or will. Bare assertions do not prove an agreement. (Spouses Mercader v. Spouses Bardilas, G.R. No. 163157, 27 June 2016)⁵ (Jumao-As v. Crisostomo)²
• Apply the title requirement. A road right of way is an apparent, discontinuous easement. Its visible use does not dispense with the need to establish title under Article 622. (Spouses Mercader v. Spouses Bardilas)⁵ (Art. 622, Civil Code)³
• Test the evidence, not just the wording. A transfer certificate of title notation reading “with existing Right of Way” is not, by itself, a mode of acquisition. Physical signs and title annotations may nevertheless serve as title upon transfer in the circumstances recognized in Spouses Aquino v. Spouses Delfin. (Spouses Mercader v. Spouses Bardilas)⁵ (Spouses Aquino v. Spouses Delfin, G.R. No. 227917, 17 March 2021)⁶

Distinctions

A voluntary easement rests on the owners’ will; a legal easement is established by law. Thus, proof of an agreed grant and proof of entitlement to a compulsory right of way present different inquiries. Failure to prove an agreement does not itself establish the requisites for a legal easement. (Art. 619, Civil Code)¹ (Jumao-As v. Crisostomo)²

Key doctrines

In Spouses Mercader v. Spouses Bardilas, the Court held that a bare title notation was not itself a juridical act creating an easement. In Spouses Aquino v. Spouses Delfin, the Court recognized an easement where physical signs and annotations served as title upon transfer; absent a contrary stipulation, the transferee was bound to respect it. Read together, the cases call for examination of how the asserted easement was constituted, not reliance on the mere presence of a path or a notation in isolation. (Spouses Mercader v. Spouses Bardilas)⁵ (Spouses Aquino v. Spouses Delfin)⁶

Exceptions

For an easement that cannot be acquired by prescription, a deed of recognition by the servient owner or a final judgment may cure the absence of a document or proof showing its origin. This rule addresses a deficiency in proof of origin; it should not be confused with treating an unsupported allegation as an established grant. (Art. 623, Civil Code)⁴ (Jumao-As v. Crisostomo)²

Bar tip

For a claimed voluntary right of way, state Article 622’s title requirement, identify the alleged juridical act, then assess the evidence supporting it. If the theory instead seeks a compulsory easement, analyze that claim separately. (Art. 622, Civil Code)³ (Jumao-As v. Crisostomo)²