I. Easements

9. Easements

a. Concept of Easement b. Characteristics c. Kinds of Easement d. Modes of Acquiring Easements e. Rights and obligations of the dominant and servient estate f. Modes of Extinguishment of Easements

What are the characteristics of easement?

• A real right – an action in rem is possible against the possessor of the servient estate
• Imposable only on another’s property
• Jus in re aliena – real right over another’s property that cannot be alienated independently of the estate to which it belongs
• Limitation or encumbrance on the servient estate for another’s benefit
• There is inherence or inseparability from the estate to which it belongs
• Easements are inseparable from the estate to which they actively or passively belong (Art. 617); they are transmissible, cannot be alienated or mortgaged independently of the estate, or assigned to another immovable.
• It is indivisible (even if the tenement be divided)
• Partition of either the servient or dominant estate between two or more persons does not affect the existence of the easement
• It is intransmissible (unless the tenement affected also be transmitted)
• It may be perpetual, temporary, or conditional, and is extinguished on any applicable ground under Art. 631, including the expiration of its term or fulfillment of its condition (Art. 631[4]). (Paras, supra, p. 646-647).

What is the difference between inseparability of easement and indivisibility of easement?

Inseparability of easement provides that there can be no easement without the immovable to which they are attached while indivisibility of easement provides that:

• 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. (Articles 617 and 618)

CLASSIFICATION

What are the kinds of easements according to purpose of easement or the nature of limitation?

• Positive – one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself. (Art. 616)
• Negative – that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (Art 616)

What are the kinds of easements according to party given the benefit?

• Real (or predial) – for the benefit of another belonging to a different owner (e.g., easement of water where lower estates is obliged to allow water naturally descending from upper estates to flow into them) (Art. 614)
• Personal – for the benefit of one or more persons or community (e.g., easement of right of way for passage of livestock) (Art. 614)

What are the kinds of easements according to the manner they are exercised?

• Continuous – their use is incessant or may be incessant; (Art. 615) NOTE: For legal purposes for acquisitive prescription, the easement of aqueduct is considered continuous; easement of light and view is also continuous.
• Discontinuous – used at intervals and depend upon the acts of man (e.g., right of way because it can only be used if a man passes). (Art. 615)

What are the kinds of easements according to whether or not their existence is indicated?

• Apparent – made known and 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). (Art. 615)
• Non-apparent – show no external indication of their existence (Ex. easement of not building to more than certain height). (Art. 615)

What is the Doctrine of Apparent Sign?

The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. (Art. 624)

SEARCH: Look for cases discussing about the doctrine of apparent sign.

When is this doctrine not applicable?

If both estates or both portions are alienated to the same owner, for then there would be no true easement unless there is a further alienation, this time, to different owners. (Art. 624)

What are the apparent signs of an easement that apparently exists?

• Originally no true easement exists here because there is only 1 owner
• The article speaks of apparent visible easements.
• Sign of the easement does not mean a placard or signpost, but an outward indication that the easement exists.
• An apparent sign of easement between the 2 estates, established or maintained by their common owner, is essential. Upon division of ownership, it serves as title unless the deed provides otherwise or the sign was removed before its execution (Civil Code, Art. 624).

Exception

Arts. 698 and 1143(2) do not apply to easements which are extinguished by non-use for ten years, counted for discontinuous easements from the day they ceased to be used and for continuous easements from the day an act contrary to the easement took place. (See Art. 631).

How is easement established?

• By law (Legal)
• By the will of the owners (Voluntary)
• Through ten-year prescription, for continuous and apparent easements (Art. 620)

Resultantly, when the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to create one as there is no such thing as a judicial easement. A court may declare an easement established by law or by the owners’ will, or acquired in accordance with the rules on prescription; its declaration does not itself create the easement. (La Vista Association, Inc. v. Court of Appeals, G.R. No. 95252, June 22, 1998)

How may Easement/Servitude be acquired?

By:

• Law or the will of the owners, including through donation, contract, or will (Arts. 619–620).
• Prescription of 10 years (Art. 620). This applies only to continuous and apparent easement, either:
• Positive from the day the dominant owner begins to exercise it, e.g., party wall
• Negative from the day in which notarial prohibition is made on servient owner e.g., not to obstruct the passage light
• Deed of recognition by servient owner, e.g., right of way (Art. 623).
• Final judgment, e.g., court declares existence in an action filed for the purpose (Art. 623).
• Apparent sign established by owner of two adjoining estates. Then one estate is alienated and the easement continuous actively or passively unless at the time of division, it is provided that the easement will cease, or the sign removed before execution of deed (Art. 624).

NOTE: All easements may be acquired by title. However, only continuous and apparent easements may be acquired by prescription.

Modes of Extinguishment

How is easement/servitude extinguished? Easement/servitude are extinguished by:

• Merger in one person of the ownership of both dominant and servient estates.
• Non-use for 10 years. Count: Discontinuous Easement: from day not used, Continuous Easement: from day an act contrary to easement happens
• Dominant and/or servient estates fall into condition wherein the easement cannot be used, e.g. flood permanently submerging the land. If the easement is revived, it has not yet prescribed.
• Expiration of term or fulfillment of condition, in conditional or temporary easement.
• Renunciation by dominant owner
• Redemption agreed upon by dominant and servient owners, such as payment of certain sum, doing of an act, or other prestation.

In co-ownership, there is no prescription for as long as one of the co-owner exercises the easement (Art. 633).