EASEMENTS
Reginald Matt Santiago, JD | Ateneo de Davao College of Law | September 2021
Main Reference: Elmer T. Rabuya, Civil Law Reviewer Volume 1, Revised 2021 Edition
MODES OF ACQUISITION OF EASEMENTS
APPARENT
NON-APPARENT
CONTINUOUS
[1] Title
[2] Prescription for 10 years1
✓ positive easement – from the
commencement of the exercise of
the easement upon the servient
estate (example: opening a
window through a party wall2)
✓ negative easement – from the
time of notarial prohibition
(example: opening window on a
wall in the dominant estate3)
Easement of light and view4
Easement of water facility5
[1] Title only
DISCONTINUOUS
[1] Title6 only7
Easement of right of way8
[1] Title only
ACQUISITION BY LEGAL PRESUMPTION OR APPARENT SIGN (Article 624)
SCENARIO
Single estate or property belonging to
one owner is divided into two estates
(by partition or sale of portions) where
upon division a visible sign of
easement existed
REQUISITES
1.] There exists an apparent sign of
servitude between two estates
WHEN NOT PRESUMED
1.] Contrary statement is stated in the
title of conveyance of either of them
2.] The sign was established when
the ownership was still in one person
2.] The sign aforesaid should be
removed before the execution of the
deed
Prior to the division, there is yet no
true easement since there is only one
owner9
3.] Established by such owner
referred in No. 2.
It involves a situation where an
apparent sign of servitude such as a
window, door or any other opening
was established by the common
owner of both estates prior to the
division of ownership of these
estates.10
4.] Ownership is later on divided by
alienation or partition
5.] That nothing is stated in the
document of alienation or partition
contrary to such or that the sign was
removed before the execution of the
document
GARCIA v. SANTOS
G.R. No. 228334, June 17, 2019
From Amor v. Florentino and Gargantos v. Tan Yanon, read together with Cortes v. Yu-Tibo, it has been
jurisprudentially established that, in a situation wherein Article 624 of the Civil Code applies, there arises an easement if an
apparent sign of the existence of an easement, i.e., the existence of windows and openings on the dominant estate,
continues to remain even after the transfer of the property to the new owner, unless such apparent sign is removed or if
there is an agreement to the contrary.
[S]uch is exactly the situation attendant in the instant case. Lot 1 and the subject property were once owned by one
owner, i.e., the Sps. Santos. On the subject property, a one-storey house with windows and other openings that accept light
and view from Lot 1, which was idle at that time, was built. Subsequently, in 1998, the subject property was alienated in
favor of the Sps. Garcia. It is undisputed that the windows and other openings on the one-storey house subsisted and
1
Article 662, Civil Code
Article 667, par. 1
3
Article 667, par. 2
4
Alolino v. Flores, 788 SCRA 92 (2016); Easement of light and view is considered a negative easement.
5
Liwag v. Happy Glen Loop Homeowners Association, 675 SCRA 744 (2012)
6
For easements that cannot be acquired through prescription, in case proof of origin of easement is absence, it can be cured by [1] deed of recognition
by owner of the servient estate; or [2] by final judgment (Article 623); or [3] an apparent sign between two estates, established by the owner of both,
referring to Article 541 (now Article 624) of the Civil Code.
7
Article 622
8
Abella, Sr. v. CA, 208 SCRA 316 (1992)
9
1 Rabuya 665 (2021)
10
Garcia v. Santos (2019): “Article 624 – The existence of an apparent sign of an easement between two estates formerly owned by a single owner is
considered a title to easement of light and view.”
2
Page 1 of 6
remained open. It is also not disputed that there was no agreement made by the parties whatsoever to the effect that the
windows and openings of the Sps. Garcia's house should be closed or removed.
Hence, in accordance with Article 624 of the Civil Code, from the time the Sps. Santos transferred the subject
property to the Sps. Garcia, there arose by title an easement of light and view, placing a burden on the servient estate, i.e.,
Lot 1, to allow the Sps. Garcia's residence unobstructed access to light and view, subject to certain limitations xxx.
RIGHTS AND OBLIGATIONS OF OWNERS OF DOMINANT AND SERVIENT ESTATE
OWNER OF DOMINANT ESTATE (DE)
RIGHT
OBLIGATION
Gives holder of the
Only exercise rights
easement an
necessary for the use
incorporeal interest on of the easement
the property but grants
no title thereto11.
Cannot use the
easement except for
All rights necessary for the benefit of the
its use are considered immovable originally
granted12.
contemplated
Cannot exercise the
easement in any other
manner than that
previously established
OWNER OF SERVIENT ESTATE (SE)
RIGHT
OBLIGATION
Retains the ownership
Cannot impair, in any
of the portion on which
manner whatsoever
the easement is
the use of the
establish and continue
servitude (Article 629).
to use the same without
affecting the exercise of
the easement (Article
630)
Use of the
easement or
servitude
Cannot alter or make it
more burdensome13
Make works
necessary for the use
and preservation of
the servitude without
altering it or making it
more burdensome
(Article 627).
Notify the owner of the
servient estate and
choose the most
convenient time and
manner to cause the
least inconvenience to
the owner of SE (Article
627)
Works for the
use or
preservation of
the servitude
If there are several DE,
contribute to the
expenses in proportion
to the benefit (Art. 628)
If easement becomes
very inconvenient or
prevents him from
making important
repairs, it may be
changed at his expense
provided he offers
another place or
manner equally
convenient and in such
a way no injury is
caused to the dominant
estate (Article 629)
The works should be at
the least inconvenience
to the owner of the SE
(Article 627)
Should owner of SE
make use of the
easement shall also
be obliged to
contribute to the
expenses in the
proportion, unless
there is an agreement
to the contrary (Article
628)
MODES OF EXTINGUISHMENT OF EASEMENT (Article 631-633)
1. Merger
2. Non-use – must be due to voluntary abstention by the owner of DE and not to fortuitous event 14.
CONTINUOUS
Non-use for 10 years from the day on which an act
contrary to the same took place
DISCONTINUOUS
Non-use for 10 years counted from the day on which they
ceased to be used
3. Expiration of term or fulfillment of condition
4. Renunciation by owner of DE
5. Redemption – an agreement between owners to release the servient estate from the servitude upon consideration 15.
6. Non-codal grounds: (1) annulment or rescission of title constituting the easement; (2) termination of right of grantor; (3)
abandonment of the servient estate; and (4) eminent domain16.
11
12
13
14
15
16
Bogo-Medellin Mining v. CA, 407 SCRA 518 (2003)
Article 629
Goldcrest Realty v. Cypress Gardens, 584 SCRA 435 (2009)
Tolentino, cited in 1 Rabuya 677 (2021)
1 Rabuya 678
1 Rabuya 674
Page 2 of 6
LEGAL EASEMENTS
A. Easement Relating to Waters
1. Easement of Drainage of Waters17 – waters descend naturally and without intervention of man (Article 637)
DOMINANT ESTATE
Higher estate
Cannot construct works which will increase the burden or
increase the natural flow
SERVIENT ESTATE
Lower estate
Obliged to receive waters as well as the stones or earth
which they carry with them
Cannot construct works which will block or impede the
flow of waters unless he provides an alternative method of
drainage18
2. Easement for Public Use - on banks of rivers and streams and the shores of the seas and lakes (Article 638 19)
COMMUNITY OR PERSON IN FAVOR
General interest of recreation, navigation,
Floating, fishing and salvage
Not allowed to stay longer than what is necessary
SERVIENT ESTATE
Properties of private ownership on the banks of rivers and
streams
Throughout the entire length and within a zone of
✓ 3 meters in urban areas
✓ 20 meters in agricultural areas
✓ 40 meters in forest areas
3. Easement for Drawing Water (Article 640-641)
COMMUNITY OR PERSON IN FAVOR
Those who seek to draw waters or for watering animals
Compulsory easement of drawing waters or animals for
reasons of public use
SERVIENT ESTATE
Those where waters are to be drawn from or affected
Shall also carry with it an easement of right of way
Obligation to allow passage to persons and animals to the
place where the easement is to be used
Upon payment of proper indemnity
4. Easement of Abutment of Dam (Article 639)
DOMINANT ESTATE
One who seeks diversion of water from river or stream
Easement of an abutment of a dam upon payment of proper
indemnity
SERVIENT ESTATE
Owner of the bank or lands where the dam is to be made
Entitled to receive indemnity for the affected estate
5. Easement of Aqueduct20 (Article 642-646)
DOMINANT ESTATE
Estate of one who seeks to make use of water to be
flowed into his or her estate
1.] Must prove he can dispose the water
2.] Prove that it is sufficient
3.] The proposed right of way is the most convenient and
least onerous to third person
4.] Indemnify owner of servient estates
SERVIENT ESTATE
The intervening estates where the water shall pass
including owners of lower estate upon which the waters
may filter or descend
Entitled to receive indemnity for the affected estate
Still has the right to close or fence his estate or building
over the aqueduct in a manner not to cause latter damage
or render necessary repairs and cleanings impossible
17
Considered a continuous easement (1 Rabuya 680 [2021])
Article 50, Water Code of the Philippines (PD 1067)
19
As amended by Article 51 of the Water Code
20
For legal purposes, an easement of aqueduct shall be considered continuous and apparent (Article 646).
18
Page 3 of 6
B. Easement of Right of Way (Articles 649-657)
DOMINANT ESTATE
In favor of an owner or any person entitled21 to use any
immovable which is landlocked22 by other immovables by
other persons without access to public highway
Requisites
1.] dominant estate is surrounded by other immovables and
no adequate outlet to a public highway
2.] payment of proper indemnity
3.] isolation must not be due to the owner of the DE
4.] least prejudicial to the SE and if consistent, the shortest
distance to the public highway23
5.] absolute necessity
When right may be extinguished
1.] when abutted to an estate with access to public highway
2.] when a new road is opened giving access to the isolated
estate
SERVIENT ESTATE
Those estates which the right of way
shall be constituted upon
Obliged to give a right of way
If SE is owned by:
✓ Vendor or grantor → not entitled to indemnity
✓ Vendee or grantee → entitled to indemnity
✓ Donor → entitled to indemnity
✓ Donee → not entitled to indemnity
The owner of the SE then may DEMAND the
extinguishment of the easement of right of way, but
✓ Owner of SE must return in full the amount paid
as indemnity24
C. Easement of a Party Wall25 (Articles 658-666)
AKIN TO A CO-OWNERSHIP
RIGHTS
OBLIGATIONS
Use it in proportion to the right he may have in the coCost of repairs and construction of party walls and
ownership as long as he does not interfere with the
maintenance of fences owned in common shall be borne
common and respective uses of other co-owners26
by all the owners in proportion to the right of each
✓ But may exempt himself by renouncing his partownership except when the party wall supports a
building belonging to him27.
When the party wall supports a building, and the owner of
the building decides to demolish:
✓ Liable for repairs and work necessary to prevent
damage which the demolish may cause to the party
wall on this occasion
Every part-owner of a party wall has the right to increase
the height of the party wall subject to certain conditions
and obligations29.
Co-ownership is retained only up to the original height.
The increased height shall be exclusively to the partowner who at his instance the increase was made.
Other co-owners may acquire a proportionate share in the
raised party wall by paying proportionately for the value of
the work at the time of acquisition and of the land used for
its increased thickness
No part-owner may without the consent of others, make an
opening on the party wall through a window or aperture of
any kind28
Increasing a party wall height
✓ At his expense, which also includes:
✓ Pay for the damage caused by the work
✓ If the party wall cannot bear the increased height
• Obliged to reconstruct at his own expense
• Give space from his own land if necessary for
the purpose
✓ The expenses in maintenance of additional height
✓ The expenses necessary for preservation of the
party wall by reason of the greater height
If other part-owners opt to acquire a proportionate share in
the raised party wall, they all shall bear the expenses for
maintain the additional height in proportion to their
respective interest in it
21
A usufructuary can demand the right of way. However, a lessee cannot. The latter’s remedy is against the lessor (1 Rabuya 696 [2021]).
Note however that the law does not mean that it is absolutely landlocked, what the law contemplates is that there is no adequate passageway that will
fulfill the needs of the owner of the dominant estate. For example, even though there was an existing passageway but the vehicles of the owner of DE
cannot pass through such, a right of way can still be demanded.
23
The “least prejudice” criterion must prevail over the “short distance” criterion (Williams v. Zerda, 820 SCRA 497 [2017] cited in 1 Rabuya 690).
24
This reinforces the concept that the payment of indemnity in easements of right of way is merely for the use of the right of way and not for its
alienation (1 Rabuya 694).
25
Party Wall is a wall at the dividing line of estates; co-ownership governs the wall; Presumption is in favor of the existence of an easement of party wall,
exceptions are (1) title; (2) exterior signs; or (3) proof to the contrary (Article 659); Exterior signs in favor of another shall give rise to a presumption of
ownership of the wall (Article 660).
26
Article 666, Civil Code
27
Article 662
28
Article 667
29
Article 664
22
Page 4 of 6
C. Easement of Light and View30 (Articles 667-673)
DOMINANT ESTATE
Enjoys access to light, a little air, and a view overlooking
the adjoining estate (i.e., the servient estate)31
I. Observance of Certain Distances
SERVIENT ESTATE
Has the obligation to respect the dominant estate’s access
to light and view
Obligation of not impeding the light (ne luminibus officiatur)
Regular Windows32
✓ Distance between the wall in which such opening
is made and the border of the adjoining land should
be at least 2 meters33; BUT
✓ If the dominant estate had already acquired by title
or prescription an easement of light and view
through the regular window, then the servient
estate CANNOT BUILD thereon at less than a
distance of 3 meters34
Obligation of refraining from increasing the height of a
building or an easement not to build higher (altius non
tollendi)41
Measured from the outer line of the wall (or the window
itself if protruding)35
If there is no violation of the distance rules and also not a
part-owner of the wall, the owner of SE may still obstruct
the opening by:
✓ Constructing a building on his land
✓ Raising a wall thereon contiguous to that having
such opening
[But this remedy is not available if the easement
has already been acquired by title or
prescription]42
Oblique Windows36
✓ Distance shall be 60 centimeters37
✓ Measured from the dividing line of boundaries38
[Note: Distance rule shall not apply when separate by a
public alley of at least 3 meters39]
If the distance rules are not observed, owner of SE may
demand its closure or for the compliance
If the owner of SE becomes part-owner of the wall with
opening, he may demand for the closure of the opening
II. Distance rules are not observed, the owner of DE can
make openings on the ceiling joists or immediately under
the ceiling
✓ Opening is not more than 60cm2
✓ With iron grating; and
✓ Wire screen40
D. Easement of Drainage of Buildings43 (Articles 674-676)
OBLIGATIONS
If owner of building does not intend to collect the rain
waters, has the obligation to construct roof or covering of
building in such a manner that the rain waters shall fall on
his own land or on street or public place and not on the
land of his neighbor44
If it falls in his own land, he has obligation to collect the
water in such a way that it will not cause damage to the
adjacent land or tenement45
RIGHTS
Easement of drainage:
1.] Yard or court of a house is surrounded by other
houses, and it is not possible to give an outlet through the
house itself to the rain collected therefrom
2.] The outlet made shall be where its egress may be
easiest’
3.] The outlet or conduit must be in such a manner as to
cause the least damage to the servient estate
4.] Payment of proper indemnity
30
Easement of light or jus luminum has the purpose of admitting light and a little air, as in the case of small windows, not more than 30cm 2 at the height
of the ceiling joists or immediately under the ceiling (Garcia v. Santos [2019]; Article 669). Easement of view or servidumbre prospectus has the principal
purpose of affording view, as in the case of full or regular windows overlooking the adjoining estate (Garcia v. Santos [2019]; Article 670). Note: Discussions
as to acquiring easements of light and view discussed in the first part.
31
Garcia v. Santos, supra
32
Regular windows are openings made on a wall parallel or almost parallel to the line that divide the estates in such a way that the neighboring tenement
can be seen without putting out or turning the head. Also known as full or direct view windows (Garcia v. Santos, supra).
33
Article 670, Civil Code; This 2-meter requirement is also present in the National Building Code (RA 6541 as revised by PD 1096)
34
Article 673, 1 Rabuya 708; This 3-meter rule was applied in relation to Article 624 in Gargantos v. Tan Yanon, 108 Phil. 888
35
Article 671
36
Oblique windows are openings in a wall which form an angle to the boundary line, and therefore necessity requires in order to see the neighboring
tenement to thrust the head out of the opening and to look to the right or left. Also known as restricted or side view windows (Garcia v. Santos, supra).
37
Article 670
38
Article 671
39
Article 672
40
Article 669
41
1 Rabuya 702 (2021)
42
1 Rabuya 711
43
Right to divert or empty the rain waters from one’s own roof or shed to the neighbor’s estate either drop by drop or through conduits (1 Rabuya 711)
44
Article 674
45
Article 675
Page 5 of 6
E. Intermediate Distances and Works for Certain Construction and Plantings (Articles 677-681)
[1] Distances required in planting46:
[a] distances required by ordinance or customs;
[b] if none then – 2m for tall trees; 30cm for shrubs
Non-compliance allows the adjacent owner to uproot (even if spontaneous)
[2] Right to cut branches and roots47:
Branches extending to the neighboring estate
[1] has to first demand the owner of tree to cut them down
[2] otherwise, resort to the courts (cannot take matter in his own hands)
Roots that penetrate the land of another
[1] now allowed to cut off the roots found within his property48
[3] Fruits naturally falling49:
Fruits that naturally fall upon the adjacent land
[1] belongs to the owner of the land
[2] if land is public domain, belongs to the owner of the tree50
F. Easement Against Nuisance (Articles 682-683)
See Codal
G. Legal Easement of Lateral and Subjacent Support51 (684-687)
DOMINANT ESTATE
Land or building entitled to lateral or subjacent support
Right to seek injunctive relief and to recover damages if
right to lateral or subjacent support is violated52
SERVIENT ESTATE
Land required to provide lateral or subjacent support, note
however adjoining landowners is entitled to the support of
the other’s land
Prohibited from making excavation upon one’s land if the
same will deprive adjacent land or building of sufficient
lateral or subjacent support
Prohibited from making stipulation or testamentary
provision allowing such kind of excavation
Notify all owners of adjacent lands of intends to make any
excavation (if allowed)
VOLUNTARY EASEMENTS (Article 688-693)
Those made by will of the parties
➢ In the nature of a contract
Constitution of servitude is an act of ownership
➢ If under usufruct:
owner can impose any servitude without consent of the usufructuary53
usufruct may “impose” but it is only a personal right coterminous with usufruct54
➢
If co-owner
all of the co-owners must consent (act of ownership)55
46
Article 679
Article 680
48
Rationale: With respect to the roots, the same belong to the owner of the land where it is found by reason of incorporation (1 Rabuya 713)
49
Article 681
50
1 Rabuya 713
51
Right to have the land supported by the adjoining lands (lateral support) or the soil beneath (subjacent support). Each of the two adjoining land owners
is entitled to the support of the other’s land (1 Rabuya 714).
52
1 Rabuya 715
53
Article 689
54
1 Rabuya 716
55
Article 691
47
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