RIGHT OF WAY Who may demand Who may demand

(1) The owner of the dominant estate; or (2) Any person with the real right to cultivate

or use the dominant estate e.g. a usufructuary.

Note: a lessee cannot demand such easement, because the lessor is the one bound to maintain him in the enjoyment of the property.

Requisites

(1) The dominant estate is surrounded by other immovables owned by other persons;

(2) There must absolutely be no access to a public road or highway;

(a) Even if there is access, it is difficult or dangerous to use, or grossly insufficient;

(b) Mere inconvenience in the use of an outlet does not render the easement a necessity;

(c) An adequate outlet is one that is sufficient for the purpose and needs of the dominant owner, and can be established at a reasonable expense;

(d) Does not necessarily have to be by land – an outlet through a navigable river if suitable to the needs of the tenement is sufficient;

(3) The isolation of the immovable is NOT due to the dominant owner’s own acts e.g. if he constructs building to others obstructing the old way; and

(4) There is payment of indemnity;

(a) If right of way is permanent and continuous for the needs of the dominant estate = value of the land + amount of damage caused to the servient estate;

(b) If right of way is limited to necessary passage for cultivation of the estate and for gathering crops, without permanent way = damage caused by encumbrance.

Rules for establishing Right of Way

(1) Must be established at the point least prejudicial to the servient estate.

[NCC 650]

(2) Insofar as consistent with the first rule, where the distance from the dominant estate to a public highway is shortest.

(a) The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other

hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. [Quimen v. CA (1996)]

(b) The fact that LGV had other means of egress to the public highway cannot extinguish the said easement, being voluntary and not compulsory. The free ingress and egress along Mangyan Road created by the voluntary agreement between the parties is thus legally demandable with the corresponding duty on the servient estate not to obstruct the same. [La Vista Association v. CA]

(3) The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. [NCC 651]

Obligations In Permanent And Temporary Easements Of Right Of Way

Permanent right of way Temporary right of way Indemnity

Consists of the damages and the value of the land.

Consists of the damages only.

Necessary repairs Dominant owner to spend on such.

Servient owner to spend on such.

Share in taxes The dominant owner shall reimburse a proportionate share of taxes to the proprietor of the servient estate.

Servient owner to spend on such.

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Rules on indemnity for estates enclosed through a sale, exchange, partition or donation.

Sale, exchange or

partition Donation

Buyer, grantee or donee as dominant owners The buyer or grantee

shall grant the right of way without indemnity.

The donee shall pay the donor indemnity.

Seller, grantor or donor as dominant owners The seller or grantor

shall pay indemnity.

The donee shall grant the right of way without indemnity.

Extinguishment of Right of Way

(1) The owner has joined the dominant estate to another abutting the public road.

(2) A new road is opened giving access to the isolated estate.

Notes on extinguishment

(1) Extinguishment is NOT automatic. The owner of the servient estate must ask for such extinguishment.

(2) Indemnity paid to the servient owner must be returned:

(a) If easement is permanent: value of the land must be returned

(b) If easement is temporary: nothing is to be returned

Special Rights of Way

(1) Right of way to carry materials for the construction, repair, improvement, alteration or beautification of a building through the estate of another.

(2) Right of way to raise on another’s land scaffolding or other objects necessary for the work.

(a) If it be indispensable for the construction, repair, improvement, alteration or beautification of a

building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. [NCC 656]

(3) Right of way for the passage of livestock known as animal path, animal trail, watering places, resting places, animal folds. [NCC 657]

(a) Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place.

(b) Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters.

(c) Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters

I.9. PARTY WALL

Refers to all those mass of rights and obligations emanating from the existence and common enjoyment of wall, fence, enclosures or hedges, by the owners of adjacent buildings and estates separated by such objects.

Nature

(1) A common wall which separates two estates, built by common agreement at

the dividing line such that it occupies a portion of both estates on equal parts.

(2) A party wall is a special form of that makes it more of an easement as it is called by law.

(b) An owner may use a party wall to the extent of the ½ portion on his property.

Co-Ownership Party Wall Before division of

shares, a co-owner cannot point to any definite portion of the property as belonging to him.

None of the co-owners

may use the

community property for his exclusive benefit because he would be invading the rights of the others.

There is no such limitation

In a co-ownership, partial renunciation is allowed.

Any owner may free

himself from

contributing to the cost of repairs and construction of a party wall by renouncing all his rights thereto.

When Existence Of Easement Of Party Wall Is Presumed

(1) In dividing walls of adjoining buildings up to the point of common elevation.

(2) In dividing walls of gardens or yards adjoining property-owners may rebut these presumptions.

When Existence Of An Exterior Sign Is Presumed [NCC 660]

(1) Whenever in the dividing wall of buildings there is a window or opening.

(2) Whenever one side is straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward.

(3) Whenever the entire wall is built within the boundaries of one of the estates.

(4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others.

(5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates.

(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other.

(7) Whenever lands enclosed by fences or live hedges adjoin others that are not enclosed.

Note: The deposit of earth or debris on one side alone is an exterior sign that the owner of that side is the owner of the ditch or drain.

The presumption is an addition to those enumerated in NCC 660.

Right Of Owners Of A Party Wall

(1) Generally, part-owners may use the wall in proportion to their respective interests, provided that:

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(a) The right to use by the other party is not interfered with;

(b) The consent by the other owner is needed if a party wants to open a window; and

(c) The condition of the building is determined by experts.

(2) To increase the height of the wall.

 He does this at his expense, including the thickening of the wall on his land.

 He shall indemnify the other party for any damages.

(3) To acquire a half-interest in any increase in height or thickness of the wall, paying a proportionate share in the cost of the work and the value of the land covered.

 Note that the value of the land must be appraised at the time of acquisition.

(4) To renounce his part ownership of a party wall if he desires to demolish his building supported by the wall.

 He shall bear all the expenses of repairs and work necessary to prevent any damage which the demolition may cause to the party wall.

Obligations Of Owners Of A Party Wall

(1) To contribute proportionately to the repair and maintenance of the party wall unless he renounces his part-ownership.

(a) This includes the renunciation of the share in the wall + the land

(b) He cannot renounce his part if his building is being supported by the party wall

(2) If he raises the height of the wall, he must:

(a) Bear the cost of maintenance of the additions;

(b) Bear the cost of construction, if the wall cannot support the additional height;

(c) Give additional land, if necessary to thicken the wall;

(d) Pay for damages, if necessary, even if temporary; and

(e) Bear the increased expenses for preservation

I.10. EASEMENT OF LIGHT AND VIEW

In document BOC 2015 Civil Law Reviewer (Final) (Page 175-179)