EASEMENTS (SERVITUDES)

- encumbrance imposed upon an immovable for the benefit of a community or one or

more persons (personal easements) or for the benefit of another immovable belonging
to a different owner (real or predial easement)

- real right, constituted on another's property, corporeal and immovable whereby

the owner of the latter must refrain from doing or allowing somebody else to do
something on his property, for the benefit of another person/tenement

easement v servitude
1. easement - used in common law countries, servitude in civil law countries
2. easement under common law in only one form of servitude, servitude is broader
3. easement - common law is always predial or real (in favor of another realty),
servitude,
refers to a predial or real easement upon the one hand, or to a personal easement
upon the other hand

In our civil code, easement is equivalent to servitude.

Easement is better known here and it is accepted term

Effect of acknowledgment of Easement - admission that the property belongs to

another

DIFFERENT KINDS OF EASEMENT

613 Easement or servitude - is an encumbrance IMPOSED UPON AN IMMOVABLE for the

BENEFIT OF ANOTHER IMMOVABLE BELONGING TO A DIFFERENT OWNER.
IMMOVABLE in favor of which easement is established - called DOMINANT ESTATE, that
which is subject thereto, SERVIENT ESTATE

REAL EASEMENT

Whether easement may be established on any of several tenements surrounding

dominant estate, one where the 'way is shortest' and 'will cause the least damage'
should be chosen. If it does not concur, 'the way which WILL CAUSE THE LEAST DAMAGE
should be chosen even if it will not be the shortest

614 Servitudes established for benefit of community, or of one of more persons - to

whom encumbered estate does not belong

PERSONAL EASEMENT (both are real rights, but will prejudice third persons only if
duly registered

PERSONAL EASEMENT V USUFRUCT

PER - cannot be alienated, USU - can be
PER - use is specifically designated, USU - use has a broader scope, and in general
comprehends all possible uses of the thing

CHARACTERISTICS:
- real right - therefore an 'action in rem' is possible against the possessor of
servient estate
- imposable only on ANOTHER'S PROPERTY (hence, there can be no true easement on
one's own property. merger will cause extinguishment
- jus in re aliena (real right that may be alienated although naked ownership is
maintained)
- a limitation or encumbrace on servient's estate for another's benefit
- it is an encumbrance on servient's estate but confers a benefit on dominant
estate
NOTES:
- essential that there be a benefit
- not essential that benefit be exercised, what is vital is that it can be
exercised
- not essential for the benefit to be very great
- benefit should be NOT SO GREAT as to completely absorb or impair usefulness of
servient estate, for then, this would not be merely an encumbrance or limitation
but CANCELLATION OF THE RIGHTS OF SERVIENT ESTATE
-benefit or utility goes to dominant estate (not necessarily the owner). there is
limited use but there is no possession)
- exercise is naturally restricted by the NEEDS of dominant estate or of its owner,
such needs being dependent upon progress of civilization (need for drive way not
mere pathways for automobile owners
easements, being abnormal restriction of ownership are not presumed BUT MAY BE
IMPOSED BY LAW
- there is inheritance (inseperability) from estate to which it belongs
- it is INDIVISIBLE (even if tenement be divided)
- it is INTRANSMISSIBLE (unless tenement affected be also transmitted or alienated
- it is PERPETUAL (as long as the DOM ES exists unless sooner extinguished by
causes enumerated by law)
NO EASEMENT ON PERSONAL PROPERTY
-
only immovables which cannot be moved are object of easement)

615 Easements may be continuous or discontinuous, apparent or non-apparent.

Continuous easements - those of which is or may be incessant, without intervention
of any act of man
Discontinuous easements - are those which are used at intervals and depend upon
acts of man
Apparent easement are those which ARE MADE KNOWN and are CONTINUALLY KEPT IN VIEW
OF EXTERNAL SIGNS that reveal the use and enjoyment of the same
Non-apparent easements are those which SHOW NO EXTERNAL INDICATION of their
existence

616. Easements are also positive or negative

POSITIVE - one which imposes upon the owner 0f the servient estate the obligation
of allowing something to be done or of doing it himself and
NEGATIVE - that which prohibits the owner of the servient estate from doing
something which he could lawfully do if easement did not exist

CLASSIFICATIONS OF EASEMENT
- ACCORDING TO PARTY GIVEN THE BENEFIT (REAL OR PERSONAL)

REAL (PREDIAL) - for benefit of another immovable belonging to different owner

Easement of water where lower estates are obliged to allow water naturally
descending from upper estates to flow into them (lower estates)
Personal easement - for the benefit of one or more persons or of a community (not
owner of servient estate) - easement of right of way for passage of livestock

ACCORDING TO MANNER THEY ARE EXERCISED (CONTINUOUS OR DISCONTINUOUS

CONTINUOUS EASEMENTS - use is incessant, or may be incessant without intervention
of man, (easement on drainage) (enough that it MAY BE incessant)
DISCONTINUOUS - they are used at intervals and depends upon the acts of man (right
of way and aqueduct

ACCORDING TO WHETHER OR NOT THEIR EXISTENCE IS INDICATED (APPARENT OR NON-APPARENT)

APPARENT - those made known and continually kept in view of external signs that
reveal the use and enjoyment of the same (signs need not be seen, but should be
susceptible of being seen)
NON-APPARENT - show no external indications of their existence

ACCORDING TO THE PURPOSE OF EASEMENT OR THE NATURE OF THE LIMITATION (POSITIVE OR

NEGATIVE)

POSITIVE - here the owner of servient estate is obliged to allow something to be

done to his property or to do it himself. SERVITUTES OF
SUFFERANCE/INTRUSION/SERVICE because something is being done to the servient estate
(easement of light and view)
NEGATIVE - owner of the servient estate is prohibited to do something which can be
lawfully be done by him if there's no easement. SERVITUDES OF ABSTENTION OR
LIMITATION OR RESTRICTION

ACCORDING TO THE RIGHT ONE

- right to partially use servient estate
- right to get specific materials or objects from the servient estate
- right to participate in ownership
- right to impede or prevent the neighboring estate from performing a specific act
of ownership

AS TO ORIGIN AND ESTABLISHMENT OF EASEMENT

VOLUNTARY (by will or agreement of parties or the testator)
MIXED
LEGAL

617 Eeasements are inseperable from the estate to which they actively or passively
belong
- indicates that independently of the immovable to which they are attached,
easements do not exists

CONSEQUENCES OF INSEPERABILITY
- Easements cannot be sold or donated or mortgaged independently of real property
to which they may be attached
- regis of dom estate under Torrens system without regis of vol easements in its
favor does not extinguish easement, but regis of servient est without regis of
easements burdening it extinguishes vol easement

easements shall continue to subsist and shall be held to pass with the title of
ownership until rescinded or extinguished by virtue of registration of servient
estate

GR - registration of the servient estate without registration of voluntary easement

PRESUMABLY extinguishes the easement, except
grantee or transferee of ser es actually knew of the existence of unrecorded
easement
there is understanding or stipulation that easement would continue to exist

618 Easements are indivisible. If SE is divided between 2 or more persons, easement

is not modified, and each of them must bear it or the part which corresponds to
him. If it is DE that it divided into 2 or more persons, each of them may use
easement in its entirety,
without changing the place of its use, or making it more burdensome in any other
way.

partition or division of estate DOES NOT DIVIDE THE EASEMENT WHICH CONTINUES TO BE
COMPLETE IN THAT EACH of DE can exercise can exercise the whole easement over each
of SE, but only part corresponding to each of 'em (provided that burden is not
increased)
mere increase in the numbers of owners is not what the law means when it says that
the easement should be made more burdensome.

619 Easements are established either by law, or will of owners.

Former - legal, Latter - voluntary.

MODES OF ACQUIRING EASEMENTS

620 Continuous and apparent easements ACQUIRED EITHER by virtue of a title or by

prescription of 10 years

if continuous and apparent - title or prescription

if discontinuous and apparent - title
if continuous and non-apparent - title
if discontinuous and non-apparent - title

title - does not necessarily mean document,

it means a juridical act or law sufficient to create and encumbrance

prescription - is a mode of acquisition, and it is generally and ordinarily a

title,
but it is not considered as such as it is distinct from title

acquisition by prescription - 10 years irrespective of good or bad faith, the

presence or absence of just title on part of possessor. XPN: 1115 (not applicable,
cases provided by special or particular provisions of law.

621 In order to acquire prescription the easement, time of possession should be

computed
positive easement - day from which the owner of DE, or person who may have use
easement commenced to exercise it upon SE.
negative easement - day from which the owner of DE forbade, by instrument
acknowledged before a notary public, the owner of SE from executing an act which
would be lawful without easement

622 Continuous non-apparent and discontinuous non-apparent easement, whether

apprent or not, may be acquired only by virtue of title

REQUISITES FOR PRESCRIPTION

- possession, concept of owner
public, peaceful, and uninterrupted

623 absence of document or proof showing origin 0f an easement which cannot be

acquired by prescription may be cured by a deed of registation by owner of SE or
final judgment

applicable to continuous non-apparent, discontinuous easements (whether apparent or

not)

how proof may be given of existence of easements

- by deed of recognition by servient owner
- final judgment

624 Existence of an apparent sign of easements bet 2 estates, established or

maintained by owners 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 state is divided, contrary should be
provided in title of conveyance of either of them, or the sign aforesaid should be
removed before the execution of deed.
Provision shall also apply in case of division of a thing owned in common by 2 or
more persons

APPARENT SIGNS OF AN EASEMENT THAT APPERENTLY EXISTS

before alienation, no true easement

after alienation,
arises easement if sign continues to remain XPN contrary agreement
(continuance is the sign - TITLE)
no easement - sign is removed or there is an agreement provides otherwise)