Title VII.

EASEMENTS OR SERVITUDES
Chapter 1 - Easements in General

Section 1 – DIFFERENT KINDS OF EASEMENTS

What is an Easement or Servitude?

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for

the benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the
dominant estate, that which is subject thereto, the servient estate.

This article defines Real Easement, and the terms Dominant Estate and Servient Estate.

 An EASEMENT is a real right constituted in another‘s tenement whereby the owner of

the latter must refrain from doing or allow something to be done on his property for the
benefit of another thing or person.

 EASEMENT is a common-law term.

 SERVITUDE is the civil law term.

 A servitude is broader in scope. For example, an easement does not include the right to
draw water. However at present, both terms are interchangeable.

 Difference from Usufruct: An easement grants less rights than a usufruct. An easement
never carries with it the right to possess. The rights granted by an easement are very
limited.

Section 1. DIFFERENT KINDS OF EASEMENTS

1. Classified as to BENEFIT

a. REAL (Article 613)

 Art. 613. An easement or servitude is an encumbrance imposed upon an

immovable for the benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the
dominant estate; that which is subject thereto, the servient estate.”

 A real easement is one in favor of another immovable - the dominant estate; also
called a predial easement.
 This is more common than the personal easement.
 Example: Easement of Water - lower estates are burdened to allow water to naturally
descend from upper estate and flow into the lower estate
1
 b. PERSONAL (Art. 614)

o “Art. 614. Servitudes may also be established for the benefit of a community, or of
one or more persons to whom the encumbered estate does not belong.”

Example: Easement for Drawing Water; Easement of Right of Way for community or for
private person/s, Passage of livestock .

Discuss: North Negros Sugar Co., v. Hidalgo, 63 Phil. 664 – an estate owner who gives a road
easement for the benefit of the community cannot discriminate against one person and allow others
to pass the same road.

2. As to Manner of Exercise & Existence (Art. 615)

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

Continuous easements are those the use of which is or may be incessant, without
the intervention of any act of man.
Discontinuous easements are those which are used at intervals and depend upon
the acts of man.
Apparent easements are those which are made known and are continually kept in
view by external signs that reveal the use and enjoyment of the same.
Non-apparent easements are those which show no external indication of their
existence.

Art. 615 refers to certain kinds of easements, classified -

i.) According to manner they are exercised

o While the object of easement is permanent or continuous, the exercise of its use
may be continuous or discontinuous. (Art. 615, pars. 2, 3)

ii.) According to whether or not their existence is indicated (Art. 615, pars. 4, 5)

2.1 As to Manner of Exercise (Art. 615)

a. CONTINUOUS
o Continuous easements are those the use of which is or may be incessant, without the
intervention of any act of man.
o Example: Party walls; Easement of light and view

b. DISCONTINUOUS
o Discontinuous easements are those which are used at intervals and depend upon the
acts of man
o Example: Right of way – used only when man passes thru it

2
 NOTA BENE:
1. The use of a foot path or road may be apparent but it is not a continuous easement
because its use is at intervals and depends upon the acts of man. A right of way
cannot be acquired by prescription. (Abellana Sr. v. CA, 208 SCRA 316, 1992)

2. A right of way is an interest in the land, any agreement creating it should be drawn
and executed with the same formalities as a deed to a real estate and must be in
writing. (Obra v. Victoriano et al, GR149125, Aug. 9, 2003)

3. For acquisitive prescription purposes, the easement of an Aqueduct is deemed

Continuous, even if the flow of water or its use may not be continuous. (Art. 646)

3. As to Indication of Existence (Article 615, pars. 4, 5)

A. APPARENT (Art. 615, pars. 4)

o Apparent easements are those which are made known and are continually kept in
view by external signs that reveal the use and enjoyment of the same.

Example: 1. A right of way is apparent if the path is marked off.

2. Windows for light and view, on a party wall
3. Dam, aqueducts, drainage of land and buildings

B. NON-APPARENT (Art. 615, pars. 5)

o Non-apparent easements are those which show no external indication of their

existence.

Example: 1. A right of way is non-apparent if the path is not marked.

2. Negative easements; restriction on heights of buildings

4. As to Nature of the Limitation (Article 616)

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the servient estate
the obligation of allowing something to be done or of doing it himself, and a negative
easement, that which prohibits the owner of the servient estate from doing something
which he could lawfully do if the easement did not exist.

1. Positive Easement – also called servitudes of sufferance or intrusion or service.

o This imposes upon the owner of the servient estate the obligation of allowing
something to be done or of doing it himself.

3
 a.) In patiendo (Article 680, 1st part) - To allow something to be done to his property
Example: easement of light and view in a party wall.

b.) In faciendo (Article 680, 1st part)- To do it himself

Example: duty to cut off tree branches extending over one´s neighbor

2. Negative Easement – also called as servitudes of abstention, limitation or restriction.

o Here the owner of the servient estate is prohibited from doing something which he
could lawfully do were it not for the existence of the easement.

Example: Easement of light and view when the window or opening is on one´s own wall or
estate (dominant estate). Servient estate is prohibited to close the window, or
construct building or do anything that would obstruct the light/view.

5. As to Source

a.) Voluntary (Art. 619)

“Art. 619. Easements are established by law or by the will of the owners. The
former are called legal and the latter voluntary easements.”

o North Negros Sugar Co. v. Hidalgo, 63 Phil. 664 (discuss majority decision and
dissenting opinion, p. 653)

b.) Legal (Art. 619) – established by law

c.) Mixed (Art. 620) – can be acquired by title or through prescription

DISCUSS: CHARACTERISTICS OF EASEMENT or SERVITUDE

1.) Easement is IMPOSED ONLY ON ANOTHER´S IMMOVABLE

o It cannot be imposed on your own property but on the property of another.

o “Art. 613. An easement or servitude is an encumbrance imposed upon an

immovable for the benefit of another immovable belonging to a different owner.

The immovable in favor of which the easement is established is called the

dominant estate, that which is subject thereto, the servient estate.”

4
 o Legal Effects:
a.) No true easement is constituted where both properties were owned by the same
person at the time of the alleged creation of easement (Privatization and Management
Office v. Legaspi Towers 300, Inc., 593 SCRA 382)

b.) Thus - “Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant
and servient estates;”

c.) Easement is A REAL RIGHT

o Real right – an action in rem may be imposed against the servient estate owner
(example: easement on a dam to supply water; easement to maintain wires across ones land)

o It is a real right on another’s property, corporeal and immovable, whereby the owner of
the latter must refrain from doing or allowing somebody else to do something to be done
on his property for the benefit of another person or tenement. (Unisource Commercial Dev.
v. Chung, 593 SCRA 230)

o There can be NO easement on personal property. Only immovables [example: land,

building, roads] may be burdened with easements. (see Art. 613 above)

o Easement is a real right that may be alienated by the dominant estate owner, although
the naked title of ownership of the land owned by the servient estate owner is
maintained.

 Easement as a real right will prejudice third parties, only if registered.

Art. 709. The titles of ownership, or of other rights over immovable property, which
are not duly inscribed or annotated in the Registry of Property shall not prejudice
third persons.

o An action in rem is possible vs. the possessor of the servient estate

o Registration gives true notice of the true status of real property and real rights thereto
o Registration is a means to prejudice third persons
o Note: Registration of the dominant estate under the Torrens system without registration
of the voluntary easements in its favor, does not end the easement. But registration of
the servient estate without registration of the easement burdening it, ends the voluntary
easement.

5
d.) An EASEMENT IS INHERENT OR INSEPARABLE FROM THE ESTATE TO WHICH IT
BELONGS. THUS, IT IS INTRANSMISSIBLE – unless the affected estate is also
transmitted or alienated.

o Art. 617. Easements are inseparable from the estate to which they actively or
passively belong.

- This means that an easement cannot exist independent of the immovable to which it
is attached. (See nature of easement in Art. 613)

Consequently:

- Easement cannot be sold or donated or mortgaged independently of the real property

because this is constituted upon a certain portion of the immovable. (unlike a usufruct)

- Registration of the dominant estate under the Torrens system without registration of
the voluntary easements in its favor, does not end the easement.
- But registration of the servient estate without registration of the easement burdening
it, ends the voluntary easement. (Unisource Commercial etc. v. Chung, 593 SCRA 230)

Exception:
a.) Actual knowledge of the existence of the easement by grantee or transferee of the
servient estate at the time of purchase, is equivalent to registration. He will be bound
by it, even if no registration has been made. He cannot also claim indemnity.

b.) There is an understanding or stipulation among the parties that the easement would
continue to exist.

Discuss: Purugganan v. Paredes et al., L-23818, Jan 21, 1976

e.) EASEMENT IS INDIVISIBLE – even if the tenement (real property) is divided.

o Art. 618. Easements are indivisible. 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.

(illustrate by example or case discussion …)

6
f.) EASEMENT IS A LIMITATION OR ENCUMBRANCE ON THE SERVIENT ESTATE TO
BENEFIT ANOTHER.

Art. 613, par. 1. An easement or servitude is an encumbrance imposed upon an

immovable for the benefit of another immovable belonging to a different owner.

o Confers use and benefit to the Dominant estate, which may be exercised or not
o Easement is an abnormal restriction on ownership of the servient estate. Thus,
cannot be presumed. It has to be established by law or by the will of the owners. (Art.
619)

g.) EASEMENT MAY BE PERPETUAL – as long as the dominant and/or the servient estate
exists, unless ended by causes enumerated in the law such as the Modes of Extinguishment
of Easements stated in Art. 631.

Section 2
MODES OF ACQUIRING EASEMENTS

Q. What are the Two Modes of Acquiring Easements?

1. By TITLE
2. By PRESCRIPTION

I. EASEMENT ACQUIRED BY TITLE

o Art. 620. Continuous and apparent easements are acquired by virtue of a title or by
prescription of ten years.

o Art. 622. Continuous non-apparent easements and discontinuous ones, whether

apparent or not, may be acquired by virtue of a title.

Meaning of Title - in Arts. 620, 622

o Title does not necessarily mean document.
o It means a juridical act or law sufficient to create the encumbrance.
o Examples: donation, testamentary succession, contract, law, expropriation

Discuss: EASEMENT ACQUIRED BY TITLE

o All kinds of easements can be created or acquired by title -
a. Continuous and apparent easements (by title and prescription Art.620)
b. Continuous and non-apparent easements (only by title - Art. 622)
c. Discontinuous and apparent easements (id)
d. Discontinuous and non-apparent easements (id)

Discuss: Bogo-Medellin Milling Co., Inc., vs. CA, G.R. No. 124699. July 31, 2003 (report case)

7
o EQUIVALENTS OF TITLE - HOW EASEMENT IS ACQUIRED

1. DEED OF RECOGNITION (Article 623)

Art. 623. The absence of a document or proof showing the origin of an easement
which cannot be acquired by prescription may be cured by a deed of recognition
by the owner of the servient estate or by a final judgment.

2. FINAL JUDGMENT (Article 623)

3. APPARENT SIGN (Article 624)

Art. 624. 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.

RULES in Art. 624 re acquisition of easement title thru principle of APPARENT SIGN OF
EASEMENT:
a.) BEFORE alienation, there is no true easement as there is only one owner of the two
estates. (see Art. 613 - nature of easement)

b.) AFTER alienation – Easement arises if the sign continues to remain after either of the
two estates is alienated.

Exceptions: (that is - no easement exists)

o If at the time the ownership of the two estates is divided -
i) a contrary agreement is provided in the title or deed of conveyance.
ii) if the sign is removed before execution of the deed

NOTA BENE:

1. Rules in Article 624 will not apply if both estates are alienated to the Same owner/person,
for then there would be no true easement unless there is further alienation, this time, to
different persons/owners.

2. Article 624 provides ―”The existence…as title in order that the easement may
continue…”

o Comment: Civil law authors observed that, the use of the word ―”continue” is wrong. It
should be ―the easement may “arise” since there is no easement yet. There is no easement
yet, since both properties have only 1 owner. There are only seeds of a potential easement.
Easement will only arise once the property is divided and alienated to another owner.
8
 DISCUSS Cases of: Valisno v. Adriano, GR 37409, May 23, 1988, pp.667-668
o Amor v. Florentino, 74 Phil. 404; Juan Gargantos v. Tan Yanon

II. EASEMENT ACQUIRED By PRESCRIPTION

Art. 620. Continuous and apparent easements are acquired by virtue of a title or by
prescription of ten years.

Art. 621. In order to acquire by prescription the easements referred to in the preceding
article, the time of possession shall be computed thus:

in positive easement, from the day on which the owner of the dominant estate, or the
person who may have made use of the easement, commenced to exercise it upon the
servient estate;

and in negative easements, from the day on which the owner of the dominant estate
forbade, by an instrument acknowledged before a notary public, the owner of the servient
estate, from executing an act which would be lawful without the easement.

Q. What kind of easements may be acquired by prescription?

o ONLY continuous and apparent easements may be acquired by prescription.
o For an easement to be acquired by prescription, good faith or bad faith is irrelevant.
o Easement can be acquired by prescription after the lapse of 10years.

o Counting of the 10 year prescriptive period shall be as follows:

a.) If the easement is positive, period is counted from the day the dominant estate began
to exercise it. (Example: Window in a party wall, from the day the opening or window was
built.)

b.) If the easement is negative, the period is counted from the time the Notarial
Prohibition was made on the servient estate.

o The dominant estate, thru its owner, legal representative, usufructuary or

possessor, who wants to establish the easement shall make the notarial prohibition.

o Negative easements can be acquired by prescription even if they are non-apparent

under Art. 621 because of the making of notarial prohibition, the latter making
apparent what is non-apparent.

9
NOTE :

Most easements are clearly positive or negative easements. However, an EASEMENT OF

LIGHT AND VIEW IS BOTH A POSITIVE AND A NEGATIVE EASEMENT. There are special
rules to determine the counting of the prescriptive period.

a.) Start counting from the 1st act constituting the exercise of the easement was
performed – if the opening through which the light and view passes is a party wall.

Rationale: If the neighbor does not like the opening, he can always close it.

b.) Start counting from the time when the owner of the dominant estate serves a notarial
prohibition on the owner of the prospective servient estate – if the opening is made
on the dominant owner‘s own wall.

Rationale: The neighbor cannot close the opening since it‘s in the dominant
owner‘s property.

1. Relova v. Lavarez, 9 Phil. 149 – dam in Lavarez’ estate used to supply water to riceland of
Relova for 30 years by; prescription has set in – canot be destroyed by Lavarez

2. Emeteria Liwag, vs. Happy Glen Loop Homeowners Association, Inc., G. R. No. 189755 ,
July 4, 2012 -

Art. 625. Upon establishment of an easement, all the rights necessary for its use are
considered granted.

Example: Article 641. An easement for drawing water may carry with it the easement of right of
way. If the well is in the middle of someone else‘s property how can one draw water
without having to pass through that person‘s land?

Note:
1. To prejudice or affect 3rd parties, voluntary easements must be registered.
2. For legal easements registration is not generally essential for this exists as a matter of
law and necessity. (example: easement of water –lower estate obliged to receive water from
higher estate)

Q. Once an easement is established, can a dominant estate owner allow others to use the
easement granted him, or use it in any other manner beyond what was previously
established between the parties?

Art. 626. The owner of the dominant estate cannot use the easement except for the
benefit of the immovable originally contemplated. Neither can he exercise the easement
in any other manner than that previously established.
10
  Illustrate: A has a right of way over estate of B. Later, A acquired estate C. Can estate
C (owned by A) now also enjoy the right of way over estate B since C is now owned by
A?
Ans: NO. Apply Art. 626 (also cite/add Art. 627)

 Article 626 was meant to correct the SC ruling in - VALDERRAMA, RODRIGUEZ, URRA vs.
NORTH NEGROS SUGAR CO., INC. , G.R. NO. L-23810-12, December 18, 1925 (48 PHIL. 482)

FACTS: Valderrama executed a contract with North Negros (NNSC) whereby NNSC agreed
to install a sugar central of minimum capacity of 300 tons for grinding and milling all sugar
cane grown by Valderrama who in turn bound himself to furnish the central all the cane they
need for sugar production. NNSC constructed a railroad on Valderrama‘s land to transport
the sugarcane harvested. However, Valderrama was unable to supply the required amount
of sugarcane. NNSC had to contract with other sugar cane growers from Cadiz who
delivered to NNSC using the railroad that passes thru land of Valderrama.

Valderrama alleged that the easement granted in favor of North Negros Sugar was only for
the transportation of the sugarcane of Valderrama. By transporting upon the road, through
the servient estates, the cane of the planters of Cadiz, this alters the easement, making it
more burdensome.

HELD: The SC said that the easement was created to enable NNSC to build and maintain a
railroad for transportation of sugar cane. To limit use exclusively to the cane of the hacienda
owners would make the contract ineffective. Furthermore, it is against the nature of the
easement to pretend that it was established in favour of the servient estates.

The easement was created in favor of the dominant estate owner/corporation NNSC and not
for the hacienda owners. It is true that the owner of the dominant estate, in making on the
servient estate the necessary works for the use and preservation of the easement, cannot
alter it, nor make it more burdensome (art. 543 of the Civil Code); but this does not mean
that the defendant cannot transport in the wagons passing upon the railroad other cane that
of the plaintiffs. What is prohibited by the legal provision above cited is that the defendant, in
excavations or building materials outside of the area of 7 meters, because in the first case,
the easement will be altered, and in the second it would become more burdensome. But
nothing of the kind happens when the defendant transport on the railroad, crossing the
servient estates, the cane of the planters of Cadiz; the railroad continues to occupy the same
area on the servient estates, and the incumbrance resulting from the easement continues to
be the same, whether the tractors traverse the line 10, 20 or 30 times a day transporting
cane for the central.

 Comment: Since the easement for right of way was created thru a Voluntary Easement or
contract, the solution to the problem in Valderrama vs. NNSC would have been to stipulate in
the contract of easement the terms and conditions on the use of the easement, and grounds for
termination of the easement.

11
 Section 3

RIGHTS AND OBLIGATIONS OF THE OWNERS

OF THE DOMINANT AND SERVIENT ESTATES

Q. What are the requirements, limitations or restrictions to the owner of the dominant estate in
case he makes any work necessary for the use or preservation of the easement?

Art 627. The owner of the dominant estate may make, at his own expense, on the servient
estate any works necessary for the use and preservation of the servitude, but without
altering it or rendering it more burdensome.

For this purpose he shall notify the owner of the servient estate, and shall choose the
most convenient time and manner so as to cause the least inconvenience to the owner of
the servient estate.

o Study/Discuss: Goldcrest Realty Corp. vs. Cypress Gardens Condominium Corp., 584 SCRA 435

Art. 628. Should there be several dominant estates, the owners of all of them, shall be
obliged to contribute to the expenses referred to in the preceding article, in proportion to
the benefits which each may derive from the work. Any one who does not wish to
contribute may exempt himself by renouncing the easement for the benefit of the others.

If the owner of the servient estate should make use of the easement in any manner
whatsoever, he shall also be obliged to contribute to the expense in the proportion
stated, saving an agreement to the contrary.

o Rules about proportionate contributions by the dominant estates.

Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever the
use of the servitude.

Nevertheless, if by reason of the place originally assigned, or of the manner

established for the use of the easement, the same should become very inconvenient to
the owner of the servient estate, or should prevent him from making any important works,
repairs or improvements thereon, it may be changed at his expense, provided he offers
another place or manner equally convenient and in such a way that no injury is caused
thereby to the owner of the dominant estate or to those who may have a right to the use
of the easement.

This article is about – “how and when can the place of the easement may be changed by the
servient estate”.

12
Art. 630. The owner of the servient estate retains the ownership of the portion on which
the easement is established, and may use the same in such a manner as not to affect the
exercise of the easement.

See SUMMARY of the Rights and Obligations of Dominant and Servient Estates, pp. 675-676,
Paras, Vol. 2, 16th ed.,

Section 4
MODES OF EXTINGUISHMENT OF EASEMENTS

Art. 631. Easements are extinguished:

(2) By merger in the same person of the ownership of the dominant and servient
estates;

(3) By non-user for ten years;

with respect to discontinuous easements, this period shall be computed from the
day on which they ceased to be used;

and, with respect to continuous easements from the day on which an act contrary
to the same took place;

(4) When either or both of the estates fall into such condition that the easement
cannot be used;

but it shall revive if the subsequent condition of the estates or either of them
should again permit its use,

unless when the use becomes possible, sufficient time for prescription has
elapsed, in accordance with the provisions of the preceding number;

(5) By the expiration of the term or the fulfillment of the condition, if the easement is
temporary or conditional;

(6) By the renunciation of the owner of the dominant estate;

(7) By the redemption agreed upon between the owners of the dominant and servient
estates.

See pp. 677- 682 details of discussion of how easements are ended.

13
Other causes for ending easement is thru –
a.) Expropriation of the servient estate
b.) Permanent impossibility to make use of the easement
c.) Annulment, rescission or cancellation of the title that constituted the easement.
d.) Abandonment of the servient estate
e.) Resolution of the right of the grantor to create the easement as when there is redemption
of the property sold a retro because of the exercise of the right of conventional
redemption.
f.) Registration of the servient estate as free from any easement, unless there is knowledge
and stipulation on the existence of the easement on the part of the transferee.
g.) In case of legal easement of right of way, the opening of an adequate outlet to the
highway ends the easement, if the servient estate owner demands it.

Art. 632. The form or manner of using the easement may prescribe as the easement itself,
and in the same way.

See discussion pp. 682, and case of Ongsiako et al. v. Ongsiako, et al, l7510, Mar. 30, 1957 pp.
682-682

Art. 633. If the dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the others.

The use by one co-owner of the dominant estate benefits the other co-owners. Hence, there will
be no prescription due to non-use, with respect to their own shares.

14
15