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Property- Easements or Servitudes

Charlotte F. Gallego October 9, 2013

1. Give the rules on the easement of drainage of waters.

Easements relating to drainage of water are governed by Article 637 (easements on natural drainage of lands) and Article 674 of the Civil Code (easements on natural drainage of building).

Under Article 637 the lower estates are obliged to receive: a. Water which naturally and without the intervention of man descends from the higher estates, and b. The stones and earth carried by the waters. On the other hand, the owner of the servient estate cannot construct works that would impede the easement.

DUTIES OF THE DOMINANT ESTATE:

A. He cannot make works which will increase the burden

B. But he may construct works preventing erosion

C. If the descending waters are the result of artificial development or proceed from

industrial establishments recently set up, or are the overflow from irrigation dams, the

owner of the lower estate shall be entitled to compensation for his loss or damage.

Moreover Article 674 sets the restrictions with respect to the easement of drainage of building. The owner of a building should let the rain water fall on his own land, and not on the adjacent land, even if he be a co-owner of the latter. Rain water must be collected instead of just being allowed to drift to the adjacent or lower land.

2. May banks of rivers, even of private ownership, be subject to easement? What are the requisite legal distance according to the water code (PD 2067)?

Yes, as provided under Article 638, the banks of rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of public use in the general interest of navigations, floatage, fishing and salvage.

3. Can the easement relating to navigating and floatage exist even without compensation?

The proper indemnity shall first be paid if a private land is subjected to easements. Conversely, no indemnity is required if the land is of public ownership.

4. When may compulsory easement for drawing water or for watering animals be imposed? What obligation does such easement include?

The requirements needed in order that compulsory easements for drawing water or for watering animals to exist are the following:

a. It must be for public use

b. It must be in favor of a town or village.

c. The right must be sought not by one individual, but by the town or village, thru its legal representation.

d. There must be payment of the proper indemnity.

e. The right of way should have a maximum width of 10 meters.

Article 641 imposes the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall also include this service.

5. Will the easement of aqueduct prevent the owner of the servient estate from closing or fencing it or from building over the aqueduct?

The servient owner may still enclose or fence the servient estate, or even build over the aqueduct provided that no damage is caused, and it does not render necessary repairs and cleaning impossible.

6. Who is entitled to demand a right of way?

The right of way is demandable only by the owner or one with a real right like a usufructuary of an immovable, which is surrounded by other immovable pertaining to other persons and without adequate outlet to public highway.

7. Is the easement of right of way compulsory?

Yes, given that the requirements of law are present, and inasmuch as the easement is legal and voluntary (Jartol v. Court of Appeals October 22, 1982).

8. When may an easement of a right of way not compulsory?

The easement of right of way is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.

9. What is “proper indemnity” in the easement of right of way?

If the passage is permanent, pay the value of land occupied by the path plus damages, provided that upon extinction of the easement, the indemnity is returned without interest, for the interest is considered rent.

If temporary, pay for the damages caused by such encumbrance.

10.Where shall the easement of a right of way be established?

It shall be established at the point least prejudicial to the servient estate, or where the distance from the dominant estate to a public highway may be the shortest.

11.What should be the width of the easement of a right of way?

The width of the easement of a right of way shall depend upon the reasonable needs of the dominant estate, and this can be modified from time to time.

12.In case a piece of land acquired by sale, or partition is surrounded by other estates of the seller, or co-owner, may they be obliged to grant a right of way to the buyer or co-owner? Must the buyer pay indemnity?

Under Article 652, whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger or co-owner, he shall be obliged to grant a right of way without indemnity.

13.Suppose a piece of land donated is surrounded by other estates of the donor, may done demand the establishment of the right of way?

Yes, provided that the donor shall be indemnified by the done for the establishment of a right of way.

14.Suppose it is the grantor’s land that becomes isolated, may he demand a right of way?

If it is the land of the grantor that becomes isolated, he may demand a right of way after paying an indemnity.

15.What is the right of the owner of an estate who has to carry materials indispensable for the construction, repair of a building or to raise thereon scaffolding necessary for the work, through the estate of another?

The owner of such estate can demand an easement of right of way, and be permitted to carry materials indispensable for the construction, repair of a building or to raise thereon scaffolding necessary for the work upon payment of the proper indemnity.

16.What provisions in the civil code governs the compulsory easement of a right of way for the passage of livestock and for watering place for animals?

Art. 657. 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. 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. 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.

Art. 640. Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity.

Art. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service.

17.In what cases may the easemement of party wall be presumed?

Art. 659. The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary:

(1) In dividing walls of adjoining buildings up to the point of common elevation; (2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities; (3) In fences, walls and live hedges dividing rural lands.

18.What is the presumption if ditches or drains are opened between two estates?

Under Art. 661 ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary.

19.Who shall shoulder the cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches and drains owned in common?

The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements proportionately. Any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him.

20.May every owner increase the height of the party wall? What are the rules that govern such increase?

Yes, every owner may increase the height of the party wall provided that the following rules are followed:

a. He who desires to increase the height must do so at his own expense.

b. He must also pay for the necessary damages caused, even if the damage be temporary.

c. He must bear the costs of maintenance of the portion added.

d. He must pay for the increased cost of preservation.

e. He must reconstruct if original wall cannot bear the increased height.

f. He must give the additional space necessary, if wall is to be thickened.

21.May an easement of light and view be acquired by prescription? How shall the period of prescription for such easement be counted?

Yes, and easement of light and view may be acquired by prescription. It shall be counted (1) From the time of the opening of the window, if it is through a party wall; or (2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate.

22.Is express prohibition from obstructing light and view given to the owner of the adjacent lot by means of a letter sufficient basis for acquisitive prescription? What is the formal requirement, if any?

A letter is not a formal prohibition within the context of article 668, hence it cannot be a basis for acquisitive prescription. Notarial prohibition is required, and the counting of the period of prescription shall begin upon giving of notarial prohibition to the adjoining owner.

23.Give the rules and distances required in the making of windows, apertures, balconies, or other similar projections affording direct view towards the adjoining land or tenement.

For windows with direct views, observe at least 2 meters distance between the wall having the windows and the boundary line. Moreover, for windows having side or oblique views, observe a distance of at least 60 cms. between the boundary line and nearest edge of the window.

24.How should the owner of a building construct its roof or covering especially with regard to the fall of rainwater?

The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land on a street or public place, and not on the land of his neighbor.

25.How should trees, bushes, shrubs be planted near a tenement or piece of land belonging to another?

No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof the following rules shall be followed:

1. Tall trees2 meters from boundary line to center of tree

2. Small trees or shrubs50 centimeters from boundary line to center of tree or

shrub

26.If the branches of any tree should extend over to a neighboring estate is the owner of the latter estate legally allowed to cut the branches now extending over his property?

No, however If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property.

27.If the roots of a tree should extend into a neighboring estate, can the owner of the latter estate legally cut off the roots?

Yes, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property.

28.To whom do fruits naturally falling upon adjacent land belong? What about the fruits extending over the adjacent land but have not yet fallen, does the owner of the adjacent land given by law to gather them?

RULES AS TO FRUITS:

1. If the fruits still hang on the tree, they are still owned by the tree owner

2. It is only after they have naturally fallen that they belong to the owner of the

invaded land.

29.Every building or piece of land is deemed by law subject to what easement?

Every building or piece of land is subject to the easement against nuisance, which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.

30.How should a proprietor make an excavation upon his land?

The proprietor should make an excavation in a manner which shall not deprive any adjacent land or building of sufficient lateral or subjacent support.