PROPERTY

USUFRUCT ARTS. 562-612

Art. 562. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

What is usufruct?◦ A right to enjoy the property of another with the

obligation of preserving its form and substance.◦ Right to enjoy the property of another

temporarily, including both the jus utendi and jus fruendi, with the owner retaining the jus disponendi

◦ In essence, usufruct is nothing else but simply allowing one to enjoy another’s property.

USUFRUCT IN GENERAL

CHARACTERISTICS OR ELEMENTS:1. Essential- those without which it cannot be

termed usufruct. a) It is a real right (whether registered in the Registry

of Property or not)b) It is of temporary nature or durationc) Its purpose is to enjoy the benefits and derive all

advantages from the object as a consequence of normal use or exploitation.

2. Natural- that which ordinarily is present, but a contrary stipulation can eliminate it because it is not essentiala) The obligation of conserving or preserving the form

and substance (value) of the thing.

3. Accidental- those which may be present or absent depending upon the stipulation of the partiesa) Whether it be a pure or a conditional

usufructb) The number of years it will existc) Whether it is in favor of one person or

several, etc.

Usufruct Lease

Nature of right Real Personal

Creator of right Can be created only by the owner, or by a duly authorized agent

The lessor may or may not be the owner as when there is a sub-lease or when the lessor is only a usufructuary

Origin May be by law, by contract, by will of testator, or by prescription

GR: by contractXPN: By law, (as in the case of an implied new lease, or when a builder has built in good faith on the land of another a building, when the land is considerably worth more in value than the building.

Extent of enjoyment All the fruits and all the uses and benefits of the entire property (generally)

Certain uses only (those stipulated)

Cause More or less passive owner who allows the usufructuary to enjoy the object

Active owner or lessor who makes the lessee enjoy

Repairs and taxes Usufructuary to pay Lessee not generally under the obligation to pay taxes or undertake repairs

Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription. (468)

CREATION OF USUSFRUCT◦Usufruct may be classified according to

how it is created into:1. Legal, or that created or declared by law2. Voluntary, or that created by will of the

parties (an act inter vivos or an act mortis causa)

3. Mixed or that acquired by prescription

KINDS OF USUFRUCTUARY◦ Usufruct may be

1. As to extent of object

Total (constituted on the whole of a thing)

Partial (constituted only on a part of a thing)

2. As to number of beneficiaries

Simple (only one) Multiple (several

usufructuaries) Simultaneous, or Successive

3. As to effectivity or extinguishment

Pure With a term (may be

suspensive or resolutory)

Conditional (may be suspensive or resolutory)

4. As to subject matter

Over things (tangible property)

Over rights (intangible property which are not intransmissible)

RIGHTS OF THE USUFRUCTUARY Art. 566. The usufructuary shall be entitled to all the

natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. (471)

Classifications of the rights of the usufructuary◦ As to the thing and its fruits To receive the fruits of the property in usufruct and half of the

hidden treasure he accidentally finds on the property To enjoy any increase which the thing in usufruct may acquire

through accession To personally enjoy the thing in usufruct or lease it to another To make on the property in usufruct such improvements or

expenses he may deem property and to remove the improvements provided no damage is caused to the property

To set-off the improvements he may have made on the property against any damage to the same

To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital

◦As to the usufruct itself To alienate (or mortgage) the right of usufruct

except parental usufruct In a usufruct to recover property or a real

right, to bring the action and to oblige the owner thereof to give him proper authority and necessary proof, and

In a usufruct of part of a common property, to exercise all the rights pertaining to the co-owner with respect to the administration and collection of fruits or interests from the property

◦ As to advances and damages To be reimbursed for indispensable extraordinary

repairs made by him in an amount equal to the increase in value which the property may have acquired by reason of such repairs

To be reimbursed for taxes on the capital advanced by him, and

To be indemnified for damages caused to him by the naked owner.

The usufructuary is given the right to enjoy the property in usufruct and he is entitled to the fruits. The usufructuary has the right to receive all the fruits except:◦ where the usufruct is constituted only on a part of the

fruits of a thing or ◦ where there is an agreement to the contrary.

The naked owner retains and can exercise all the rights as owner over the property limited only by the right of enjoyment of the usufructuary.

Products which when taken from the property diminishes its substance are not to be treated as fruits. They form part of the capital and belong to the naked owner, and not to the usufructuary in the absence of a contrary intent between the parties.

The usufructuary is not entitled to any hidden treasure because it’s not considered as ‘fruits’. However, as a stranger, he is entitled to ½ if he is the finder.

RIGHT OF THE USUFRUCTUARY TO PENDING NATURAL AND INDUSTRIAL FRUITS (ART. 567)

◦ This article does not apply to civil fruits.

◦ For fruits growing at the beginning of usufruct, they belong to the usufructuary who is not bound to refund to the owner the expenses of cultivation and production incurred. However, in case the expenses were incurred by innocent third persons,

the usufructuary under Art 443, pursuant to the last paragraph of Art 567, has the obligation to pay the expenses made.

◦ For fruits growing at the termination of the usufruct, they belong to the owner but he is bound to reimburse the usufructuary the ordinary cultivation expenses out of the fruits received.

◦ Manresa opines that if at the termination of the usufruct, force majeure should prevent the usufructuary from gathering the fruits, said fruits shall belong to him and not the naked owner.

LEASE BY THE USUFRUCTUARY

◦The usufructuary may lease the property in usufruct to another.

◦If the usufrcut should expire before the termination of the lease, the usufructuary or his heirs and successors are entitled only to the rents corresponding to the duration of the usufruct. The rents for the remaining period of the lease belong to the owner.

USUFRUCT CONSTITUTED ON CERTAIN RIGHTS (Art. 570)◦ Every benefit or payment shall be considered

and distributed as civil fruit of such right. ◦ Payment and benefits that accrue after the

termination of the usufruct belong to the owner.◦ The date when the benefits accrue determines

whether they should belong to the usufructuary or to the owner. Art 570 applies whether or not the date of distribution of benefits is fixed.

◦ Case doctrine A stock dividend is considered civil fruit and

belongs to the usufructuary. (Bachrach v Seifert)

Art. 571. The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent therein. (479)

EXETENT OF RIGHTS OF USUFRUCTUARY◦ The usufructuary is generally entitled to all the

benefits that the thing in usufruct can give including any increase by accession and servitudes established in his favor.

◦ Reason is that usufruct covers the entire jus fruendi and jus utendi.

TRANSACTIONS BY THE USUFRUCTUARY (ART 572)

◦ With respect to the thing in usufruct, he may lease it even without the owner’s consent but not being the owner, the usufructuary cannot alienate, pledge or mortgage the thing itself. He may sell future crops subject to the rule that those ungathered at the time when the usufruct terminates belong to the owner.

◦ When the things given in usufruct cannot be used without being consumed or were appraised when delivered, the usufructuary may dispose of them.

◦ With respect to the right of usufruct, since the usufructuary is the owner of the right itselt, he may alienate, pledge or mortgage it, even by gratuitous title.

But the legal usufruct of the parent over his or her unemancipated children cannot be alienated, pledged, or mortgaged for the right is personal and intransmissible burdened as it is by important obligations of the parent for the benefit of the children.

A usufruct given in consideration of the person of the usufructuary to last during his lifetime is also personal, and therefore, intransmissible.

As a rule, all contracts entered into by the usufructuary shall terminate upon the expiration of the usufruct or earlier, except rural leases which continue during the agricultural year.

◦ Case doctrine A usufructuary of rents, as a corollary to the right to all the

rents, to choose the tenant, and to fix the amount of the rent, necessarily has the right to choose himself as the tenant, provided that the obligations he has assumed towards the owner of the property are fulfilled. (Fabie v David)

USUFRUCT ON THINGS WHICH GRADUALLY DETERIORATE (ART. 573)

◦ This article gives an instance of abnormal usufruct because in the enjoyment of the property the usufructuary cannot preserve its form or substance.

◦ Here the thing gradually deteriorates through wear and tear or normal use.

◦ The usufructuary is not responsible for the deterioration due to wear and tear nor is he required to make any repairs to restore it to its formal condition. He needs only to return the thing at the termination of the usufruct in the condition it may be at that time.

◦ The usufructuary is liable for damage suffered by the thing by reason of his fraud or negligence although such liability may be set-off against the improvements he may have made on the property.

◦ The usufructuary does not answer for deterioration due to a fortuitous event. He is, however, obligated to make the ordinary repairs needed by the thing.

USUFRUCT ON CONSUMABLE THINGS (ART. 574)◦This is another instance of abnormal usufruct

because the thing in usufruct cannot be used without being consumed, like money (but that’s really a simple loan, where the usufructuary can deal with the money as owner.)

◦The usufructuary shall have the right to make use of the consumable thing.

◦At the termination of the usufruct, he must: Pay its appraised value or If there was no appraisal made, either:

Return the same quantity and quality, or Pay its current price at such termination.

USUFRUCT OF JUDICIAL ACTION TO RECOVER (ART. 578)◦ This article applies if the purpose of the action is

to recover real property or personal property or real right over real or personal property.

◦ The action may be instituted in the name of the usufructuary (vs an agent who institutes the action in the name of the principal).

◦ The usufructuary may oblige the owner to give him the necessary authority to bring the action .

◦ In case of favorable judgment, the usufruct shall be limited to the fruits, with the naked ownership belonging to the owner. With the termination of the case, the usufruct of the action comes to an end.

RIGHT TO USEFUL AND ORNAMENTAL IMPROVEMENTS◦ Right to Introduce Improvements:

Usufructuary has the right to introduce improvements on the property held in usufruct;

Whether the same be a useful improvement or for mere pleasure;

Subject to the limitation that he cannot alter the form or substance of the property. (Art. 579)

◦ No right to demand reimbursement. Upon the termination of the usufruct, the usufructuary is not entitled to seek reimbursement for the expenses which he incurred in connection with the aforesaid improvements.

◦ Right which may be exercised over improvement: In relation to such improvements, the only

rights that may be exercised by the usufructuary are:1. He may, at his option remove the improvements if

such removal is possible without damage to the property; and

2. He may set-off the improvements against any damage he has caused to the property held in usufruct.

◦ Right to remove: The right of the usufructuary to remove the improvements is something potestative with him. He may choose not to exercise it, in which case, he may not be compelled to do so by the owner. In the event, however, that he decides to exercise such right, he may not be prevented by the owner from doing so, even if the latter offers to pay for the value of such improvements.

RIGHTS AND OBLIGATIONS OF THE NAKED OWNER◦ The naked owner may alienate the property in usufruct because the

title (dominium directum) remains vested in him.

◦ He may construct works, make improvements, or make new plantings on the property in usufruct.

◦ The alienation by the naked owner cannot affect the usufruct which is registered or known to the transferee.

◦ The naked owner, however, cannot: alter the form or substance of the property, or do anything thereon which may cause a diminution in the value of the

usufruct, or be prejudicial to the rights of the usufructuary,

otherwise, he shall be liable for damages.

◦ The naked owner must: Respect leases of rural lands by the usufructuary for the balance of the

agricultural year (Art 572) Reimburse him for advances made for extraordinary repairs (Art 594), and Reimburse him for taxes on the capital (Art 597)

USUFRUCT OF PART OF COMMON PROPERTY (ART. 582)◦ In case a co-owner gives the usufruct of his

share to a person, the usufructuary shall exercise all the rights pertaining to the co-owner regarding the administration and the collection of the fruits or interest from the property

◦ The usufructuary shall be bound by the partition made by the owners of the undivided property although he took no part in the partition but the naked owner to whom the part held in usufruct has been allotted must respect the usufruct.

OBLIGATIONS OF THE USUFRUCTUARY◦ Classifications of obligations of the usufructuary

1. Those before the usufruct beginsa) Make an inventory of the property, which shall contain

an appraisal of the movables and a description of the immovables

b) Give security Exemption from the obligation to give security:

1. When the donor has reserved the usufruct of the property donated; and

2. In case of legal usufruct of the parents over the property of their minor children living in their custody and their parental authority, except when the parents contract a second marriage or when the market value of the property of the annual income of the child exceeds P50,000.

Instances when Usufructuary may be relieved of obligations to give security:1. When no one will be injured.2. When the enjoyment of the property subject of the usufruct

is to be acquired through caucion juratoria.

2. Those during the usufructa) Take care of the property (Art 589)b) To replace with the young thereof animals that die

or are lost in certain cases when the usufruct is constituted on flock or herd of livestock (Art 591)

c) To make ordinary repairs (Art 592, par 1)d) To notify the owner of urgent extraordinary repairs

(Art 593)e) To permit works and improvements by the naked

owner not prejudicial to the usufruct (Art 595)f) To pay annual taxes and charges on the fruits (Art

596)g) To pay interest on taxes on capital paid by the

naked owner (Art 597)

h) To pay debts when the usufruct is constituted on the whole of a patrimony (Art 598)

i) To secure the naked owner’s or court’s approval to collect credits in certain cases (Art 599)

j) To notify the owner of any prejudicial act committed by third persons (Art 601)

k) To pay for court expenses and costs regarding usufruct (Art 602)

3. Those at the termination of the usufructa) To return the thing in usufruct to the naked owner

unless there is a right of retention (Art 612)b) To pay legal interest for the time that the usufruct

lasts, on the amount spent by the owner for extraordinary repairs (Art 594) and the proper interest on the sums paid as taxes by the owner (Art 597), and

c) To indemnify the naked owner for any losses due to his negligence or of his transferees. (Art 589-590)

EXTINGUISHMENT OF USUFRUCT◦ Causes or Grounds:

a. By the death of the usufructuary , unless contrary intention clearly appears;

b. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct;

c. By merger of the usufruct and the ownership in the same person;

d. By renunciation of the usufructuary;e. By the total loss of the thing in usufruct;f. By the termination of the right of the person constituting the

usufruct;g. By prescription,

Aside from the foregoing causes, usufruct is also extinguished: (1) by the noncompliance with any condition agreed upon by the parties as grounds for terminating the usufruct; (2) by the rescission or annulment of the contract which is the source of the right of usufruct; and (3) by any causes which extinguish legal usufruct.

Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part. (514)

◦To extinguish a usufruct, the loss must be total, except as provided in Art 607 to 609

◦If the loss in only partial, the usufruct continues with the remaining part. But if the partial loss may be so important as to be considered total loss, the courts shall determine.

◦ Usufruct cannot be constituted in favor of a town, corporation or association for more than 50 years.

◦ Usufruct constituted on immovable whereby a building is erected and the building is destroyed- the usufruct is not extinguished an the usufructuary has the right to make use of the land and the materials.

◦ If the owner wishes to construct another building- he has the right to occupy the land and to make use of the materials, in which case, he shall be obliged to pay the usufructuary, during the continuance of the usufruct , the interest upon the sum equivalent to the value of the land and the materials.

◦ If the building had been insured and the usufructuary shared in the payment of the insurance- the usufructuary shall continue in the enjoyment of the new building should one be constructed or shall receive the interest on the insurance indemnity if the owner does not wish to rebuild.

◦ If the owner alone paid the insurance- the owner is entitled to the full amount of the insurance indemnity, but the usufruct continues over the land and the materials of the building or in case the owner chooses to rebuild the building, the usufructuary is entitled only to the legal interest in the value of the land and the materials but has no right to the new building.

◦ Effect of Bad Use of the thing: A usufruct is not extinguished by bad use of

the thing held in usufruct.

If the bad use or abuse of the thing should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.

EASEMENTS OR SERVITUDES

EASEMENT OR SERVITUDE DEFINED◦ Easement or servitude has been defined as a “real

right constituted on another’s property, corporeal and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.”

◦ The definition in this article is not complete, being limited to real easement.

◦ In view of the next article which refers to personal easement, the term may be defined as an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the encumbered estate does not belong by virtue of which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate.

ESSENTIAL FEATURES◦ 1. It is a real right – it gives an action in rem

or real action against any possessor of the servient estate Owner of the dominant estate can file a real

action for enforcement of right to an easement Action in rem: an action against the thing

itself, instead of against the person.

◦ 2. It is a right enjoyed over another property (jus in re aliena) – it cannot exist in one’s property (nulli res sua servit) When a dominant and servient estate have the

same owner, an easement is extinguished. Separate ownership is a prerequisite to an easement

◦3. It is a right constituted over an immovable by nature (land and buildings), not over movables. (Article 613) Immovable: used in its common and not in the legal

sense, meaning only property immovable BY NATURE can have easements.

◦4. It limits the servient owner’s right of ownership for the benefit of the dominant estate. Right of limited use but no right to possess servient

estate. There exists a limitation on ownership: the dominant

owner is allowed to enjoy or use part of the servient estate, or imposes on the owner a restriction as to his enjoyment of his own property. Being an abnormal limitation of ownership, it cannot be

presumed.

◦ 5. It creates a relation between tenements No transfer of ownership, but a relationship is created,

depending on the easement.

◦ 6. Generally, it may consist in the owner of the dominant estate demanding that the owner of the servient estate refrain from doing something (servitus in non faciendo) or that the latter permit that something be done over the servient property (servitus in patendo), but not in the right to demand that the owner of the servient right to demand that the owner of the servient estate do something(servitus in faciendo) except if such act is an accessory obligation to a preadial servitude (obligation propter rem) Servient owner merely allows something to be done to his estate. EXCEPTIONS: Praedial servitudes

a. Right to place beams in an adjoining wall to support a structure

b. Right to use another’s wall to support a building

◦7. It is inherent or inseparable from estate to which they actively or passively belong Easements are merely accessory to the

tenements, and a “quality thereof.” They cannot exist without tenements.

Easements exist even if they are not expressly stated or annotated as an encumbrance of the titles.

◦8. It is intransmissible – it cannot be alienated separately from the tenement affected or benefited Any alienation of the property covered carries

with it the servitudes affecting said property. But this affects only the portion of the tenement with the easement, meaning the portions unaffected can be alienated without the servitude.

◦9. It is indivisible Art. 618, Civil Code. 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.

◦10. It has permanence – once it attaches, whether used or not, it continues and may be used at anytime Perpetual: exists as long as property exists, unless

it is extinguished.

Classification of Servitudes1. As to recipient of benefits

a. Real or Praedial: exists for the benefit of a particular tenement.

b. Personal: exists for the benefit of persons without a dominant tenement ,e.g. usus habitatio (right to reside in a house) and operae servorum (right to the labor of slaves) in Roman Law

2. As to cause or origina. Legal: created by law, whether for public use or for

the interest of private persons Once requisites are satisfied, the owner of the

dominant estate may ask the Court to declare that an easement is created.

Example: Natural drainage of waters, Abutment of land, Aqueduct, etc.

b. Voluntary: Created by the will of the owners of the estate through contract

There is no such thing as a JUDICIAL EASEMENT. The Courts cannot create easements, they can only declare the existence of one, if it exists by virtue of the law or will of the parties.

3. As to its exercise (Article 615) This classification is important in determining

prescription: only continuous and apparent easements can be created by prescription Continuous: Use is or may be incessant, without the

intervention of any man Discontinuous: Used at intervals, and dependent

upon the acts of man.

4. As indication of its existence Also important for purposes of prescription

Apparent: Made known and continually kept in view by external signs that reveal the use and enjoyment of the same

Non-apparent: No external indication of their existence

5. By the object or obligation imposed (Article 616)a. Positive: Imposes upon the owner of the servient estate

the obligation of allowing something to be done, or doing it himself.

b. Negative: Prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

Prescription starts to run from service of notarial prohibition)

e.g. Negative Easement of Light and View: An opening is made on the wall of the dominant estate, and the easement consists of imposing upon the servient estate the obligation to not build anything that would obstruct the light

General Rules Relating to Servitudes1. Nulli res sua servi: No one can have a servitude over

one’s own property2. Servitus in faciendo consistere nequit: A servitude

cannot consist in doing Although some easements seem to impose a positive

prestation upon the owner of the servient estate, in reality, the primary obligation is still negative.

Illustration: Under Article 680: the owner of a tree whose branches extend over to a neighboring property is required to cut off the extended branches, but the real essence of the easement is the obligation NOT TO ALLOW the branches of the tree to extend beyond the land

3. Servitus servitutes esse non potes: There can be no servitude over another servitude

4. A servitude must be exercised civiliter – in a way least burdensome to the owner of the land

5. A servitude must have a perpetual cause

Acquisition of Easement:1. By title. All easements.

a. Continuous and apparent easements (Art 620)b. Continuous and non-apparent easements (Art

622)c. Discontinuous easements, whether apparent

or non-apparent

2. By prescription of ten years – only continuous and apparent easements

3. By deed of recognition (Art 623)4. By final judgment5. By apparent sign established by the owner

of two adjoining estates (Art 624)

◦Acquisition by title or prescription Only continuous and apparent easements may

be acquired either by virtue of a title or by prescription in 10 years.

By title, it refers to the juridical act which gives birth to the easement, such as law, donation, contract and will of the testator.

This article fixes ten years as the period of prescription, regardless of good faith or bad faith of the possessor and whether or not he has just title.

The general rules on prescription do not apply, the only requirement being that there be adverse possession of the easement for ten years.

Rights and Obligations of Owners of Dominant and Servient Estates◦A. Of Dominant Estate

1. Right of owner of dominant estate (Limited Jus Utendi: limited by the nature of the easement itself)

a. Exercise all rights necessary for the use of the easement (Art. 625, NCC)

b. Make on the servient estate all works necessary for the use and preservation of the servitude (Art. 627 par. 1, NCC)

c. Renounce the easement if he desire to exempt from contributing necessary expenses (Art 628, NCC)

d. Ask for mandatory injunction to prevent impairment of his right. (Resolme v. Lazo, 27 Phil. 416)

2. Obligations of the owner of dominant estate:

a. He cannot alter the easement or render it more burdensome. (Art 627 par. 1, NCC)

b. He shall notify the servient owner of works necessary for the use and preservation of the servitude. (Art. 627 par.2, NCC)

c. He must chhose the most convenient time and manner of making the necessary works as to cause the least inconvenience to the servient owner.

d. If there are several dominant estates, he must contribute to the necessay expenses in proportion to the benefits derived from the works.

◦B. Of Servient Estate1. Rights of owner of servient estate

a. Retain the ownership of the portion of the estate on which the easement is imposed

b. Make use of the easement unless there is an agreement to the contrary. (Art. 628 par 2, NCC)

c. Change the place or manner of the use of the easement, provided it be equally convenient. (Art 629 par. 2, NCC)

2. Obligations of the servient estated. He cannot impairt the use of the easement.e. He must contribute to the necessary expenses in

case he uses the easement, unless otherwise agreed upon. (Art 628 par. 2, NCC)

Extinguishment of Easements1. Merger of ownership of the dominant and servient

estate2. Annulment of the title to the servitude3. Redemption agreed upon4. Impossibility to use the easement5. Non-User: 10 years6. Expiration of the term or fulfillment of the resolutory

condition7. Bad Condition- when either or both estates fall into

such a condition that the easement could not be used.8. Resolution of the right of grantor to create the

easement (as when the vendor a retro redeems the land)

9. Expropriation of the servient state10. Waiver by the dominant owner gathered from the

positive acts.

Parties to an Easement

◦Dominant Estate- refers to the immovable for which the easement was established

◦Servient Estate- the estate which provides the service or the benefit.

◦A. Law governing legal easements1. For public easements

a. Special laws and regulations relatingthereto (ex: PD 1067 and PD 705)b. By the provisions of Chapter 2, Title VII, Book II, NCC

2. For private legal easementsa. By agreement of the interested parties whenever the law does not prohibit it and no injury is suffered by a 3rd person

b. By the provisions of Chapter 2, title VII, Book II

Legal Easements

◦ B. Private legal easements provided for by the NCC

THOSE ESTABLISHED FOR THE USE OF WATER OR EASEMENTS RELATING TO WATERS—

1. Natural drainage of watersa. REQUISITE: Waters must flow naturally, without the intervention of man

b. DUTIES: DOMINANT OWNER (HigherEstate) Cannot construct works to increase the burden e.g. canals

draining other lands into the lower estate, works which prevent absorption of water like pavements which make the ground more impervious than it is.

May demand that the servient owner allow him to make works necessary to remove obstructions impeding natural passage

SERVIENT OWNER (Lower Estate) Cannot make works which would impede the servitude e.g.

dams which would block the natural flow, walls, ditches that enclose the tenements.

Can construct works that he may deem necessary to prevent damage to himself, so long as he does not cause damage to inferior tenements

2.Easements on land along riverbanks

◦ Article 638, Civil Code. 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 navigation, floatage, fishing and salvage.

Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage.

If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid.

3. Abutment of a dam Easement of abutment of a dam may be

established after payment of proper indemnity. REQUISITES:

1. Construction of dam necessary for the use of any other continuous or discontinuous stream.

2. Person who is to construct the dam is NOT the owner of the banks or lands which must support the dam.

4. Stop lock and sluice gate REQUISITES:

1. Can be imposed only for reasons of public use in favor of a town or village;

2. After payment of proper indemnity

5.Aqueduct Any person wishing to use upon his own

estate any water can make it flow through intervening estates with obligation to indemnify owners of such estates

Considered as a continuous and apparent easement, even though the flow of water may not be continuous

Existing structures cannot be injured to establish the easement. RIGHT OF SERVIENT OWNER: May fence or

build over the aqueduct in such a manner as not to cause any damage, or render impossible any necessary repairs and cleanings

◦REQUISITES:1. That he can dispose of the water;2. That it is sufficient for the use for which it

is intended;3. That the proposed right of way is the most

convenient and the least onerous to third persons;

4. To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

Easement of Right of Way

◦ DEFINED Easement or privilege by which one person in a

particular class of persons is allowed to pass over another land, usually through one particular path or line

◦ REQUISITES1. The property is surrounded by estate of others and there

is no adequate outlet to a public highway;2. It must be established at the point least prejudicial to the

servient estate and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest;

3. There must be payment of the proper indemnity;4. The isolation should not be due to the proprietor’s own

acts

◦ PROPER INDEMNITY1. If the passage is permanent, pay the value of the land

occupied by the path plus damages;2. If temporary, pay for the damages caused

◦ CLASSIFICATION OF RIGHT OF WAY1. Private2. Public

Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. (565)

◦Art. 651. 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. (566a)

WIDTH OF PATH The width may be modified from time to time

depending on the reasonable needs of the dominant estate

RULE IF LAND OF VENDOR IS ISOLATED FROM THE HIGHWAY◦ Indemnity included in the purchase price—the

buyer is the owner of the dominant estate◦ Art. 653. In the case of the preceding article, if it is

the land of the grantor that becomes isolated, he may demand a right of way after paying a indemnity. However, the donor shall not be liable for indemnity. (n)

RULES IF GRANTOR OR GRANTEE’S LAND IS ENCLOSED

1. If the enclosing estate is that of the grantor, the grantee doesn’t pay indemnity for the easement.

2. If the enclosed estate is that of the grantor, the grantor must pay indemnity

OWNERSHIP OF, REPAIRS AND TAXES ON, THE PATH1. Even though permanent, the path belongs to

the servient estate, and he pays all the taxes2. But the dominant estate—

a. Should pay for repairsb. Should pay proportionate share of taxes to the servient estate

CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY1. Opening of a new road2. Joining the dominant estate to another

Easement of Party Wall◦PARTY WALL DEFINED Wall at the dividing line of estates Co-ownership governs the wall, hence,

the party wall is necessarily a common wall

◦Presumption of Party Wall A party wall is presumed when a wall

divides a. Adjoining buildings b. Gardens or yards situated in cities,

towns or in rural communities c. Rural lands

◦This presumption may be rebutted if there is a contrary

a. Title; or b. Exterior sign or

The following are exterior signs which will be rebut the presumption i. A window or opening in the dividing wall ii. On 1 side, the wall is straight and then the

wall juts out A buttress is placed part where the wall juts out. This

is done in order to prevent the neighbor from invading his property.

iii. The entire wall is built within the boundary of 1 of the estates (not along the boundary of the 2 estates)

iv. When the wall supports the building of 1 estate but not the other

v. When the dividing wall between the courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only 1 of the estates

vi. Stepping stones only on 1 side of the wall

vii. When 1 estate is enclosed but the other is not

c. Proof

◦ RULES

A. Cost of repairs and construction, maintenance of fences, hedges, ditches and drains shall be borne by ALL the owners of the lands or tenements EXCEPT: if the defects were occasioned only by one

owner

B. An owner may exempt himself from contributing to the expenses by renouncing his part-ownership, UNLESS the party wall supports a building he owns.

Renunciation refers not only to the wall, but also to the land on which it is constructed.

C. An owner of a building supported by a party wall who desires to demolish his building, may also renounce his part ownership of the wall.BUT he must still bear the cost of all the repairs and work necessary to prevent any damage to the party wall.

D. Every owner may increase the height of the wall, at his own expense and paying for damages caused by the work. He must also pay for:

1. Expenses of maintaining the wall in the part newly raised, or deepened foundation;

2. Indemnity for increased expenses necessary for the preservation of the wall by reason of the greater height or depth which has been given it.

3. Reconstruction expenses in case the party wall cannot bear the increased height.

4. If increased thickness is needed, the owner shall give the space required from his own land

5. Other owners may acquire part ownership of the increased height, depth or thickness of the wall, by paying proportionately the value of the work at the time of the acquisition, and of the land for its increased thickness

E. Part-owners may use the party wall IN PROPORTION to the right he may have in the co-ownership, without interfering with the common and respective uses of the others. E.g. A ½ interest in the wall = ½ payment for

expenses = ½ use as in one can insert beams in the wall up to ½ thickness

Easement of Light and View◦2 Different Easements 1. Easement of light (luminis)

The easement of light is the right to make an opening not greater than 30 centimeters square and to receive light from another‘s tenement.

The opening must be made on the ceiling or if on the wall, there must be an iron grating (so you can‘t look out, otherwise, it becomes an easement of light and view).

No minimum distance required.

2. Easement of light and view (luminis et prospectus) The easement of light and view is the right to open

windows and apertures and to bar the owner of the servient estate to block the view.

The easement of view necessarily carries with it the easement of light.

Direct View: There must be a minimum distance of 2 meters from the wall of the opening and the contiguous property.

Oblique View: There must be a minimum distance of 60 centimeters from the wall of the opening and the contiguous property.

Non-observance of the minimum distances will not create an easement.

The owner of the servient estate cannot build within 3 meters from the boundary between the servient and the dominant estate. Thus, there is 5 meters between the wall of the opening and any structure of the servient estate.

The obligation not to build higher accompanies the easements of light and view.

◦Acquiring by Prescription 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.

Drainage of Building◦ What is an easement of drainage of buildings?

Easement of drainage of buildings is the right to divert or empty the rain waters from the one’s own roof or shed to the neighbor’s estate either drop by drop or through conduits.

◦ Rainwater not to fall on land of another This article does not really create a servitude, it

merely regulates the use of one’s own property by imposing on him the obligation to collect its rain waters so as not to cause damage to his neighbors, even if he be a co-owner of the latter.

It’s an exemption to Article 637 which obliges lower estates to receive the waters which naturally flow from higher estates.

◦Easement giving outlet to rainwater where house surrounded by other houses The legal easement of drainage may be

demanded subject to the following conditions:

There must be no adequate outlet to the rainwater because the yard or court of a house is surrounded by other houses;

The outlet to the water must be at the point where egress is easiest, and establishing a conduit for drainage; and

There must be payment of proper indemnity.

Easement Against Nuisance ◦The Code considers the easement

against nuisance as negative because the proprietor or possessor is prohibited to do something which he could lawfully do were it not for the existence of the easement. However, a nuisance involves any act of ormission which is unlawful. So, these two articles are more of a restriction on the right of ownership than a true easement.

Lateral and Subjacent Support◦ Proprietor prohibited from making dangerous

excavations Support is lateral when the supported and the supporting

lands are divided by a vertical plane. Support is subjacent when the supported land is above and

the supporting land is beneath it. An owner, by virtue of his surface right, may make

excavations on his land, but his right is subject to the limitation in Article 684 that he shall not deprive any adjacent land or building of sufficient lateral or subjacent support.

Any stipulation or testamentary provision allowing excavations that violate Article 684 is void. The limitation applies not only to existing buildings but also to future constructions.

The notice required in Article 687 is mandatory except where there is actual knowledge of the proposed excavation.

The adjacent owner is entitled to injunctive relief and to damages for violation of the provisions.