Article 649 and 650 of the Civil Code – Legal Easement of Right of Way

right of way p

here’s an article from businessinquirer.net written by Ma. Soledad Deriquito – Mawis that is a big concern not only for individual owners but specially with the Government’s infrastructure project countrywide :

EASE MY WAY

Nero was the owner of a parcel of land, known as Lot No. 1 (dominant estate). Immediately behind his land is Lot No. 2, a swampy mangrove area owned by the Republic of the Philippines.

On both sides are Lot No. 3, registered under the name of a corporation and Lot No. 4, in the name of Luis. In front of Lot No. 1 is Lot No. 5 owned by William (servient estate), where the national highway ran along.

On one sunny morning, Nero handed a letter to William. He asked William for easement of right of way, as his lot was without adequate outlet to a public highway. Nero further claimed that the isolation of his property was not due to his own acts, but is just the natural consequence of its location. To Nero, the right of way he was claiming was at a point least prejudicial to William’s property.

Despite the fact that Nero was willing to pay its reasonable value or to swap a portion of his property, William refused.

William contends that Nero caused the isolation of his property because he bought the lot with notice that it had no access to the national highway and was surrounded by other lands.

William further claimed that Nero was in bad faith because Nero knew that he was already negotiating with the former owner of the dominant estate when Nero intervened and bought the property himself. William is also of the mindset that the shortest distance from the dominant estate to the public highway is not through his property.

Q: What is a dominant estate? What is a servient estate?

A: A dominant estate is that to which a servitude or easement is due, or for the benefit of which it exists. On the other hand, a servient estate, also known as servient tenement, is an estate in respect of which service is owning.

Q: What is easement?

A: An easement 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 or something to be done on his property, for the benefit of another person or tenement.

Q: What laws govern the conferment of the legal easement of right of way?

A: Articles 649 and 650 of the Civil Code are the laws that govern the conferment of the legal easement of right of way.

ART. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.

In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.

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

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.

Q: What are the requisites before one can be entitlement  to the easement of right of way?

A: The following are the requisites that must concur before one can be entitled to the easement of right of way.

Dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1);

There is payment of proper indemnity (Art. 649, par. 1);

Isolation is not due to acts of the proprietor of the dominant estate (Art. 649, last par.); and

The right of way claimed is 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 (Art. 650).

Q: Is Nero entitled to a legal easement of right of way?

A: Yes, All the above requisites are present in this case.

As regards the first requisite, there is no dispute that Nero’s property was surrounded by other immovables owned by different individuals, including William’s. The isolation was further shown by a Sketch Plan prepared by a geodetic engineer deputized by the parties.

Moreover, contrary to William’s claim that there was a barangay road closest to the dominant estate.

The second requisite of payment of indemnity was also complied with by Nero when he wrote to William formally asking the latter to provide him with a right of way, for which he was willing to pay a reasonable value or to swap a portion of his property.

Anent the third requisite, the isolation of the dominant estate was not due to Nero’s own acts. The property he purchased was already surrounded by other immovables leaving him no adequate ingress or egress to a public highway.

The fact that Nero knew that William  was in negotiation with the former owner of the subject property is of no moment. It cannot be used to defeat the respondent’s claim for a right of way. The former owner of the property had every right to sell his property to anybody.

As to the fourth requisite, the right of way sought by Nero is at the point least prejudicial to the servient estate and it is the shortest distance to the national highway. This is evident in the Sketch Plan showing that the requested right of way was alongside the perimeter of William’s property.

Even assuming that the right of way being claimed by Nero is not the shortest distance from the dominant estate to the public highway, it is well-settled that “[t]he criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. xxx In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. If having these two circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest.”

(Sources: Blacks’ Law Dictionary; Quimen vs. CA, G.R. No. 112331 May 29, 1996, Williams vs. Zerda, G.R. No. 207146, March 15, 2017)

Ma. Soledad Deriquito-Mawis is the Dean of Lyceum of the Philippines University; Chairman of the Philippines Association of Law Schools; and Founder of Mawis Law Office

************************************************************************************************************************

Visit www.robertgsarmiento.org for blogs, news, case studies and property listings which you may find informative.

Subscribe to my daily postings by filling in your email address at the NEWSLETTER section located at the lower right hand portion of the webpage of www.robertgsarmiento.org

View properties you are looking for by using the search engine, “BROWSE LISTINGS” ( on the upper right hand corner of the webpage ).

Finally, should you have a property for SALE or LEASE, let me know if our office could be of assistance.

Thank you.

rgs c1r

 

 

 

 

 

robert

Robert G. Sarmiento Properties
Professional Affiliation :
Philippine Association of Real Estate Boards
Member, City of Taguig Real Estate Board 2016 – 2018
Real Estate Broker’s Association of the Philippines 2000 – 2015
President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Boards
San Juan Mandaluyong Chapter 1998 -1999
PRC # 6569
PRC Lecturer’s License # 0294
+ 632 5536051 ( trunkline )
+ 632 4781316 ( telefax )
+ 632 8561365 ( line 3 )
+ 632 8041701 ( line 4 )
+ 63 917 5364829 ( globe )
Email : [email protected]
Website : www.robertgsarmiento.org
Website: http://condosphil.wordpress.com
Website: www.philippinecommercialproperties.com
Website: http://philippinewarehouses.wordpress.com
Website: http://philippineoffices.wordpress.com
Website: http://philippinetownhouse.wordpress.com

 

Leave a Reply