Module 7: Easements in General
Sacar, Ranyah Adiong
24. Characteristics of Easements
Sarangani, Aleya Dangcal
25. Easement vs Servitude vs Lease
Sarip, Sititie Saleha Capal
26. Classifications of Easements
Saura, Jhon Ryan Caliso
27. Dominant vs Servient Owner
Tampus, Rogie Clark Navales
28. Extinguishment of Easements
Legal Easements, Voluntary Easements, Nuisance:
Unos, Soraya Esmail
29. Legal Easements, Kinds, Classes (Waters, Right of Way, Party Wall,
Light/View, Drainage, Nuisance, Supports)
Ybañez, Mark Stephen Niones
30. Voluntary Easements, Nuisance (Doctrine of Attractive Nuisance, Remedies,
Extrajudicial Abatement, Defenses)
MODULE 7: EASEMENTS IN GENERAL
24. Characteristics of Easements
Q1. What are the characteristics of an easement?
a. It is a real right, but it affects third persons only when duly
registered.
An easement is a real right because it is constituted over the thing itself,
and not merely on the person of the owner or occupant. The right avails
against everyone, including any individual who may have an interest in the
thing or who, as an adverse possessor, exercises a right of dominion over
it. However, to bind third persons under the Torrens system, registration is
required.
b. It is constituted over an immovable.
In the context of easements, the term immovable is understood in its
common sense and not strictly by legal classification. Immovables are
things that by their nature cannot be moved from one place to another,
such as lands, buildings, and roads.
c. It is constituted over another’s property.
The principle of jura in re aliena applies — meaning that an easement is a
right enjoyed over another’s property. It serves as a limitation on the
servient owner’s right to use (jus utendi).
The maxim nulli res sua servit provides that no one can have servitude
over their own property. A person cannot have an easement on their own
land; an easement inherently involves two separate ownerships.
An acknowledgment of an easement is also an acknowledgment that the
property belongs to another.
d. It involves two neighboring estates.
There must be a dominant estate, to which the benefit belongs, and a
servient estate, upon which the corresponding burden rests.
e. It is inseparable from the estate to which it is attached.
An easement cannot be alienated or transferred independently of the
dominant estate. It follows the property, such that the easement passes
along with the transfer of ownership of the dominant estate.
f. It is indivisible. The easement remains intact even if the dominant or
servient estate is divided among multiple persons. The division does not
affect the existence of the easement.
g. It is a right limited by the needs of the dominant owner without
conferring possession.
The easement grants only a limited right for the benefit of the dominant
owner; it does not amount to possession or ownership of the servient
estate.
h. It generally cannot consist in the doing of an act, unless such act is
accessory to the enjoyment of a real easement.
The obligation of the servient owner is usually passive (to suffer or not to
do something) and not active, unless specifically provided.
i. It constitutes a limitation on ownership for the benefit of another
estate and is not presumed. Easements are restrictions on ownership
rights and must be clearly established; they are not presumed and must
be proven.
Q2. Are easements always real rights that necessarily require registration in order
to be enforceable against third persons?
No, easements are not always required to be registered to be enforceable against third
persons. Under the Civil Code, easements are real rights constituted over immovables
for the benefit of another immovable belonging to a different owner.
While registration under the Torrens system serves to bind innocent third persons,
continuous and apparent easements — such as pathways and drainage canals —
may be acquired by prescription and enforceable even without registration.
Thus, registration is necessary only to affect third persons who are purchasers for
value in good faith; it is not an absolute requirement for the enforceability of an
easement.
Q3. A owns Lot A and B owns adjacent Lot B. A has always used a cemented
pathway across Lot B to access the main road. After 15 years, B fences his lot
and blocks the pathway. A claims a right of way. Is A's claim correct?
Answer:
Yes, A’s claim is correct.
Under the Civil Code, a continuous and apparent easement (like a visible cemented
pathway) may be acquired by prescription through uninterrupted use for at least 10
years.
Since A has openly used the cemented trail for 15 years, he has acquired an easement
of right of way by prescription.
B cannot now block or obstruct the pathway, and A may demand its continued use.
Q4. Which of the following is NOT a characteristic of easements?
A. They are real rights.
B. They impose a positive obligation on the owner of the servient estate.
C. They are indivisible.
D. They are inseparable from the estate.
Answer:
B. They impose a positive obligation on the owner of the servient estate.
Easements generally impose a passive duty on the servient owner — to refrain from
doing something or to permit a specific use — but not to perform a positive act.
Thus, easements are characterized by the absence of any positive obligation on the
servient estate's owner.
Q5. C owns a parcel of land with a drainage canal running through D’s adjacent
lot. The canal has been in use and visible for 12 years. D builds a wall blocking
the canal. Can D legally do so?
Answer:
No, D cannot legally block the drainage canal.
According to the Civil Code, a continuous and apparent easement like drainage may
be acquired through prescription after 10 years of use.
Since the canal is visible and has been used continuously for 12 years, C has acquired
a legal easement by prescription.
D’s act of blocking it is illegal, and C may compel the removal of the obstruction.
Q6. Elaborate: Why is an easement said to be inseparable from the estate?
Answer:
An easement is inseparable from the estate to which it is attached because it is not a
personal right, but a real right attached to the property.
Under the Civil Code, easements follow the property; they cannot exist independently
or be transferred separately from the dominant estate.
When ownership of the dominant estate is transferred, the easement automatically
passes to the new owner.
This ensures the continuity of the burden and benefit attached to the respective estates,
protecting the utility and purpose of the easement.
25. Easement vs Servitude vs Lease
Q1. Define what is Easement or Servitude.
Answer:
An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner. However, it may also be
established for the benefit of a community, or of one or more persons to whom the
encumbered estate does not belong.
Q2. Explain the distinctions between Easements and Servitudes, focusing on
their origin and as to recipient of benefit.
Answer:
An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner. While both involve the right
to use property, easements are derived from Common law, while servitudes are derived
from Roman law. In terms of recipient of benefit, easements are always Real typically
benefit a specific piece of land and are attached to it, while servitudes may be Real or
Personal.
Q3. What are the Characteristics of Easement or Servitude?
Answer:
1. It is a real right but will affect third persons only when duly registered;
2. It is enjoyed over another immovable, never on one’s own property;
3. It involves two neighboring estates (in case of real easements)- the
dominant and the servient estate;
4. It is inseparable from the estate to which it is attached, and, therefore, cannot
be alienated independently of the estate;
5. It is indivisible for it is not affected by the division of the estate between two
or more persons. The mere fact that the property was subdivided does not
extinguish the easement;
6. It is a right limited by the needs of the dominant owner or estate, without
possession;
7. It cannot consist in the doing of an act unless the act is accessory in
relation to a real easement; and
8. It is a limitation on the servient owner’s right of ownership for the benefit of
the dominant owner; and therefore, it is not presumed.
Q4. Explain the differences between an Easement and Lease, focusing on the
consideration whether a real right, as to scope and as to limitation.
Answer:
While both easements and leases involve the use of another person's land, they differ
significantly in their legal nature, scope, and limitations. An easement is a Real right,
whether registered or not, while a lease is real right only when it is registered, or when
its subject matter is real property and the duration exceeds (1) one year. As to scope,
an Easement is imposed only on Real property while Lease may involve either real or
personal property. In Easement, there is a limited right to the use of real property of
another but without the right to possession, while in lease, there is a limited right to both
the possession and use of another’s property.
Q5. A family in a rural community owns a small farm (Property A) that has no
direct access to a public road. For generations, they have used a narrow dirt path
across their neighbor's property (Property B) to reach the main road. The path is
essential for the family to transport their farm produce to market and for
accessing essential services. The neighbor, who recently inherited Property B,
wants to develop the land for commercial purposes and plans to build a large
warehouse that would block the path. The family argues they have a right-of-way
easement by prescription, granting them the right to continue using the path. Can
the family legally prevent the neighbor from building the warehouse? Explain.
Answer:
Yes, the family may have a valid claim to an easement by prescription, which could
prevent the neighbor from blocking the path.
Article 613 of the New Civil Code of the Philippines defines easements or servitudes as
encumbrances imposed upon immovable property for the benefit of another immovable
belonging to a different owner.
The family's farm has no direct access to a public road, making the path across
Property B essential for their livelihood and the use and enjoyment of their property. The
family has used the path for generations, indicating continuous and open use that would
have been visible to the neighbor and previous owners of Property B. The length of time
the family has used the path (generations) likely exceeds the 10-year period required for
an easement by prescription in the Philippines.
Therefore, the family may have a valid claim to an easement by prescription.
26. Classifications of Easements
Q1: What are the classifications of easement?
SUGGESTED ANSWER:
The classifications of easements are as follows:
1. According to the recipient of the benefit:
a. Real servitude – those imposed upon an immovable for the benefit of
another immovable belonging to a different owner (CIVIL CODE, Art. 613);
or
b. Personal servitude – those imposed for the benefit of a community, or of
one or more persons to whom the encumbered estate does not belong
(CIVIL CODE, Art. 614).
2. According to the source:
a. Legal easements – those established by law (CIVIL CODE, Art. 619); or
b. Voluntary easements - those established by the will of the owners (CIVIL
CODE, Art. 619);
3. According to the manner in which they are exercised:
a. Continuous easements - those the use of which is or may be incessant,
without the intervention of any act of man (CIVIL CODE, Art. 615); or
b. Discontinuous easements – those which are used at intervals and depend
upon the act of man (CIVIL CODE, Art. 615).
4. According to the presence of physical signs:
a. Apparent easements – those which are made known and are continually
kept in view by external signs that reveal the use and enjoyment of the
same (CIVIL CODE, Art. 615); or
b. Non-apparent easements – those which show no external indication of
their existence (CIVIL CODE, Art. 615).
5. According to duty of the servient owner:
a. Positive Easements – those which impose upon the owner of the servient
estate the obligation of allowing something to be done or of doing it
himself (CIVIL CODE, Art. 616); or
b. Negative easements – those which prohibit the owner of the servient
estate from doing something which he could lawfully do if the easement
did not exist (CIVIL CODE, Art. 616)
6. According to the right given:
a. Right to partially use the servient estate;
b. Right to get specific materials or objects from the servient estate;
c. Right to participate in ownership; or
d. Right to impede or prevent the neighboring estate from performing a
specific act of ownership (2 PARAS, supra at 657-658).
Distinguish between: (1998 BAR)
1. Continuous and discontinuous easements;
2. Apparent and non-apparent easements; and
3. Positive and negative easements.
SUGGESTED ANSWER:
1. CONTINUOUS EASEMENTS are those, the use of which are or may be
incessant, without the intervention of any act of man, while DISCONTINUOUS
EASEMENTS are those which are used at interval and depend upon the acts of
man. (Art. 615, Civil Code)
2. 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,
while NON-APPARENT EASEMENTS are those which show no external
indication of their existence. (Art 615, Civil Code)
3. POSITIVE EASEMENTS are those which impose upon the owner of the servient
estate the obligation of allowing something to be done or of doing it himself, while
NEGATIVE EASEMENTS are those which prohibit the owner of the servient
estate from doing something which he could lawfully do if the easement did not
exist. (Art 615, Civil Code)
Q2: An easement that can be acquired by prescription: (2014 BAR)
(A) Right of way
(B) Watering of an animal
(C) Lateral and subjacent support
(D) Light and view
SUGGESTED ANSWER:
(D) Light and view. Only continuous and apparent easement maybe acquired by
prescription.
Q3: Don was the owner of an agricultural land with no access to a public road. He
had been passing through the land of Ernie with the latter’s acquiescence for
over 20 years. Subsequently, Don subdivided his property into 20 residential lots
and sold them to different persons. Ernie blocked the pathway and refused to let
the buyers pass through his land. (2005 BAR)
(a) Did Don acquire an easement of right of way? Explain
SUGGESTED ANSWER:
A: Don did not acquire an easement of right of way. His passage through Ernie’s land
was by mere acquiescence or tolerance. He cannot claim to have acquired the
easement of right of way by prescription, because this easement is discontinuous
although apparent. Only continuous and apparent easements can be acquired by
prescription of 10 years of uninterrupted use and enjoyment.
Easement of Light and View (2022 Bar)
Q4: The Sps. Santos are the registered owners of Lot 2 located in Umaga
Subdivision, Caramoan, Camarines Sur, covered by TCT No. 1369. Lot 2, which
has been occupied by the Sps. Santos for about 11 years, has a one-storey
residential house which was already erected thereon when Lot 2 was purchased
by them from the Sps. Cruz in 2005. At the time of the acquisition of Lot 2, the
adjoining lot, Lot 1, which was also owned by the Sps. Cruz, was an idle land
without any improvements. Lot 1 remained empty until the spouses Cruz started
the construction of a two-storey residential house thereon in 2018.
The house constructed on Lot 1 being taller than the Sps. Santos’ one-storey
residential house, the Sps. Cruz’s two-storey residential house obstructed the
light, air, and view of the Sps. Santos’ residential house. The Sps. Santos
bemoaned how, prior to the construction on Lot 1, they received enough bright
and natural light from their windows. The construction rendered their house dark
such that they are unable to do their normal activities in their house without
switching on their lights.
Have the Sps. Santos acquired an easement of light and view with respect to Lot
1 owned by the spouses Cruz? Explain briefly. (2022 BAR)
SUGGESTED ANSWER:
A: YES, the Sps. Santos have acquired an easement of light and view with respect to
Lot 1 owned by Sps. Cruz.
As a general rule, a negative easement of light and view cannot be acquired by
prescription except where a sufficient time of possession has elapsed after the owner of
the dominant estate, by a formal act, has prohibited the owner of the servient estate
from doing something which would be lawful but for the easement. However, under 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.
Hence, in accordance with Art. 624 of the NCC, from the time the Sps. Cruz transferred
the subject property to the Sps. Santos, there arose by title an easement of light and
view, placing a burden on the servient estate, Lot 1, to allow the Sps. Santos' residence
unobstructed access to light and view. (Spouses Garcia vs. Santos and Tan, G.R. No.
228334, 17 June 2019) (Central Bar Q&A by Paguirigan, 2023)
Q5: TRUE or FALSE: Continuous non-apparent easements can be acquired either
through title or by prescription. (2017 BAR)
SUGGESTED ANSWER:
A: FALSE. Art. 620 of the NCC provide that continuous and apparent easement is
acquired either by virtue of a title or by prescription of ten years. Continuous non-
apparent easements and discontinuous ones, whether apparent or not, maybe acquired
only by virtue of a title. (Art. 622, NCC) An easement must be both continuous and
apparent to be subject to acquisition by prescription. (UPLC Suggested Answers)
27. Dominant vs Servient Owner
Q1. Who is the Dominant Owner and Who is the Servient Owner?
ANSWER:
The dominant owner is the proprietor of the immovable property in favor of which
the easement is established (Civil Code, Art. 613). Conversely, the servient owner
is the proprietor of the immovable property that is subject to the easement for the
benefit of the dominant estate.
Q2. What are the Rights and Obligations of the Dominant Owner?
ANSWER:
Rights of the Dominant Owner:
1. To exercise all rights necessary for the use of the easement (Art. 625);
2. To carry out on the servient estate all works necessary for the use and
preservation of the servitude (Art. 627, par. 1);
3. To renounce the easement should he wish to be exempt from
contributing to necessary expenses (Art. 628, par. 1); and
4. To seek a mandatory injunction to prevent any impairment of his use of
the easement (Resolme v. Lazo, 27 Phil. 416 [1914]).
Obligations of the Dominant Owner:
1. He must not alter the easement or render it more burdensome (Art. 627,
par. 1);
2. He shall notify the servient owner of any works necessary for the use
and preservation of the servitude (Art. 627, par. 2);
3. He must conduct such works at the most convenient time and in a
manner that causes the least inconvenience to the servient owner (Ibid.);
and
4. If there are several dominant estates, he must contribute to the
necessary expenses in proportion to the benefit derived from such works
(Art. 628, par. 1).
Q3. What are the Rights and Obligations of the Servient Owner?
ANSWER
Rights of the Servient Owner:
1. To retain ownership over the portion of the estate on which the easement
is established (Art. 630);
2. To make use of the easement, unless there is an agreement to the
contrary (Art. 628, par. 2); and
3. To change the place or manner of the use of the easement, provided the
new location or manner is equally convenient (Art. 629, par. 2).
Obligations of the Servient Owner:
1. He must not impair the use of the easement (Art. 629, par. 1); and
2. If he makes use of the easement, he must contribute to the necessary
expenses, unless there is an agreement to the contrary (Art. 628, par. 2).
Q4. Anna owns a landlocked property and uses a footpath over Ben’s land to
access the highway, based on a voluntary easement granted in writing. Without
informing Ben, Anna begins paving the footpath with concrete, which blocks
Ben’s water drainage. Ben objects and demands she stop construction. Who is in
the right?
ANSWER:
Ben is correct in objecting. While Anna, as the dominant owner, has the right to
make works necessary for the use and preservation of the easement (Art. 627,
par. 1, Civil Code), she is required to notify Ben and ensure the works cause the
least inconvenience (Art. 627, par. 2). By failing to do so and impairing Ben’s use
of his property, Anna exceeded her rights. Ben may seek to stop the construction
or ask for its removal.
28. Extinguishment of Easements
Q1. What are the modes of extinguishment of easements under the Civil Code?
Ans: Article 631 provides that easements are extinguished by:
1. Merger
2. Non user for 10 years
3. Bad Condition of Tenement or Impossibility of Use
4. Expiration of the Term or Fulfillment of Condition
5. Renunciation of the Owner of the Dominant Estate
6. Redemption Agreed Upon by the Owners of the Dominant and Servient Estates
Q2. What are the other modes of extinguishment of easements?
Ans: Although not expressly mentioned in the Civil Code, other modes of
extinguishment of easements are:
1. Expropriation of servient estate
2. Permanent impossibility to make use of the easement
3. Annulment, rescission, or cancellation of the title that constituted easement
4. Abandonment of the servient estate
5. Resolution of the right to create the easement as when there is redemption of the
property sold in case of pacto de retro.
6. Registration of the servient estate as FREE that is, although the servient estate
was registered under the Torrens system, the easement thereon was not
registered unless there is a stipulation or actual knowledge of the existence of
the easement on the part of the transferee.
7. In the case of the legal easement of right of way, the opening of an adequate
outlet to the highway extinguishes the easement, if the servient owner makes a
demand for such extinguishment.
Q3: What is required in order for a merger to extinguish an easement?
Ans: The merger must be absolute, complete, and not temporary.
Q4: Ronn, the dominant owner, sold his estate under pacto de retro to Ryan, the
servient owner. Is the easement extinguished?
Ans: NO. It is merely suspended for the merger is only temporary. It will be revived
when the property is redeemed by Ronn.
Q5: Mar Matthew, owner of the dominant estate, donated the same to James, the
servient owner. It was stipulated that if James later marries Carissa, the property
will revert to Mar Matthew. Is the easement extinguished?
Ans: NO. Pending the resolutory condition, the merger can be considered temporary,
and the easement is merely suspended.
Q6: Suppose, in the scenario above, James marries Carissa. What will happen?
Ans: The easement will be revived. If no marriage takes place, as when Carissa
marries another, the easement really is extinguished.
Q7: Leuna, owner of the dominant estate, sold the same to Arelm, the servient
owner. Later, Leuna bought back the estate. After some time, Leuna sold the
estate to Niña Liza. Is the easement revived?
Ans: NO. The absolute sale of the dominant estate to the servient estate merged
completely and definitely the ownership of both estates in one person. Therefore, the
easement was not merely suspended; it was totally extinguished. When the former
dominant owner bought back her estate, it was not because of the exercise of the right
of conventional redemption. It was a new sale. No easement was created by virtue of
the sale. Therefore, there was no easement that could be revived upon the sale of the
property to Niña Liza.
Q8: From what time to compute the 10-year period for non-use?
Ans: For discontinuous easements, it shall be counted from the time it ceased to be
used. An example of discontinuous easement is right of way.
For continuous easements, it shall be counted from the day on which an act contrary to
the same took place. An example of continuous easement is aqueduct.
In every case, the proof of non-use must be indubitable.
Non-user refers to an easement that has once been used because one cannot
discontinue using what one has never used.
Q9: The dominant estate was owned in common. The easement was used by one
co-owner only. May the other co-owners still use the easement even if they did
not use the easement for more than 10 years?
Ans: YES. Use by at least one co-owner of the dominant estate of the easement
prevents prescription as to the others inasmuch as an easement is indivisible. Thus, if
one co-owner has continued the use, the others who may not have used for more than
10 years may still use.
This is consistent with Article 633 of the Civil Code which provides that “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.”
Q10: Is the bad condition of the tenement automatically extinguishes easement?
Ans: NO. This merely suspends the easement since possibility of use revives the
easement. Article 631, paragraph 3 provides that “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”.
In the following situations, the easement is absolutely extinguished:
(a) If the circumstances which cause the impossibility of use shall be irreparable,
in which case, the easement is absolutely extinguished.
(b) If the circumstances which cause the impossibility of use are reparable, the
easement is likewise extinguished if the period of extinctive prescription by
non-user has already lapsed. In this case, the non-use must be voluntary, and
not due to fortuitous event.
Q11: What is required in order that renunciation by the owner of the dominant
estate will extinguish easement?
Ans: Renunciation must be express, clear, and specific. Otherwise, it might be
confused with non-use.
Q12: What does redemption agreed upon by the owners of dominant and servient
estate as a mode of extinguishing easement?
Ans: The redemption being referred to in paragraph 6 of Article 631 of the New Civil
Code is the release of the servient estate from the servitude upon agreement of the
owners of both estates and upon payment by the owner of the servient estate of the
corresponding consideration to the owner of the dominant estate.
29. Legal Easements, Kinds, Classes (Waters, Right of Way, Party Wall,
Light/View, Drainage, Nuisance, Supports)
Q1. Which of the following is not a recognized class of legal easement under
Philippine law: Easement of Light and View, Easement of Support, Easement of
Passage, or Easement of Ownership?
Answer:
The correct answer is Easement of Ownership.
According to the New Civil Code, legal easements are specific burdens imposed upon
an immovable for the benefit of another immovable or for public use. These include the
easements of right of way, light and view, drainage of waters, nuisance abatement, and
support. Ownership, however, is a full and independent right over property and is not
classified as an easement.
While easements restrict or regulate ownership for the benefit of another property or for
communal convenience, ownership itself is not an accessory right but the principal right
over the property.
Therefore, Easement of Ownership is not a recognized class of legal easement, making
it the correct answer.
Q2. Ayah owns a landlocked property and demands from her neighbor Arelm a
right of way to access the public road. Arelm refuses, arguing that Ayah can pass
through another neighbor Cai’s property, although the route is longer. Is Arelm
obliged to grant a right of way?
Answer:
No, Arelm is not obliged to grant the right of way if an adequate outlet already exists
through Cai’s property.
Article 649 of the New Civil Code provides that a right of way can only be demanded if
the property is surrounded by other properties and there is no adequate outlet to a
public highway. Furthermore, the easement must be established at the least prejudicial
location to the servient estate.
In this case, even though the passage through Cai’s land is longer, if it provides
sufficient access to the public road without causing undue hardship, Ayah cannot
compel Arelm to give a right of way. The law does not require the shortest route, only an
adequate one.
Thus, since there is an adequate outlet through Cai’s land, Arelm is not obliged to
provide a right of way.
Q3. Which statement is true regarding an easement of party wall:
A. A wall built entirely on one owner’s property is presumed a party wall,
B. It exists only through an express agreement,
C. It is presumed when a wall is built partly on each property and both owners
use it,
D. Or it requires judicial recognition before it is enforceable?
Answer:
The true statement is that an easement of party wall is presumed when the dividing wall
is built partly on each property and both owners use it.
Article 660 of the New Civil Code states that when a wall, fence, or ditch divides two
estates and there is proof that it is used by both owners, it is presumed to be a party
wall.
If the wall stands precisely between two properties and both owners use it—for
instance, by attaching structures or maintaining it jointly—then by operation of law, it is
presumed that the wall is for common use without needing further judicial declaration.
Hence, the correct answer is that the easement of party wall is presumed under these
conditions.
Q4. A owns a building and installs a large glass window overlooking B’s adjacent
lot. Later, B constructs a wall that blocks A’s view. A sues B for obstruction. Who
has the superior right?
Answer:
B has the superior right.
Under Articles 670 and 671 of the New Civil Code, the easement of light and view only
arises if there is a title establishing it or by prescription after thirty years of uninterrupted
enjoyment.
In the given case, A simply installed a window without showing that he had acquired a
right to maintain it through title or through thirty years of uninterrupted use. Without such
acquisition, B remains free to build on his property, even if it obstructs A’s view or light.
Thus, B has the superior right, and A’s suit would not prosper.
Q5. In an easement of drainage of waters, which of the following is NOT correct?
a. The lower estate is obliged to receive the natural flow of waters;
b. The owner of the higher estate may artificially increase the flow;
c. The lower estate cannot prevent natural drainage;
d. The easement exists even without express agreement.
Answer:
The incorrect statement is that the owner of the higher estate may artificially increase
the flow.
Article 637 of the Civil Code provides that the owner of the lower estate must accept the
natural flow of waters, whether rain or spring, but the owner of the higher estate may not
alter the flow to increase the burden.
If the higher estate artificially diverts or channels additional waters to the detriment of
the lower estate, it would violate the natural easement and expose the former to liability.
Thus, the statement that the owner of the higher estate may artificially increase the flow
is incorrect.
30. Voluntary Easements, Nuisance (Doctrine of Attractive Nuisance, Remedies,
Extrajudicial Abatement, Defenses)
Q1. For whose favor are voluntary easements established?
Suggested Answer:
A. Predial servitudes:
a. For the owner of the dominant estate; and
b. For any other person having any juridical relation with the dominant estate, if
the owner ratifies it.
B. Personal servitudes:
a. For anyone capacitated to accept.
Q2. Palawan East Cove, applied for a zoning compliance covering the
construction of a three-storey hotel over a parcel of land in Puerto Prinsesa. The
Zoning Administrator denied the application on the ground that the proposed
construction site was within the “no build zone”. The Office of the Mayor issued
EO 10, ordering the closure and demolition of Palawan East Cove’s hotel.
Palawan East Cove countered that the hotel cannot summarily be abated because
it is not a nuisance per se. Is the hotel classified as a nuisance per se?
Suggested Answer:
NO. The hotel is not classified as nuisance per se.
The test in determining if it’s a nuisance is the property’s nature and conditions. The
hotel cannot be considered as a nuisance per se since this type of nuisance is generally
defined as an act, occupation, or structure, which is a nuisance at all times and under
any circumstances, regardless of location or surrounding.
Here, it is merely the hotel’s particular incident - its location and not its inherent qualities
that rendered it a nuisance. Otherwise stated, had it not been constructed in the no
build zone, Palawan East Cove could have secured the necessary permits without issue
Q3. What are the requisites of Extra-judicial Abatement?
Suggested Answer:
A. The nuisance must be specially Injurious to the person affected;
B. No Breach of peace or unnecessary injury must be committed;
C. Demand must first be made upon the owner or possessor of the property to
abate the nuisance;
D. Demand is Rejected;
E. Abatement is Approved by the district health officer and executed with the
assistance of the local police; and
F. Value of destruction does not exceed P3, 000.
Provided, what is abated is a nuisance per se and not nuisance per accidens.
