On passing through easements

(First of two parts)

“We keep passing unseen through little moments of other people’s lives,” said writer and philosopher Robert M. Pirsig.

These little moments can include crossing your neighbor’s pathway to get to work, enjoying from afar the view of your neighbor’s backyard, or eavesdropping on his arguments with his partner behind a party wall. While your neighbor may dismiss you as an intruding gossipmonger/pervert, Philippine laws actually allow you to use that pathway and party wall, and enjoy the view from your home.

These rights are commonly referred to as easements or servitudes, which are encumbrances imposed to an immovable property for the benefit of another belonging to a different owner. They may also be established to benefit a community or one or more persons to whom the encumbered estate does not belong.

Easements may be continuous, discontinuous, apparent or non-apparent. Continuous easements are those which are constantly used, without the intervention of any act of man, while discontinuous easements are those used at intervals and are dependent upon the acts of man. Meanwhile, apparent easements are those made known and continually kept in view by external signs that reveal their use and enjoyment, unlike non-apparent easements, which do not show external indication of their existence.

Easements may also be classified as positive or negative. A positive easement is one which imposes upon the landowner the obligation of allowing something to be done or of doing it himself, such as allowing passersby on his pathway for their convenience. Meanwhile, a negative easement prohibits this landowner from doing something which he could lawfully do if the easement did not exist, such as constructing a building that blocks the light and view from his neighbors.

Easements are either legal, which refer to those established by law, or voluntary, which are established by the will of the owners.

Continuous and apparent easements are acquired by virtue of a title or by prescription of 10 years, which shall be reckoned from the time of possession. Thus, in positive easements, the reckoning period shall be the day on which the owner of the dominant estate, in which favor the easement was established, or the person who may have used the easement, commenced to exercise it upon the servient estate, or that which is subject to the easement. In negative easements, this period shall be counted from the day on which the owner of the dominant estate has forbidden the owner of the servient estate from executing an otherwise lawful act by means of a public instrument.

Meanwhile, continuous and non-apparent, and discontinuous easements may only be acquired by virtue of a title.

Absent proof of the origin of an easement which cannot be acquired by prescription, the claimant may still substantiate the same by a deed of recognition by the owner of the servient estate or by a final judgment.

Once an easement is established, all rights necessary for its use are considered granted. Moreover, the owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

Easements are extinguished: (a) by merger in the same person of the ownership of the dominant and servient estates; (b) by non-use for 10 years; (c) when either or both of the estates fall into such condition that the easement cannot be used, though they may be revived in accordance with the conditions stated in the Civil Code; (d) by the expiry of the term or fulfillment of the condition, in case of temporary or conditional easements; (e) by the renunciation of the owner of the dominant estate; or (f) by the redemption agreed upon between the owners of the dominant and servient estates.

Also, the form or manner of using the easement may prescribe as the easement itself, and in the same way. But 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.