Easements

(Servitude)

[1]
Notes by: Cli ord Enoc

See: Easements provided in the Civil Code

Legal de nition of easement

Easement is de ned in law as "[a]n encumbrance

imposed upon an immovable for the bene t of another
[2]
immovable belonging to a di erent owner." It is also
sometimes referred to in our jurisdiction as
[3]
Servitude(“servitus”).

Jurisprudentially, easement is described to be "[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
[4]
property, for the bene t of another person or tenement. It
is a limitation of ownership and a restriction on the
[5]
enjoyment of one's own property.

[6]
Similarly, in Valdez v. Tabisula, easement or servitude
as de ned by Sanchez Roman 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
[4-1]
bene t of another thing or person."
 It is jus in re aliena, inseparable, indivisible and
perpetual, unless extinguished by causes provided by law. As
such, it operates as a limitation on the title of the owner of
[7]
the servient estate, speci cally, his right to use ( jus utendi).

A right of way in particular is a privilege constituted by

[8]
covenant or granted by law to a person or class of persons
to pass over another's property when his tenement is
surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the
dominant estate can demand a right of way through the
servient estate provided he indemni es the owner thereof
[9] [10]
for the bene cial use of his property.

Simply put, an easement is a right to use and/or enter

into the real property of another without possessing it,
which right is "best typi ed in the right-of-way which one
[11]
landowner may enjoy over the land of another. It is
nothing more than a right of passage over a neighbor's land
or waterway.

🟢 For whose benefit an easement may be

established

An easement or servitude may also be considered for the

bene t of:

(a) a community; or

(b) one (1) or more persons to whom the encumbered

[12]
estate does not belong.
 See: Kinds of easements

🟠 Extent of Benefit
It is not necessary that the bene t be very great; it is
su cient that there is some utility, or any advantage or
improvement of the condition of the dominant tenement.
Nor is it necessary that the right acquired under the
servitude be exercised; it is su cient if it exists and can be
exercised. On the other hand, the encumbrance should not
absorb entirely the usefulness of the servient tenement; this
would not be merely an encumbrance, but an annulment of
[13]
right. Thus, where an aqueduct and dam were for over
thirty years being used to supply water to a higher tenement,
the owner of the tenement cannot destroy the dam and thus
deprive the upper tenement of the bene ts arising from its
[14]
construction.

ARTICLE 613.

An easement or servitude is an encumbrance imposed

upon an immovable for the bene t of another immovable
belonging to a di erent owner.

The immovable in favor of which the easement is

established is called the dominant estate; that which is
subject thereto, the servient estate. (530)

The foregoing de nition, however, represents only one of

the two aspects of easement or servitude. The other aspect of
easement or servitude refers to the right of servitude ( jus
servitutes), or the right which corresponds to the burden
imposed.

ARTICLE 614.

Servitudes may also be established for the bene t of a

community, or of one or more persons to whom the
encumbered estate does not belong. (531)

It is an encumbrance imposed upon an immovable for

the bene t of a community or one or more persons (personal
easements) or for the bene t of another immovable
belonging to a di erent owner (real or predial easement).

🟥 Ownership of easement
The requisite of an easement as required by Article 613
of the Civil Code is that there must be two proprietors - one,
[15]
of the dominant estate and another, of the servient estate.

"The right of the easement is the necessary consequence

of the right of ownership of immovable property; and as soon
as mankind arrived at determination that individuals were to
be allowed exclusive ownership of property, the very next
step was concurrence in the equitable principle, that the
good of the public lay in enjoying one's property so as not to
disturb the enjoyment by the neighbour of his own property.

"And this salutary principle appears to be the original

[16]
foundation on which easements are based."

✅
 ✅ Major categories of easement
As it evolved in history, easement was eventually
classi ed into four (4) major categories which became the
foundation upon which the pertinent laws in various
jurisdictions have been based. These are:

(1) Easements of right-of-way;

(2) Easements of lateral and subjacent support (for

excavations);

(3) Easements of light and view; and

(4) Easements relating to water and arti cial waterways.

🟩 General Provisions on
Easements
👉 Easement as a real right; legal basis
of right of easement
An easement or servitude is "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
[17]
bene t of another thing or person.

It exists only when the servient and dominant estates

belong to two (2) di erent owners. It gives the holder of the
easement an incorporeal interest on the land but grants no title
 to it. Therefore, an acknowledgment of the easement is an
[18]
admission that the property belongs to another.

The statutory basis of this right is Article 613 of the Civil

Code which reads:

ARTICLE 613.

An easement or servitude is an encumbrance imposed

upon an immovable for the bene t of another immovable
belonging to a di erent owner.

The immovable in favor of which the easement is

established is called the dominant estate; that which is
subject thereto, the servient estate. (530)

This article de nes a real easement. The terms

“dominant estate” and “servient estate” are also de ned.

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. However, if 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
[1]
shortest.

1. Almendras v. CA 80 SCAD 465 (1997) ↩

see: LeastSAPI

🟠
 🟠 Characteristics of Easement
(a) a real right — therefore an action in rem is possible
against the possessor of the servient estate.

(b) imposable only on ANOTHER’S property which should

be immovable, not personal (hence, there can be no true
easement on one’s own property; thus, merger in the same
person of the ownership of the dominant and servient estate
extinguishes the easement). [See Arts. 613, 631 (No. 1).].

(c) it is a jus in re aliena (a real right that may be alienated

although the naked ownership — nuda proprietas — is
maintained). It is inseparable from the tenements to which it
is actively or passively attached. It cannot be alienated
independently of the tenement.

See also: naked ownership

(d) it is a limitation or encumbrance on the servient estate

for another’s bene t. Simply put, it produces a limitation of
ownership, but the ownership of the servient tenement is
unimpaired. It allows the dominant owner to enjoy the use of
part of the servient tenement, or imposes on the owner of the
latter a restriction in his enjoyment. It must give some
[19]
positive enjoyment or bene t to the dominant tenement.

See also: Limitations on the right of ownership

 Note

It is an encumbrance on the servient estate, but

confers a bene t on the dominant estate.

NOTE:

1. It is essential that there be a BENEFIT otherwise

there would be no easement.

2. It is not essential that the bene t be exercised. What

is vital is that it can be exercised.

3. It is not essential for the bene t to be very great.

4. The bene t should not be so great as to completely

absorb or impair the usefulness of the servient estate, for
then, this would be not merely an encumbrance or a
limitation but the cancellation of the rights of the
servient estate.[20]

5. The bene t or utility goes to the dominant estate (not

necessarily to the owner of the dominant estate). There
is limited use but there is NO POSSESSION.

6. The exercise is naturally restricted by the needs of

the dominant estate or of its owner[21] such needs being
dependent upon the progress of civilization, [22] where
the Court of Appeals held that “in an age when motor
cars are a vital necessity, the dominant proprietor has a
 right to demand a driveway for his automobile, and not a
mere lane or pathway.”).

7. Easements, being an ABNORMAL restriction on

ownership, are NOT PRESUMED, but may be imposed by
LAW.[23]

(e) there is INHERENCE (or INSEPARABILITY, from the

[24]
estate to which it belongs).

see: Inherence and intransmissibility

[25]
(f) it is INDIVISIBLE (even if the tenement be divided).

(g) it is INTRANSMISSIBLE (unless the tenement a ected

[26]
be also transmitted or alienated).

(h) it is PERPETUAL (as long as the dominant and/or the

servient estate exists unless sooner extinguished by the
[27][28]
causes enumerated in the law).

There is con ict of opinion as to whether the servient

owner can be required under the easement to do something
or perform a positive act. Some authorities, like Colin &
Capitant, believe that there are cases when the servient
owner has to perform some positive act. Considering the
de nition of positive easement (Article 616), our law seems
to admit the existence of easements which impose upon the
[29]
servient owner the duty of doing something.

However, Ruggiero and Camus hold the opposite view.

According to Camus, easements consist in allowing the
dominant owner to do something or in the servient owner
refraining from doing something, but never in requiring the
latter to do some positive act; although article 616 seems to
imply that the servient owner may be required to do
something, this obligation has an accessory character, and
does not represent the fundamental essence of the servitude.
[30]
Ruggiero holds that an easement can never consist in a
personal prestation to do on the part of the owner of the
servient estate; the obligation imposed upon him is always
[31] [32]
negative. We are inclined to agree with this view. In the
Louisiana code (Article 766), it is expressly provided that
"one of the characteristics of a servitude is, that it does not
oblige the owner of the estate subject to it to do anything, but
to abstain from doing a particular thing, or to permit a
[33]
certain thing to be done on his estate."

🟪 Distinction between easement

and
⭐ Servitude
While the terms servitude and easement are oftentimes
used interchangeably, the two (2) concepts actually di er in
that the former, an English law term, essentially refers to the
servient estate or the burdened property, whereas the latter,
a term derived from Roman Law, pertains to the dominant
estate or the bene ted property.

It bears stressing that servitude literally means the state

of a person who is subjected, voluntarily or involuntarily, to
another person as a servant. As adopted and used in civil law,
the term partakes of an analogous meaning, that is, it is a
charge or burden resting upon one estate for the bene t or
advantage of another.

Servitude is essentially more comprehensive in scope

than easement in that it may either be real or personal, while
the latter term is always real .

Put a little di erently, easement and servitude are but

the two aspects of the same concept. The passive aspect of
being an encumbrance is what should properly be referred to
as the “servitude;” whereas the active aspect of being a right
[34]
is what should properly be referred to as an “easement.”

Easement Servitude
Term used in common law term used in civil law
is only one form of servitude
broader
(servitus)
predial or real / personal on
is always predial or real
another
 Note

As used in the Civil Code, however, easement is

[1]
equivalent to servitude. The term “easement’’ was used
instead of “servitude’’ because the former term is better
known in the Philippines and because it is the accepted
term in the English language, the Civil Code having been
written in English.

1. See for reference Salmond, Jurisprudence, pp. 458-

460 ↩

💈 Meaning of appurtenance
However, not all servitudes are easements since not all of
[35]
them are attached to other land as appurtenances. The
rights, bene ts, privileges, or improvements that allow for
the full use and enjoyment of the real property belonging to
the owner of a dominant estate and which may burden the
servient estate are called "appurtenances."

See: servitude appurtenant

⭐ Co-ownership
Easement Co-ownership
Easement Co-ownership
1. In co-ownership, there is in
1. Easement is a limitation
each co-owner a right of
on the right of dominion
dominion over the entire
over a person's property or
property and over his/her
estate.
undivided share.
2. In easement, the right of
In co-ownership, the right of
dominion is in favor of one
ownership rests solely on
(1) or more persons and over
each and every co-owner over
two (2) or more di erent
a single property.
things.

⭐ Lease
Easement Lease
1. It becomes a real right only
1. It is a real right, when it is registered, or when its
whether registered or subject matter is a real property
not. and the duration of the lease
exceeds one (1) year.
2. It is imposed only on 2. It may involve either real or
real property. personal property.
3. There is a limited right
on the use of real 3. There is a limited right both as
property belonging to to the possession and use of
another, but without the another's property.
right of possession.

⭐ Usufruct
Easement Usufruct
1. It is imposed only on 2. It may involve either real or
real property personal property.
2. It is limited to a
particular or speci c 2. It includes all the uses and the
use of the servient fruits of the property.
estate.
3. It constitutes a
3. It involves a right of possession
nonpossessory right
in an immovable.
over an immovable
4. It is not extinguished
It is extinguished by the death of
by the death of the
the usufructuary.
dominant owner.
5. (personal easement)
generally can be alienated
cannot be alienated
6. (personal easement) the use has broader in scope, and
the use is speci cally in general comprehends all the
[36]
designated possible uses of the thing

🟥 No Easement on Personal
Property
Easement is a real right since the right is constituted on
the thing itself and not upon its owner or its occupant. As a
consequence, the right avails against every person
whomsoever, who may happen, for the time being, to have
any interest in the thing, or, as adverse possessor, to exercise
a right of dominion over it. The right consists of a limited use
and enjoyment of the thing without possession and gives rise
to an action in rem in favor of the owner of the tenement of
the easement and against any possessor of the servient
[37][38]
estate.

Unlike a lease, an easement does not give its holder a

right of possession over the property, but only a right of use
for a special and limited purpose. It gives the holder of the
easement an incorporeal interest on the land, which is non-
possessory in character, but grants no title thereto.

There can be no easement imposed on personal property;

only immovables (not as de ned by the Code, but those
which really cannot be moved) may be burdened with
[39]
easements. Such immovables include lands, buildings,
[40]
roads.

🟪 It Is Constituted Over An
Immovable
Whatever may be the kind of easement, the right is
always enjoyed over an immovable property. Or, from the
point of view of the encumbrance, the same is always
[41]
imposed upon an immovable property. The term
“immovable” in Article 613 should be understood in its
ordinary or vulgar connotation — as referring to those which
are, by their nature, cannot be moved from one place to
[42]
another — such as lands,buildings and roads. Hence, it is
legally impossible to impose an easement over another
[43][44]
easement.
 👉 It Is Constituted Over Another’s
Real Property

It is jus in re aliena, inseparable, indivisible and

perpetual, unless extinguished by causes provided by law. As
such, it operates as a limitation on the title of the owner of
[1]
the servient estate, speci cally, his right to use ( jus utendi).

1. Solid Manila Corp. v. Bio Hong Trading Co., Inc., 195

SCRA 748 (1991). ↩

Inasmuch as every easement or servitude is a limitation

upon one’s ownership, it follows that no man has a right of
servitude in a thing of which he is the owner: Nulli res sua
servit. For if he had, he would have a right in the thing
[45]
against himself: which is, of course, absurd. Hence, it is
impossible to have an easement over one’s own property in
one’s own favor because things serve their owner by reason
[46]
of ownership and not because of any servitude.
Consequently,if there is a merger in the same person of the
ownership of the dominant and servient estates, the
[47][48]
easement is extinguished.

🤣 Some Easements
(a) A dam supplying water confers a bene t, and if there
[49]
is an easement, the dam cannot be destroyed.
 (b) There is an easement when someone is granted the
right to maintain wires across a parcel of land belonging to
[50]
another.

🔴 Estates subject of easements

The two (2) estates subject of an easement are:

(a) the dominant estate, and

(b) the servient estate.

The dominant estate is the immovable in favor of which

the easement is established.

The servient estate, on the other hand, is the real

property which is subject to the easement.

References and Related topics:

Kinds of easements

Easements of right-of-way

Legal Easements

01/07/2022

1. Second Year , Juris Doctor, University of San Jose

Recoletos School of Law. (Personal website:
[Link] [Link] ) ↩

2. Art. 613, New Civil Code.↩

 3. Claridades, Alvin T. Laws on Easement, Road Right-of-
way & Building Setback . 2021 edition. Quezon City,
Philippines: Central Book Supply, Inc., p. 1. ↩

4. 3 Sanchez Roman 472.↩↩

5. 2 Valverde 338.↩

6. G.R. No. 175510. July 28. 2008. 560 SCRA 332 ↩

7. Solid Manila Corp. v. Bio Hong Trading Co., Inc., 195

SCRA 748 (1991). ↩

8. Art. 634, NCC.↩

9. Art. 649, NCC↩

10. Quimen v. Court of Appeals, G.R. No. 112331, May 29,

1996, 257 SCRA 163.↩

11. Gray, Kevin J.; Susan Francis Gray (2009). Elements of

Land Law (5th ed.), Oxford: Oxford University Press, p.
13.↩

12. Art. 614, Civil Code; Solid Manila Corporation v. Bio

Hong Trading Co., Inc., G.R. No. 90596, April 8, 1991,
SCRA 748.↩

13. 4 Manresa 586-587.↩

14. Relova v. Lavares, 9 Phil. 149.↩

15. Amor v. Florentino, G.R. No. 48384, October 11,

1943, 74 Phil. 403-436↩

16. Claridades, supra. ↩

17. Valdez v. Tabisula, G.R. No. 175510, July 28, 2008,
560 SCRA 332↩

18. Bogo-Medellin Milling Co., Inc. v. Court of Appeals,

G.R. No. 124699, July 31, 2003, 407 SCRA 518, 526.↩

19. Tolentino, Arturo M. Commentaries and Jurisprudence

on the Civil Code of the Philippines . Vol. II. 4 vols. Quezon
City: Central Professional Books, Inc., 1992., p. 354. ↩

20. See 4 Manresa 586-587. ↩

21. TS, Nov. 17, 1930 ↩

22. Larracas v. Del Rio, [CA] , 37 O.G. 287 ↩

23. See Art. 619 ↩

24. Art. 617 ↩

25. Art. 618 ↩

26. 4 Manresa 621 ↩

27. 4 Manresa 621; see also Art. 631 ↩

28. Paras, Edgardo Lardizábal, Civil Code of the

Philippines Annotated . Property, Volume II, 2021 edition.
Manila, Philippines: Published and exclusively
distributed by Rex Book Store, 2021., pp. 657-658. ↩

29. De Buen: 2-II Colin & Capitant 812.↩

30. I Camus 465-567.↩

31. I Ruggiero 716-726.↩

32. See discussion on Positive or negative easement↩

33. Tolentino, supra at pp. 354-355. ↩

34. Rabuya, Elmer T. Property . Manila: Rex Book Store,

2008., p. 502. ↩

35. An appurtenance is an appendage or that which

belongs to something else.↩

36. Paras, supra at p. 657. ↩

37. II Caguioa, Civil Code of the Phil., 1966 ed., 262.↩

38. Rabuya, supra. ↩

39. See 4 Manresa 584 ↩

40. 4 Manresa 584 ↩

41. See Art. 613, 1st par., NCC.↩

42. II Caguioa, Civil Code of the Phil., 1966 ed., 263.↩

43. Id., 262, citing the Decision of the Supreme Court of

Spain of February 4, 1920.↩

44. Rabuya, supra. ↩

45. Lectures on Jurisprudence, John Austin and Sarah

Austin, 1863 ed., p. 27.↩

46. II Caguioa, Civil Code of the Phil., 1966 ed., 263.↩

47. Art. 631(1), NCC.↩

48. Rabuya, supra at p. 503. ↩

49. See Relova v. Lavares, 9 Phil. 144 ↩

50. TS, Oct. 21, 1920 ↩