Four Things You Need to Establish the Easement of Right of Way

This article talks about the necessary elements and requisites to demand the easement of right of way.

What is the easement of right of way?

Is your land enclosed by other lands such that there is no adequate outlet for you to pass and reach the highway or streets? Perhaps, you will need to secure the easement of right of way from another landowner.

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 [Art. 649, Civil Code].  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 [Unisource Commercial and Development Corporation vs. Chung, G.R. No. 173252, 17 July 2009]. Easements are established either by law or by the will of the owner. The former is called legal, and the latter, voluntary easements [Private Development Corporation of the Philippines v. Court of Appeals, G.R. No. 136897, 22 November 2005].

The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate [Art. 613, Civil Code]. Thus, if your land is the one enclosed, you are considered as the dominant estate while the land enclosing you from which you will demand a right of way is considered as the servient estate.

What are the requisites to establish the right to an easement of right of way?

However, do not get too excited and immediately demand for a right of way.  Such right does not exist at all times. In the case of Spouses Williams vs. Zerda [G.R. No. 207146, 15 March 2017], the Supreme Court held that an entitlement to the easement of right of way requires that the following requisites must be met:

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

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

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

4. 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).

There must be payment to acquire an easement of right of way.

Yes, you heard it right. You must pay to acquire an easement of right of way. It is NOTfree!  How much then is the indemnity to the servient estate?  Article 649 is instructive and states:

“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.”

You cannot demand an easement of right of way if the isolation is due to your fault.

Of course, you cannot cry foul when you yourself are the cause of the problem. Thus, the right of the dominant proprietor to have a right of way shall not be granted when the isolation of his estate is due to his own acts as when he constructs a permanent structure on that portion of his land which gives him sufficient access to the public highway even when he can do so without inconvenience and additional cost on another portion [Hector S. de Leon, Comments and Cases on Property, p. 520 (2011) 6th ed.]. As the saying goes, you reap what you sow!

The right of way should be at the point least prejudicial to the servient estate.

Yes, you heard it right again. The primary consideration in determining the right of way is the point least prejudicial to the servient estate.  Of course, it is ideal if the right of way is the shortest distance from the dominant estate to the public highway.  However, that is not the case at all times.

Where there are several tenements surrounding the dominant estate, and the easement may be established on any of them, the one where the way is shortest and will cause the least damage should be chosen [Spouses Sta. Maria vs. Court of Appeals, G.R. No. 127549, 28 January 1998]. The criterion of least prejudice or injury to the servient estate shall be observed although the distance may not be the shortest or is even the longest. This is a question of fact to be determined by the court in each particular case [Hector S. de Leon, Comments and Cases on Property, p. 521 (2011) 6th ed.]

So, there you have it folks! Make sure that you comply with the requisites enumerated above before demanding a right of way from your neighbor!


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