EASEMENT OR SERVITUDES

DEFINITION

It is a real right, constituted on another’s property, corporeal and immovable whereby the owner of the latter must refrain from doing or allowing somebody else to do something on his property, for the benefit of another person or tenement

It is an encumbrance imposed upon an immovable for the benefit of a community or one or more persons (personal easements) or for the benefit of another immovable belonging to a different owner (real or predial easement)

EASEMENT V. SERVITUDES

EASEMENT	SERVITUDE
Used in common law countries	Used in civil law countries
Always real	May be real or personal
The right enjoyed	Burden imposed upon another

· The two terms are used synonymously in the Civil Code although it is more partial to easement because it is better known and well implanted in the legal field in the Philippines

CLASSIFICATIONS OF EASEMENT

1. As to recipient of benefit:

(a) Real – when the easement is in favour of another immovable (Art. 613)

(b) Personal

n when it is in favour of a community or of one or more persons (Art. 614)

n Unlike a real easement, personal easement does not require two immovables.

n The servitude is for the benefit alone of the persons enumerated and not a predial servitude that inures to the benefit of whoever owns the dominant estate. Hence, the owner of the servient estate may refuse to extend the said easement to the successors-in-interest of the persons for whose benefit the servitude exists.

(1) Public -- if it is vested in the public at large or in some class of indeterminate individuals

(2) Private -- if it is vested in a determinate individual or certain persons

2. As to its source (Art. 619):

(a) Voluntary

n when the easement is established by the will or agreement of the parties or by a testator

n Voluntary easements must be recorded in the Registry of Property in order not to prejudice third persons

(b) Legal

n when it is imposed by law either for public use or in the interest of private persons

n When the court says that an easement exists, it is not creating one (hence, there are no judicial easements); it merely declares the existence of an easement created either by law or by the parties or testator.

3. As to exercise:

(a) Continuous

n those the use of which is or may be incessant, without the intervention of any act of man

n it is not necessary that the use be incessant; it is sufficient that the use may be so

(b) Discontinuous

n they are used at intervals and depend upon the acts of man

4. As to whether or not its existence is indicated (Art. 615):

(a) Apparent

n those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same

n To constitute an apparent easement, it is not necessary that its sign be seen; it is sufficient if it may be seen or known on inspection

(b) Non-apparent

n those which show no external indication of their existence

5. As to duty of servient owner (Art. 616):

(a) Positive

n the owner of the servient estate is obliged (a) to allow something to be done on his property (servitus in patendo) or (b) to do it himself (servitus in faciendo)

n also termed “servitudes of SUFFERANCE or INTRUSION or SERVICE,” because something is being done on the servient estate

(b) Negative

n the owner of the servient estate is PROHIBITED to do something which he could lawfully do were it not for the existence of the easement

n may also be called “servitudes of ABSTENTION or LIMITATION or RESTRICTION’

6. According to the right given:

(a) Right to partially use the servient estate

(b) Right to specific materials or objects from the servient estate

(d) Right to impede or prevent the neighboring estate from performing a specific act of ownership

EASEMENT V. LEASE

EASEMENT	LEASE
Always a real right, whether the easement be a real or personal easement	a real right only when it is registered or when the lease of real property exceeds one year.
there is rightful limited use WITHOUT ownership or possession.	there is rightful and limited use AND possession WITHOUT ownership
can refer only to immovables	may involve real or personal property.

EASEMENT V. USUFRUCT

EASEMENT	USUFRUCT
Imposed only on real property	May involve either real or personal property
Limited to a particular or specific use of the servient estate	Includes all the uses and the fruits of the property
A non-possessory right over an immovable	Involves a right of possession in an immovable or movable
Not extinguished by the death of the dominant owner	Extinguished by the death of the usufructuary

SIMILARITIES:

(a) Both are real rights

(b) Both right may be registered

EASEMENT ESTABLISHED ONLY ON IMMOVABLE

Easements cannot be imposed on personal property but only on immovable. However, the term “immovable,’’ as used in the law, must be understood in its common and not in its legal sense. What the law treats of are not all immovables as defined by the Civil Code but only those which are so by their nature.

CHARACTERISTICS OF EASEMENT

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 is a jus in re aliena (a real right that may be alienated although the naked ownership is maintained)

4. There is inherence or inseparability, from the estate to which it belongs (Art. 617)

n indicates that independently of the immovable to which they are attached, easements do not exist

n Easements cannot be sold or donated or mortgaged independently of the real property to which they may be attached.

n If the dominant estate is alienated, such alienation carries with it also the easements established in its favor even if they are not annotated as an encumbrance on the certificate of title

n An easement is extinguished or cut-off, however, by the registration of the servient estate under the Torrens system without the easement being annotated on the corresponding certificate of title

5. It is indivisible even if the tenement be divided

n Partition or division of an estate does not divide the easement, which continues to be complete in that each of the dominant estates can exercise the whole easement over each of the servient estates, but ONLY on the PART corresponding to each of them.

n If the servient estate is divided, each new owner must bear the easement but only with respect to the part corresponding to him

n If it is the dominant estate that is divided, each owner can exercise the whole easement over each of the servient estates subject to the condition that the place of easement shall not be changed and the easement shall not be more burdensome

6. it is intransmissible, unless the tenement affected be also transmitted or alienated

7. it is perpetual, as long as the dominant and/or the servient estate exists unless sooner extinguished by the causes enumerated in the law

8. It is a limitation or encumbrance on the servient estate for another’s benefit

· It is essential that there be a BENEFIT otherwise there would be no easement.

· It is not essential that the benefit be exercised. What is vital is that it can be exercised.

· It is not essential for the benefit to be very great.

· The benefit 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.

· The benefit 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.

· The exercise is naturally restricted by the needs of the dominant estate or of its, such needs being dependent upon the progress of civilization

· Easements, being an ABNORMAL restriction on ownership, are NOT PRESUMED, but may be imposed by LAW.

Cassie Lost in Lawst School

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EASEMENTS IN GENERAL