How voluntary easement of right of way is extinguished

Imagine you buy a a parcel of land and it appears that the land title contains an annotation of encumbrance of easement of right of way, after its previous owner voluntarily constituted an easement of right of way in favor of your neighboring land.

Can you as new owners demand cancellation of right of way?

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.

Easements are established either by law or by the will of the owner. The former is called legal, and the latter, voluntary easement. (Private Development Corporation v. Court of Appeals, G.R. No. 136897, November 22, 2005, Ponente: Honorable Former Associate Justice Cancio C. Garcia)

In this case, what was constituted was a voluntary easement. The concern is whether you, as the new owner, may demand the cancellation of said easement considering that both dominant and servient estates belong to new owners, and that the servient estate has access to public road.

In this regard, there is a Supreme Court decision which clarifies how voluntary easement may be extinguished.

In the case of Unisource Commercial v. Chung (G.R. No. 173252, July 17, 2009, Ponente: Honorable Former Associate Justice Leonardo A. Quisumbing), the Supreme Court explained:

"... As we have said, the opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. A voluntary easement of right of way, like any other contract, could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate.

"Neither can petitioner claim that the easement is personal only to Hidalgo since the annotation merely mentioned Sandico and Hidalgo without equally binding their heirs or assigns. That the heirs or assigns of the parties were not mentioned in the annotation does not mean that it is not binding on them. Again, a voluntary easement of right of way is like any other contract. As such, it is generally effective between the parties, their heirs and assigns, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law...

"We also hold that although the easement does not appear in respondents' title over the dominant estate, the same subsists. It is settled that the registration of the dominant estate under the Torrens system without the annotation of the voluntary easement in its favor does not extinguish the easement. On the contrary, it is the registration of the servient estate as free, that is, without the annotation of the voluntary easement, which extinguishes the easement."

Applying the aforementioned decision, it is clear that change of ownership of dominant and servient estates, and access to public road by servient estate are not valid grounds to extinguish a voluntary easement. Once attached, the easement of right of way survives and remains attached as long as the property exist, unless the easement is extinguished. As mentioned above, the voluntary easement of right of way may be extinguished by subsequent agreement between owners of dominant and servient estates, or by renunciation of the owner of dominant estate.

Source: Manila Times

The Law On Easement Of Right Of Way

An Easement has been defined as a privilege to pass over the land of another, whereby the holder of the easement, called the Dominant Estate, acquires only a reasonable and usual enjoyment of the property, and the owner of the land, called the Servient Estate, retains the benefits and privileges of ownership consistent with the easement.

Simply put, Easement of right of way is an easement or a privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually through one particular path or line.

Easement of Right of Way can be found in Art. 649 of the Civil Code of the Philippines, stating that “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 property indemnity.”

The Supreme Court, in the case of Sps. Bernabe et. al. vs. Sps Bardilas, et.al (G.R. No. 163157, June 27, 2016), quoted its decision rendered in Valdez v. Tabisula, defined Easement or Servitude 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 this property for the benefit of another things or person.”

An easement may either be compulsory or not compulsory, the latter being a situation wherein which the isolation of the immovable is due to the proprietor’s own acts.

Requisites of compulsory easement of way.

The requisites of compulsory easement of way can be summarized as follows:

1. That the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway;

2. After the payment of property indemnity

3. That the isolation was not due to acts of the proprietor of the dominant estate

4. That the right of way claimed is at the point least prejudicial to the servient estate; and in so far as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.

It must be reasonable and necessary.

To justify the imposition of this servitude there must be a real, not fictitious or artificial necessity for it. The servitude must be such as to meet the requirements of the dominant tenement. The extent of the right of way must follow and be adapted to the beneficial use for which the dominant tenement is intended.

Adequate outlet to a public highway.

The servient estate can demand from the dominant estate the right of easement of a right of way in order to gain access to a public road or highway. When an isolated estate, the dominant estate, has no access to a public road highway, the owner of such estate can demand from the surrounding estate or estates, the servient estate, a passageway to the public highway.

This may be demanded when:

1. There is absolutely no access to a public highway, and

2. When even if there is one, it is difficult or dangerous to use, or is grossly insufficient.

Easement may also be demanded when access to the public highway is inadequate. However, in the case of Reyes v. Sps. Valentin and Ramos (G.R. No. 194488, February 11, 2015), the Supreme Court explained that the convenience of the dominant estate’s owner is not the basis for granting an easement of right of way, especially if the owner’s needs may be satisfied without imposing the easement. Thus, mere convenience for the dominant estate is not what is required by law as the basis of setting up a compulsory easement.

The point least prejudicial to the servient estate.

Art. 650 of the Civil Code of the Philippines provides that in determining the existence of an easement of right of way, the requirement of least prejudice to the servient estate “trumps “distance between the dominant estate and the pubic highway.

It shall be established upon two criteria:

(1) at the point least prejudicial to the servient state; and

(2) where the distance to a public highway may be the shortest.

The Supreme Court had already affirmed the preferred status of the requirement of “least prejudice” over distance of the dominant estate to the public highway. If these two (2) 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 shortest.

Source: cmslawph