 USUFRUCT

 ARTS. 562-612
 Art. 562. Usufruct gives a right to enjoy the
property of another with the obligation of
preserving its form and substance, unless
the title constituting it or the law otherwise
provides.
 What is usufruct?
◦ A right to enjoy the property of another with the
obligation of preserving its form and substance.
◦ Right to enjoy the property of another temporarily,
including both the jus utendi and jus fruendi, with
the owner retaining the jus disponendi
◦ In essence, usufruct is nothing else but simply
allowing one to enjoy another’s property.
 CHARACTERISTICS OR ELEMENTS:
1. Essential- those without which it cannot be
termed usufruct.
a) It is a real right (whether registered in the Registry of
Property or not)
b) It is of temporary nature or duration
c) Its purpose is to enjoy the benefits and derive all
advantages from the object as a consequence of
normal use or exploitation.

2. Natural- that which ordinarily is present, but a

contrary stipulation can eliminate it because it is
not essential
a) The obligation of conserving or preserving the form
and substance (value) of the thing.
3. Accidental- those which may be present
or absent depending upon the stipulation
of the parties
a) Whether it be a pure or a conditional usufruct
b) The number of years it will exist
c) Whether it is in favor of one person or
several, etc.
 Usufruct Lease
Nature of right Real Personal
Creator of right Can be created only by the The lessor may or may not be
owner, or by a duly authorized the owner as when there is a
agent sub-lease or when the lessor is
only a usufructuary
Origin May be by law, by contract, by GR: by contract
will of testator, or by XPN: By law, (as in the case of
prescription an implied new lease, or when a
builder has built in good faith on
the land of another a building,
when the land is considerably
worth more in value than the
building.
Extent of enjoyment All the fruits and all the uses Certain uses only (those
and benefits of the entire stipulated)
property (generally)
Cause More or less passive owner Active owner or lessor who
who allows the usufructuary to makes the lessee enjoy
enjoy the object
Repairs and taxes Usufructuary to pay Lessee not generally under the
obligation to pay taxes or
undertake repairs
 Art. 563. Usufruct is constituted by law, by
the will of private persons expressed in acts
inter vivos or in a last will and testament,
and by prescription. (468)

 CREATION OF USUSFRUCT
◦ Usufruct may be classified according to
how it is created into:
1. Legal, or that created or declared by law
2. Voluntary, or that created by will of the parties
(an act inter vivos or an act mortis causa)
3. Mixed or that acquired by prescription
 KINDS OF
USUFRUCTUARY 3. As to effectivity or
◦ Usufruct may be extinguishment
 Pure
1. As to extent of
 With a term (may be
object suspensive or
 Total (constituted on resolutory)
the whole of a thing)  Conditional (may be
 Partial (constituted suspensive or
only on a part of a resolutory)
thing)
4. As to subject
2. As to number of matter
beneficiaries  Over things (tangible
 Simple (only one) property)
 Multiple (several  Over rights (intangible
usufructuaries) property which are not
 Simultaneous, or intransmissible)
 Successive
 RIGHTS OF THE USUFRUCTUARY
 Art. 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in
usufruct. With respect to hidden treasure which may be
found on the land or tenement, he shall be considered a
stranger. (471)
 Classifications of the rights of the usufructuary
◦ As to the thing and its fruits
 To receive the fruits of the property in usufruct and half of
the hidden treasure he accidentally finds on the property
 To enjoy any increase which the thing in usufruct may
acquire through accession
 To personally enjoy the thing in usufruct or lease it to
another
 To make on the property in usufruct such improvements or
expenses he may deem property and to remove the
improvements provided no damage is caused to the
property
 To set-off the improvements he may have made on the
property against any damage to the same
 To retain the thing until he is reimbursed for advances for
extraordinary expenses and taxes on the capital
◦ As to the usufruct itself
 To alienate (or mortgage) the right of usufruct
except parental usufruct
 In a usufruct to recover property or a real right,
to bring the action and to oblige the owner
thereof to give him proper authority and
necessary proof, and
 In a usufruct of part of a common property, to
exercise all the rights pertaining to the co-owner
with respect to the administration and collection
of fruits or interests from the property
 ◦ As to advances and damages
 To be reimbursed for indispensable
extraordinary repairs made by him in an amount
equal to the increase in value which the property
may have acquired by reason of such repairs
 To be reimbursed for taxes on the capital
advanced by him, and
 To be indemnified for damages caused to him by
the naked owner.

 The usufructuary is given the right to enjoy the

property in usufruct and he is entitled to the
fruits. The usufructuary has the right to receive
all the fruits except:
◦ where the usufruct is constituted only on a part of the
fruits of a thing or
◦ where there is an agreement to the contrary.
 The naked owner retains and can exercise all
the rights as owner over the property limited
only by the right of enjoyment of the
usufructuary.

 Products which when taken from the property

diminishes its substance are not to be treated
as fruits. They form part of the capital and
belong to the naked owner, and not to the
usufructuary in the absence of a contrary intent
between the parties.

 The usufructuary is not entitled to any hidden

treasure because it’s not considered as ‘fruits’.
However, as a stranger, he is entitled to ½ if he
is the finder.
 RIGHT OF THE USUFRUCTUARY TO PENDING NATURAL
AND INDUSTRIAL FRUITS (ART. 567)
◦ This article does not apply to civil fruits.
◦ For fruits growing at the beginning of usufruct, they
belong to the usufructuary who is not bound to refund
to the owner the expenses of cultivation and
production incurred.
 However, in case the expenses were incurred by innocent third
persons, the usufructuary under Art 443, pursuant to the last
paragraph of Art 567, has the obligation to pay the expenses made.

◦ For fruits growing at the termination of the usufruct,

they belong to the owner but he is bound to reimburse
the usufructuary the ordinary cultivation expenses out
of the fruits received.
◦ Manresa opines that if at the termination of the
usufruct, force majeure should prevent the
usufructuary from gathering the fruits, said fruits shall
belong to him and not the naked owner.
 LEASE BY THE USUFRUCTUARY
◦ The usufructuary may lease the property in
usufruct to another.

◦ If the usufrcut should expire before the

termination of the lease, the usufructuary
or his heirs and successors are entitled
only to the rents corresponding to the
duration of the usufruct. The rents for the
remaining period of the lease belong to the
owner.
 USUFRUCT CONSTITUTED ON CERTAIN
RIGHTS (Art. 570)
◦ Every benefit or payment shall be considered and
distributed as civil fruit of such right.
◦ Payment and benefits that accrue after the
termination of the usufruct belong to the owner.
◦ The date when the benefits accrue determines
whether they should belong to the usufructuary or
to the owner. Art 570 applies whether or not the
date of distribution of benefits is fixed.

◦ Case doctrine
 A stock dividend is considered civil fruit and
belongs to the usufructuary. (Bachrach v Seifert)
 Art. 571. The usufructuary shall have the right
to enjoy any increase which the thing in
usufruct may acquire through accession, the
servitudes established in its favor, and, in
general, all the benefits inherent therein.
(479)
 EXETENT OF RIGHTS OF USUFRUCTUARY
◦ The usufructuary is generally entitled to all the
benefits that the thing in usufruct can give including
any increase by accession and servitudes
established in his favor.
◦ Reason is that usufruct covers the entire jus fruendi
and jus utendi.
 TRANSACTIONS BY THE USUFRUCTUARY
(ART 572)
◦ With respect to the thing in usufruct, he may lease
it even without the owner’s consent but not being
the owner, the usufructuary cannot alienate,
pledge or mortgage the thing itself. He may sell
future crops subject to the rule that those
ungathered at the time when the usufruct
terminates belong to the owner.

◦ When the things given in usufruct cannot be used

without being consumed or were appraised when
delivered, the usufructuary may dispose of them.
◦ With respect to the right of usufruct, since the usufructuary
is the owner of the right itselt, he may alienate, pledge or
mortgage it, even by gratuitous title.
 But the legal usufruct of the parent over his or her
unemancipated children cannot be alienated, pledged, or
mortgaged for the right is personal and intransmissible
burdened as it is by important obligations of the parent for the
benefit of the children.
 A usufruct given in consideration of the person of the
usufructuary to last during his lifetime is also personal, and
therefore, intransmissible.
 As a rule, all contracts entered into by the usufructuary shall
terminate upon the expiration of the usufruct or earlier, except
rural leases which continue during the agricultural year.

◦ Case doctrine
 A usufructuary of rents, as a corollary to the right to all the rents,
to choose the tenant, and to fix the amount of the rent, necessarily
has the right to choose himself as the tenant, provided that the
obligations he has assumed towards the owner of the property are
fulfilled. (Fabie v David)
 USUFRUCT ON THINGS WHICH GRADUALLY
DETERIORATE (ART. 573)
◦ This article gives an instance of abnormal usufruct because
in the enjoyment of the property the usufructuary cannot
preserve its form or substance.
◦ Here the thing gradually deteriorates through wear and tear
or normal use.
◦ The usufructuary is not responsible for the deterioration due
to wear and tear nor is he required to make any repairs to
restore it to its formal condition. He needs only to return the
thing at the termination of the usufruct in the condition it
may be at that time.
◦ The usufructuary is liable for damage suffered by the thing
by reason of his fraud or negligence although such liability
may be set-off against the improvements he may have made
on the property.
◦ The usufructuary does not answer for deterioration due to a
fortuitous event. He is, however, obligated to make the
ordinary repairs needed by the thing.
 USUFRUCT ON CONSUMABLE THINGS (ART.
574)
◦ This is another instance of abnormal usufruct
because the thing in usufruct cannot be used
without being consumed, like money (but
that’s really a simple loan, where the
usufructuary can deal with the money as
owner.)
◦ The usufructuary shall have the right to make
use of the consumable thing.
◦ At the termination of the usufruct, he must:
 Pay its appraised value or
 If there was no appraisal made, either:
 Return the same quantity and quality, or
 Pay its current price at such termination.
 USUFRUCT OF JUDICIAL ACTION TO
RECOVER (ART. 578)
◦ This article applies if the purpose of the action is to
recover real property or personal property or real
right over real or personal property.

◦ The action may be instituted in the name of the

usufructuary (vs an agent who institutes the action
in the name of the principal).

◦ The usufructuary may oblige the owner to give him

the necessary authority to bring the action .

◦ In case of favorable judgment, the usufruct shall be

limited to the fruits, with the naked ownership
belonging to the owner. With the termination of the
case, the usufruct of the action comes to an end.
 RIGHT TO USEFUL AND ORNAMENTAL
IMPROVEMENTS
◦ Right to Introduce Improvements:
 Usufructuary has the right to introduce
improvements on the property held in usufruct;
 Whether the same be a useful improvement or
for mere pleasure;
 Subject to the limitation that he cannot alter the
form or substance of the property. (Art. 579)

◦ No right to demand reimbursement. Upon the

termination of the usufruct, the usufructuary is
not entitled to seek reimbursement for the
expenses which he incurred in connection with
the aforesaid improvements.
◦ Right which may be exercised over improvement:
 In relation to such improvements, the only rights
that may be exercised by the usufructuary are:
1. He may, at his option remove the improvements if
such removal is possible without damage to the
property; and
2. He may set-off the improvements against any damage
he has caused to the property held in usufruct.

◦ Right to remove: The right of the usufructuary to

remove the improvements is something potestative
with him. He may choose not to exercise it, in which
case, he may not be compelled to do so by the owner.
In the event, however, that he decides to exercise such
right, he may not be prevented by the owner from
doing so, even if the latter offers to pay for the value of
such improvements.
 RIGHTS AND OBLIGATIONS OF THE NAKED OWNER
◦ The naked owner may alienate the property in usufruct because the title
(dominium directum) remains vested in him.

◦ He may construct works, make improvements, or make new plantings

on the property in usufruct.

◦ The alienation by the naked owner cannot affect the usufruct which is
registered or known to the transferee.

◦ The naked owner, however, cannot:

 alter the form or substance of the property, or
 do anything thereon which may cause a diminution in the value of the usufruct,
or
 be prejudicial to the rights of the usufructuary,
 otherwise, he shall be liable for damages.

◦ The naked owner must:

 Respect leases of rural lands by the usufructuary for the balance of the
agricultural year (Art 572)
 Reimburse him for advances made for extraordinary repairs (Art 594), and
 Reimburse him for taxes on the capital (Art 597)
 USUFRUCT OF PART OF COMMON
PROPERTY (ART. 582)
◦ In case a co-owner gives the usufruct of
his share to a person, the usufructuary
shall exercise all the rights pertaining to
the co-owner regarding the administration
and the collection of the fruits or interest
from the property
◦ The usufructuary shall be bound by the
partition made by the owners of the
undivided property although he took no
part in the partition but the naked owner to
whom the part held in usufruct has been
allotted must respect the usufruct.
 OBLIGATIONS OF THE USUFRUCTUARY
◦ Classifications of obligations of the usufructuary
1. Those before the usufruct begins
a) Make an inventory of the property, which shall contain an
appraisal of the movables and a description of the
immovables
b) Give security
 Exemption from the obligation to give security:
1.When the donor has reserved the usufruct of the property
donated; and
2.In case of legal usufruct of the parents over the property of
their minor children living in their custody and their parental
authority, except when the parents contract a second
marriage or when the market value of the property of the
annual income of the child exceeds P50,000.
 Instances when Usufructuary may be relieved of obligations to
give security:
1.When no one will be injured.
2.When the enjoyment of the property subject of the usufruct is
to be acquired through caucion juratoria.
2. Those during the usufruct
a) Take care of the property (Art 589)
b) To replace with the young thereof animals that die or
are lost in certain cases when the usufruct is
constituted on flock or herd of livestock (Art 591)
c) To make ordinary repairs (Art 592, par 1)
d) To notify the owner of urgent extraordinary repairs
(Art 593)
e) To permit works and improvements by the naked
owner not prejudicial to the usufruct (Art 595)
f) To pay annual taxes and charges on the fruits (Art
596)
g) To pay interest on taxes on capital paid by the naked
owner (Art 597)
 h) To pay debts when the usufruct is constituted on the
whole of a patrimony (Art 598)
i) To secure the naked owner’s or court’s approval to
collect credits in certain cases (Art 599)
j) To notify the owner of any prejudicial act committed
by third persons (Art 601)
k) To pay for court expenses and costs regarding
usufruct (Art 602)

3. Those at the termination of the usufruct

a) To return the thing in usufruct to the naked owner
unless there is a right of retention (Art 612)
b) To pay legal interest for the time that the usufruct
lasts, on the amount spent by the owner for
extraordinary repairs (Art 594) and the proper interest
on the sums paid as taxes by the owner (Art 597), and
c) To indemnify the naked owner for any losses due to
his negligence or of his transferees. (Art 589-590)
 EXTINGUISHMENT OF USUFRUCT
◦ Causes or Grounds:
a. By the death of the usufructuary , unless contrary intention
clearly appears;
b. By the expiration of the period for which it was constituted, or
by the fulfillment of any resolutory condition provided in the
title creating the usufruct;
c. By merger of the usufruct and the ownership in the same
person;
d. By renunciation of the usufructuary;
e. By the total loss of the thing in usufruct;
f. By the termination of the right of the person constituting the
usufruct;
g. By prescription,
 Aside from the foregoing causes, usufruct is also extinguished: (1)
by the noncompliance with any condition agreed upon by the parties
as grounds for terminating the usufruct; (2) by the rescission or
annulment of the contract which is the source of the right of
usufruct; and (3) by any causes which extinguish legal usufruct.
 Art. 604. If the thing given in usufruct
should be lost only in part, the right
shall continue on the remaining part.
(514)

◦ To extinguish a usufruct, the loss must be

total, except as provided in Art 607 to 609
◦ If the loss in only partial, the usufruct
continues with the remaining part. But if
the partial loss may be so important as to
be considered total loss, the courts shall
determine.
◦ Usufruct cannot be constituted in favor of a town,
corporation or association for more than 50 years.

◦ Usufruct constituted on immovable whereby a

building is erected and the building is destroyed-
the usufruct is not extinguished an the
usufructuary has the right to make use of the land
and the materials.

◦ If the owner wishes to construct another building-

he has the right to occupy the land and to make
use of the materials, in which case, he shall be
obliged to pay the usufructuary, during the
continuance of the usufruct , the interest upon the
sum equivalent to the value of the land and the
materials.
◦ If the building had been insured and the
usufructuary shared in the payment of the
insurance- the usufructuary shall continue in the
enjoyment of the new building should one be
constructed or shall receive the interest on the
insurance indemnity if the owner does not wish to
rebuild.

◦ If the owner alone paid the insurance- the owner is

entitled to the full amount of the insurance
indemnity, but the usufruct continues over the land
and the materials of the building or in case the
owner chooses to rebuild the building, the
usufructuary is entitled only to the legal interest in
the value of the land and the materials but has no
right to the new building.
◦ Effect of Bad Use of the thing:
 A usufruct is not extinguished by bad use of the
thing held in usufruct.

 If the bad use or abuse of the thing should

cause considerable injury to the owner, the
latter may demand that the thing be delivered to
him, binding himself to pay annually to the
usufructuary the net proceeds of the same, after
deducting the expenses and the compensation
which may be allowed him for its administration.
 EASEMENT OR SERVITUDE DEFINED
◦ Easement or servitude has been defined 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 benefit of another
thing or person.”
◦ The definition in this article is not complete, being
limited to real easement.
◦ In view of the next article which refers to personal
easement, the term may be defined as an
encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different
owner or for the benefit of a community or one or more
persons to whom the encumbered estate does not
belong by virtue of which the owner is obliged to
abstain from doing or to permit a certain thing to be
done on his estate.
 ESSENTIAL FEATURES
◦ 1. It is a real right – it gives an action in rem or real
action against any possessor of the servient
estate
 Owner of the dominant estate can file a real
action for enforcement of right to an easement
 Action in rem: an action against the thing itself,
instead of against the person.

◦ 2. It is a right enjoyed over another property (jus

in re aliena) – it cannot exist in one’s property
(nulli res sua servit)
 When a dominant and servient estate have the
same owner, an easement is extinguished.
Separate ownership is a prerequisite to an
easement
◦ 3. It is a right constituted over an immovable by
nature (land and buildings), not over movables.
(Article 613)
 Immovable: used in its common and not in the legal
sense, meaning only property immovable BY NATURE
can have easements.

◦ 4. It limits the servient owner’s right of ownership for

the benefit of the dominant estate.
 Right of limited use but no right to possess servient
estate.
 There exists a limitation on ownership: the dominant
owner is allowed to enjoy or use part of the servient
estate, or imposes on the owner a restriction as to his
enjoyment of his own property.
 Being an abnormal limitation of ownership, it cannot be
presumed.
◦ 5. It creates a relation between tenements
 No transfer of ownership, but a relationship is created,
depending on the easement.

◦ 6. Generally, it may consist in the owner of the dominant

estate demanding that the owner of the servient estate
refrain from doing something (servitus in non faciendo)
or that the latter permit that something be done over the
servient property (servitus in patendo), but not in the
right to demand that the owner of the servient right to
demand that the owner of the servient estate do
something(servitus in faciendo) except if such act is an
accessory obligation to a preadial servitude (obligation
propter rem)
 Servient owner merely allows something to be done to his estate.
 EXCEPTIONS: Praedial servitudes
a. Right to place beams in an adjoining wall to support a structure
b. Right to use another’s wall to support a building
◦ 7. It is inherent or inseparable from estate to which
they actively or passively belong
 Easements are merely accessory to the tenements,
and a “quality thereof.” They cannot exist without
tenements.
 Easements exist even if they are not expressly
stated or annotated as an encumbrance of the
titles.

◦ 8. It is intransmissible – it cannot be alienated

separately from the tenement affected or benefited
 Any alienation of the property covered carries with
it the servitudes affecting said property. But this
affects only the portion of the tenement with the
easement, meaning the portions unaffected can be
alienated without the servitude.
◦ 9. It is indivisible
 Art. 618, Civil Code. Easements are indivisible. If the
servient estate is divided between two or more
persons, the easement is not modified, and each of
them must bear it on the part which corresponds to
him.

If it is the dominant estate that is divided between two

or more persons, each of them may use the easement
in its entirety, without changing the place of its use, or
making it more burdensome in any other way.

◦ 10. It has permanence – once it attaches, whether

used or not, it continues and may be used at anytime
 Perpetual: exists as long as property exists, unless it is
extinguished.
 Classification of Servitudes
1. As to recipient of benefits
a. Real or Praedial: exists for the benefit of a particular
tenement.
b. Personal: exists for the benefit of persons without a
dominant tenement ,e.g. usus habitatio (right to reside
in a house) and operae servorum (right to the labor of
slaves) in Roman Law

2. As to cause or origin
a. Legal: created by law, whether for public use or for the
interest of private persons
 Once requisites are satisfied, the owner of the dominant
estate may ask the Court to declare that an easement is
created.
 Example: Natural drainage of waters, Abutment of land,
Aqueduct, etc.
 b. Voluntary: Created by the will of the owners of the
estate through contract
 There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create
easements, they can only declare the existence
of one, if it exists by virtue of the law or will of
the parties.

3. As to its exercise (Article 615)

 This classification is important in determining
prescription: only continuous and apparent
easements can be created by prescription
 Continuous: Use is or may be incessant, without the
intervention of any man
 Discontinuous: Used at intervals, and dependent upon
the acts of man.
4. As indication of its existence
 Also important for purposes of prescription
 Apparent: Made known and continually kept in view by external
signs that reveal the use and enjoyment of the same
 Non-apparent: No external indication of their existence

5. By the object or obligation imposed (Article 616)

a. Positive: Imposes upon the owner of the servient estate
the obligation of allowing something to be done, or doing
it himself.
b. Negative: Prohibits the owner of the servient estate from
doing something which he could lawfully do if the
easement did not exist.
 Prescription starts to run from service of notarial
prohibition)
 e.g. Negative Easement of Light and View: An opening is
made on the wall of the dominant estate, and the easement
consists of imposing upon the servient estate the obligation
to not build anything that would obstruct the light
 General Rules Relating to Servitudes
1. Nulli res sua servi: No one can have a servitude over one’s
own property
2. Servitus in faciendo consistere nequit: A servitude cannot
consist in doing
 Although some easements seem to impose a positive
prestation upon the owner of the servient estate, in reality,
the primary obligation is still negative.
 Illustration: Under Article 680: the owner of a tree whose
branches extend over to a neighboring property is required
to cut off the extended branches, but the real essence of
the easement is the obligation NOT TO ALLOW the
branches of the tree to extend beyond the land
3. Servitus servitutes esse non potes: There can be no servitude
over another servitude
4. A servitude must be exercised civiliter – in a way least
burdensome to the owner of the land
5. A servitude must have a perpetual cause
 Acquisition of Easement:
1. By title. All easements.
a. Continuous and apparent easements (Art 620)
b. Continuous and non-apparent easements (Art
622)
c. Discontinuous easements, whether apparent or
non-apparent
2. By prescription of ten years – only
continuous and apparent easements
3. By deed of recognition (Art 623)
4. By final judgment
5. By apparent sign established by the owner
of two adjoining estates (Art 624)
◦ Acquisition by title or prescription
 Only continuous and apparent easements may
be acquired either by virtue of a title or by
prescription in 10 years.
 By title, it refers to the juridical act which gives
birth to the easement, such as law, donation,
contract and will of the testator.
 This article fixes ten years as the period of
prescription, regardless of good faith or bad
faith of the possessor and whether or not he has
just title.
 The general rules on prescription do not apply,
the only requirement being that there be adverse
possession of the easement for ten years.
 Rights and Obligations of Owners of Dominant
and Servient Estates
◦ A. Of Dominant Estate
1. Right of owner of dominant estate (Limited Jus
Utendi: limited by the nature of the easement itself)
a. Exercise all rights necessary for the use of the
easement (Art. 625, NCC)
b. Make on the servient estate all works necessary for
the use and preservation of the servitude (Art. 627
par. 1, NCC)
c. Renounce the easement if he desire to exempt
from contributing necessary expenses (Art 628,
NCC)
d. Ask for mandatory injunction to prevent
impairment of his right. (Resolme v. Lazo, 27 Phil.
416)
2. Obligations of the owner of dominant
estate:
a. He cannot alter the easement or render it
more burdensome. (Art 627 par. 1, NCC)
b. He shall notify the servient owner of works
necessary for the use and preservation of
the servitude. (Art. 627 par.2, NCC)
c. He must chhose the most convenient time
and manner of making the necessary works
as to cause the least inconvenience to the
servient owner.
d. If there are several dominant estates, he
must contribute to the necessay expenses
in proportion to the benefits derived from
the works.
◦ B. Of Servient Estate
1. Rights of owner of servient estate
a. Retain the ownership of the portion of the estate on
which the easement is imposed
b. Make use of the easement unless there is an
agreement to the contrary. (Art. 628 par 2, NCC)
c. Change the place or manner of the use of the
easement, provided it be equally convenient. (Art 629
par. 2, NCC)

2. Obligations of the servient estate

a. He cannot impairt the use of the easement.
b. He must contribute to the necessary expenses in
case he uses the easement, unless otherwise agreed
upon. (Art 628 par. 2, NCC)
 Extinguishment of Easements
1. Merger of ownership of the dominant and servient
estate
2. Annulment of the title to the servitude
3. Redemption agreed upon
4. Impossibility to use the easement
5. Non-User: 10 years
6. Expiration of the term or fulfillment of the resolutory
condition
7. Bad Condition- when either or both estates fall into such
a condition that the easement could not be used.
8. Resolution of the right of grantor to create the easement
(as when the vendor a retro redeems the land)
9. Expropriation of the servient state
10. Waiver by the dominant owner gathered from the
positive acts.
 Parties to an Easement
◦ Dominant Estate- refers to the
immovable for which the easement
was established
◦ Servient Estate- the estate which
provides the service or the benefit.
◦ A. Law governing legal easements
1. For public easements
a. Special laws and regulations relatingthereto
(ex: PD 1067 and PD 705)
b. By the provisions of Chapter 2, Title VII, Book
II, NCC

2. For private legal easements

a. By agreement of the interested parties
whenever the law does not prohibit it and no
injury is suffered by a 3rd person
b. By the provisions of Chapter 2, title VII, Book II
◦ B. Private legal easements provided for by the
NCC
 THOSE ESTABLISHED FOR THE USE OF WATER OR
EASEMENTS RELATING TO WATERS—
1. Natural drainage of waters
a. REQUISITE: Waters must flow naturally, without the
intervention of man
b. DUTIES:
 DOMINANT OWNER (HigherEstate)
 Cannot construct works to increase the burden e.g.
canals draining other lands into the lower estate,
works which prevent absorption of water like
pavements which make the ground more impervious
than it is.
 May demand that the servient owner allow him to make
works necessary to remove obstructions impeding
natural passage

 SERVIENT OWNER (Lower Estate)

 Cannot make works which would impede the servitude
e.g. dams which would block the natural flow, walls,
ditches that enclose the tenements.
 Can construct works that he may deem necessary to
prevent damage to himself, so long as he does not
cause damage to inferior tenements
2. Easements on land along riverbanks
◦ Article 638, Civil Code. The banks of rivers and
streams, even in case they are of private
ownership, are subject throughout their entire
length and within a zone of three meters along
their margins, to the easement of public use in the
general interest of navigation, floatage, fishing
and salvage.

Estates adjoining the banks of navigable or

floatable rivers are, furthermore, subject to the
easement of towpath for the exclusive service of
river navigation and floatage.

If it be necessary for such purpose to occupy

lands of private ownership, the proper indemnity
shall first be paid.
3. Abutment of a dam
 Easement of abutment of a dam may be
established after payment of proper indemnity.
 REQUISITES:
1. Construction of dam necessary for the use of
any other continuous or discontinuous
stream.
2. Person who is to construct the dam is NOT
the owner of the banks or lands which must
support the dam.

4. Stop lock and sluice gate

 REQUISITES:
1. Can be imposed only for reasons of public
use in favor of a town or village;
2. After payment of proper indemnity
5. Aqueduct
 Any person wishing to use upon his own
estate any water can make it flow through
intervening estates with obligation to
indemnify owners of such estates
 Considered as a continuous and apparent
easement, even though the flow of water
may not be continuous
 Existing structures cannot be injured to
establish the easement.
 RIGHT OF SERVIENT OWNER: May fence or
build over the aqueduct in such a manner as not
to cause any damage, or render impossible any
necessary repairs and cleanings
◦ REQUISITES:
1. That he can dispose of the water;
2. That it is sufficient for the use for which it is
intended;
3. That the proposed right of way is the most
convenient and the least onerous to third
persons;
4. To indemnify the owner of the servient estate
in the manner determined by the laws and
regulations.
 Easement of Right of Way

◦ DEFINED
 Easement or privilege by which one person in a particular
class of persons is allowed to pass over another land,
usually through one particular path or line

◦ REQUISITES
1. The property is surrounded by estate of others and there is
no adequate outlet to a public highway;
2. It must be established 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;
3. There must be payment of the proper indemnity;
4. The isolation should not be due to the proprietor’s own acts
◦ PROPER INDEMNITY
1. If the passage is permanent, pay the value of the land
occupied by the path plus damages;
2. If temporary, pay for the damages caused

◦ CLASSIFICATION OF RIGHT OF WAY

1. Private
2. Public

Art. 650. The easement of right of way shall be

established 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. (565)
◦ Art. 651. The width of the easement of
right of way shall be that which is sufficient
for the needs of the dominant estate, and
may accordingly be changed from time to
time. (566a)
 WIDTH OF PATH
 The width may be modified from time to time
depending on the reasonable needs of the dominant
estate
 RULE IF LAND OF VENDOR IS ISOLATED
FROM THE HIGHWAY
◦ Indemnity included in the purchase price—the buyer
is the owner of the dominant estate
◦ Art. 653. In the case of the preceding article, if it is
the land of the grantor that becomes isolated, he
may demand a right of way after paying a indemnity.
However, the donor shall not be liable for indemnity.
(n)

 RULES IF GRANTOR OR GRANTEE’S LAND IS

ENCLOSED
1. If the enclosing estate is that of the grantor, the
grantee doesn’t pay indemnity for the easement.
2. If the enclosed estate is that of the grantor, the
grantor must pay indemnity
 OWNERSHIP OF, REPAIRS AND TAXES ON,
THE PATH
1. Even though permanent, the path belongs to the
servient estate, and he pays all the taxes
2. But the dominant estate—
a. Should pay for repairs
b. Should pay proportionate share of taxes to the
servient estate

 CAUSES FOR EXTINGUISHMENT OF THE

EASEMENT OF RIGHT OF WAY
1. Opening of a new road
2. Joining the dominant estate to another
 Easement of Party Wall
◦ PARTY WALL DEFINED
 Wall at the dividing line of estates
 Co-ownership governs the wall, hence, the
party wall is necessarily a common wall

◦ Presumption of Party Wall

 A party wall is presumed when a wall
divides
 a. Adjoining buildings
 b. Gardens or yards situated in cities,
towns or in rural communities
 c. Rural lands
◦ This presumption may be rebutted if
there is a contrary
 a. Title; or
 b. Exterior sign or
 The following are exterior signs which will be
rebut the presumption
 i. A window or opening in the dividing wall
 ii. On 1 side, the wall is straight and then the
wall juts out
 A buttress is placed part where the wall juts out. This is
done in order to prevent the neighbor from invading his
property.
 iii. The entire wall is built within the boundary of
1 of the estates (not along the boundary of the 2
estates)
  iv. When the wall supports the
building of 1 estate but not the other
 v. When the dividing wall between the
courtyards, gardens, and tenements
is constructed in such a way that the
coping sheds the water upon only 1
of the estates
 vi. Stepping stones only on 1 side of
the wall
 vii. When 1 estate is enclosed but the
other is not
 c. Proof
◦ RULES
A. Cost of repairs and construction, maintenance
of fences, hedges, ditches and drains shall be
borne by ALL the owners of the lands or
tenements
 EXCEPT: if the defects were occasioned only by one
owner
B. An owner may exempt himself from
contributing to the expenses by renouncing his
part-ownership, UNLESS the party wall
supports a building he owns.

Renunciation refers not only to the wall, but

also to the land on which it is constructed.
C. An owner of a building supported by a party
wall who desires to demolish his building, may
also renounce his part ownership of the
wall.BUT he must still bear the cost of all the
repairs and work necessary to prevent any
damage to the party wall.

D. Every owner may increase the height of the

wall, at his own expense and paying for
damages caused by the work. He must also
pay for:
1. Expenses of maintaining the wall in the part newly
raised, or deepened foundation;
2. Indemnity for increased expenses necessary for
the preservation of the wall by reason of the
greater height or depth which has been given it.
 3. Reconstruction expenses in case the party wall
cannot bear the increased height.
4. If increased thickness is needed, the owner shall
give the space required from his own land
5. Other owners may acquire part ownership of the
increased height, depth or thickness of the wall,
by paying proportionately the value of the work
at the time of the acquisition, and of the land for
its increased thickness

E. Part-owners may use the party wall IN

PROPORTION to the right he may have in the
co-ownership, without interfering with the
common and respective uses of the others.
 E.g. A ½ interest in the wall = ½ payment for
expenses = ½ use as in one can insert beams in
the wall up to ½ thickness
 Easement of Light and View
◦ 2 Different Easements
1. Easement of light (luminis)
 The easement of light is the right to
make an opening not greater than 30
centimeters square and to receive
light from another‘s tenement.
 The opening must be made on the
ceiling or if on the wall, there must be
an iron grating (so you can‘t look out,
otherwise, it becomes an easement of
light and view).
 No minimum distance required.
2. Easement of light and view (luminis et prospectus)
 The easement of light and view is the right to open
windows and apertures and to bar the owner of the
servient estate to block the view.
 The easement of view necessarily carries with it the
easement of light.
 Direct View: There must be a minimum distance of 2
meters from the wall of the opening and the contiguous
property.
 Oblique View: There must be a minimum distance of 60
centimeters from the wall of the opening and the
contiguous property.
 Non-observance of the minimum distances will not
create an easement.
 The owner of the servient estate cannot build within 3
meters from the boundary between the servient and the
dominant estate. Thus, there is 5 meters between the
wall of the opening and any structure of the servient
estate.
 The obligation not to build higher accompanies the
easements of light and view.
◦ Acquiring by Prescription
a. Start counting from the 1st act constituting the
exercise of the easement was performed – if
the opening through which the light and view
passes is a party wall.
 Rationale: If the neighbor does not like the
opening, he can always close it.

b. Start counting from the time when the owner of

the dominant estate serves a notarial
prohibition on the owner of the prospective
servient estate – if the opening is made on the
dominant owner‘s own wall.
 Rationale: The neighbor cannot close the
opening since it‘s in the dominant owner‘s
property.
 Drainage of Building
◦ What is an easement of drainage of buildings?
 Easement of drainage of buildings is the right to
divert or empty the rain waters from the one’s own
roof or shed to the neighbor’s estate either drop by
drop or through conduits.

◦ Rainwater not to fall on land of another

 This article does not really create a servitude, it
merely regulates the use of one’s own property by
imposing on him the obligation to collect its rain
waters so as not to cause damage to his neighbors,
even if he be a co-owner of the latter.
 It’s an exemption to Article 637 which obliges lower
estates to receive the waters which naturally flow
from higher estates.
◦ Easement giving outlet to rainwater where
house surrounded by other houses
 The legal easement of drainage may be
demanded subject to the following
conditions:
 There must be no adequate outlet to the
rainwater because the yard or court of a
house is surrounded by other houses;
 The outlet to the water must be at the point
where egress is easiest, and establishing a
conduit for drainage; and
 There must be payment of proper
indemnity.
 Easement Against Nuisance
◦ The Code considers the easement against
nuisance as negative because the
proprietor or possessor is prohibited to do
something which he could lawfully do were
it not for the existence of the easement.
However, a nuisance involves any act of
ormission which is unlawful. So, these two
articles are more of a restriction on the
right of ownership than a true easement.
 Lateral and Subjacent Support
◦ Proprietor prohibited from making dangerous
excavations
 Support is lateral when the supported and the supporting
lands are divided by a vertical plane.
 Support is subjacent when the supported land is above and
the supporting land is beneath it.
 An owner, by virtue of his surface right, may make
excavations on his land, but his right is subject to the
limitation in Article 684 that he shall not deprive any adjacent
land or building of sufficient lateral or subjacent support.
 Any stipulation or testamentary provision allowing
excavations that violate Article 684 is void. The limitation
applies not only to existing buildings but also to future
constructions.
 The notice required in Article 687 is mandatory except where
there is actual knowledge of the proposed excavation.
 The adjacent owner is entitled to injunctive relief and to
damages for violation of the provisions.