Were you surprised to find out that you could not easily reach your property? Did you notice that your lot had no direct vehicular or pedestrian access from and to the main road? Fortunately, these concerns can be addressed by securing an Easement of Right of Way.
An Easement or servitude is “an encumbrance imposed upon an immovable, for the benefit of another immovable belonging to a different person.”
The Civil Code of the Philippines defines an Easement of Right of Way as “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,” while the Right of Way (ROW) refers to the “strip of land over which passage can be done”.
When securing an Easement of Right of Way, hereunder are the items to consider:
Classification. As highlighted by Justice Edgardo Paras in Civil Code of the Philippines Annotated, an easement may be classified according to the party given the benefit (real or personal), the manner exercised (continuous or discontinuous), whether or not its existence is indicated or not (apparent or non-apparent), purpose (positive or negative), right given (partial use or specific), and source or origin (voluntary, legal or mixed).
Entitlement. To be permitted an Easement of ROW, the “dominant estate” should have no direct outlet to a road/public access (landlocked); the isolation problem was not caused by your dominant estate’s own acts, and indemnity payment shall be made by the dominant estate to the “servient estate” or provider of ROW land.
Use. The dominant estate is allowed reasonable use of the ROW. However, the servient estate shall continue to retain ownership of the affected land and can likewise use the easement.
Size and location. The width of the ROW must be adequate for the dominant estate’s use/requirement, e.g. pedestrian and vehicle access. It should be located in such a way that it will cause the least damage to the servient estate. Ideally, the path should be the shortest distance to the road, although this may not always be possible.
Indemnity. Proper indemnity depends if the Easement of ROW is permanent or temporary. If it is permanent, the amount shall be equivalent to the value of the land area used, plus the damages caused on the servient estate. If it is to be used for a limited period only, the amount shall be equivalent to the damages caused on the servient estate.
Other Costs. The money needed to build the ROW, undertake repairs and periodic maintenance, and payment of real estate property tax shall be for the account of the dominant estate if the Easement of ROW granted is permanent. However, the servient estate is required to contribute to these expenses in case he also uses the easement, unless otherwise agreed upon by the parties.
Documentation. To ensure that future generations of property owners honor the Easement of ROW, it is best to have the agreement documented and annotated on both estates’ titles. Such easement however, may be altered or modified upon future agreement/s of the parties, terminated after a fixed period or if no longer required, unless it is conveyed in perpetuity, or acquired by title through prescription or operation of law.
References used include Civil Code of the Philippines Annotated, Volume Two, 2021 Edition, by Edgardo L. Paras and “The Law on Easement of Right of Way” by Rhea Mae Senining-Judilla, (cmslawph.com)
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Henry L. Yap is an architect, environmental planner, former real estate practitioner and senior lecturer, and was recently named one of the Undersecretaries of The Department of Human Settlements and Urban Development (DHSUD).
