Bar Q and A #21

1.) Sofronio was a married father of two when he had a brief fling with Sabrina, resulting in her pregnancy and the birth of their son Sinforoso. Though his wife knew nothing of the affair, Sofronio regretted it but secretly provided child support for Sinforoso. Unfortunately, when Sinforoso was 10 years old, Sofronio died. Only Sofronio's father, Salumbides, knew of Sabrina and Sinforoso. For the purpose of providing support to Sinforoso, Salumbides gave Sabrina usufructuary rights over one of his properties - a house and lot - to last until Sinforoso reaches the age of majority. Sabrina was given possession of the property on the basis of caucion juratoria. Two (2) years after the creation of the usufruct, the house accidentally burned down, and three (3) years thereafter, Sinforoso died before he could reach the age of 18. Will the usufruct continue after the house has burned down? If yes, will it continue after Sinforoso's death?

Yes, the usufruct will continue after the house was burned. If the usufruct is constituted on immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials. (Article 607, Civil Code) The usufruct over the land and the materials continues. The thing was lost only in part, the right continues on the remaining parts. (Article 604, Civil Code)

2.) An easement that can be acquired by prescription: A. Right of way B. Watering of an animal C. Lateral and subjacent support D. Light and view

D – only continuous and apparent easements maybe acquired by prescription.

3.) In 2005, Andres built a residential house on a lot whose only access to the national highway was a pathway crossing Brando's property. Andres and others have been using this pathway (pathway A) since 1980. In 2006, Brando fenced off his property, thereby blocking Andres' access to the national highway. Andres demanded that part of the fence be removed to maintain his old access route to the highway (pathway A), but Brando refused, claiming that there was another available pathway (pathway B) for ingress and egress to the highway. Andres countered that pathway B has defects, is circuitous, and is extremely inconvenient to use. To settle their dispute, Andres and Brando hired Damian, a geodetic and civil engineer, to survey and examine the two pathways and the surrounding areas, and to determine the shortest and the least prejudicial way through the servient estates. After the survey, the engineer concluded that pathway B is the longer route and will need improvements and repairs, but will not significantly affect the use of Brando's property. On the other hand, pathway A that had long been in place, is the shorter route but would significantly affect the use of Brando's property. In light of the engineer's findings and the circumstances of the case, resolve the parties' right of way dispute.

I will rule in favor of Brando. The easement of right of way should be established at a point least prejudicial to the servient estate where the distance from the dominant estate to the public highway may be the shortest. (Art. 650)

If these two conditions do not concur in one estate, the criterion of least prejudice prevails over shortest distance. (Anastacia Quimen vs. CA and Yolanda Oliveros May 29, 1996)

In this case, to establish the easement on the property of Brando would significantly affect his use of his property whereas while Pathway B may prove to be the longer route, it will cause least prejudice to Brando. Andres’ argument that Pathway B is circuitous and inconvenient to use should not be given weight because the true test of the establishment of an easement is adequacy. Convenience of the dominant estate has never been the gauge for the establishment of the easement. (Costabella Corporation v. CA 193 SCRA 333; Cristobal vs. Ledesma 291 SCRA 122)

4.) Distinguish between: 1. Continuous and discontinuous easements; 2. Apparent and non-apparent easements; and 3. Positive and negative easements

1. Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man, while discontinuous easements are those which are used at intervals and depend upon the acts of man. (Art. 615, Civil Code)

2. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same, while non- apparent easements are those which show no external indication of their existence. (Art. 615, Civil Code)

3. Positive easements are those which impose upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, while negative easements are those which prohibit the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (Art. 615, Civil Code)

5.) Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same from Felisa, the original owner. Thereafter, Emma discovered that Felisa had granted a right of way over the land in favor of the land of Georgina, which had no outlet to a public highway, but the easement was not annotated when the servient estate was registered under the Torrens system. Emma then filed a complaint for cancellation of the right of way, on the ground that it had been extinguished by such failure to annotate. How would you decide the controversy?

The complaint for cancellation of easement of right of way must fail. The failure to annotate the easement upon the title of the servient estate is not among the grounds for extinguishing an easement under Article 631 of the NCC. Under Article 617, easements are inseparable from the estate to which they actively or passively belong. Once it attaches, it can only be extinguished under Article 631, and they exist even if they are not stated or annotated as an encumbrance on the Torrens title of the servient estate. (II Tolentino 326, 1987 ed.)

6.) Franz was the owner of Lot E which was surrounded by four (4) lots one of which – Lot C – he also owned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C. Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C. Ava cultivated Lot E and used the right of way granted by Franz. Ava later found gainful employment abroad. On her return after more than 10 years, the right of way was no longer available to her because Franz had in the meantime sold Lot C to Julia who had it fenced. A. Does Ava have a right to demand from Julia the activation of her right of way? Explain. B. Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, can she do that? Explain.

A. Yes. Ava has the right to demand from Julia the activation of the right of way, for the following reasons:

1. The easement of the right of way is a real right which attaches to, and is inseparable from, the estate to which it belongs.

2. The sale of the property includes the easement or servitude, even if the deed of sale is silent on the matter.

3. The vendee of the property in which a servitude or easement exists cannot close or put obstructions thereon to prevent the dominant estate from using it.

4. Ava’s working abroad for more than ten (10) years should not be construed as non-user, because it cannot be implied from the fact that she or those she left behind to cultivate the lot no longer use the right of way.

5. Renunciation or waiver of an easement must be specific, clear, express and made in a public instrument in accordance of Art. 1358 of the NCC.

B. Yes. Ava has the option to demand a right of way on any of the remaining lots of Franz more so after Franz sold lot C to Julia. The essential elements of a legal right of way under Art. 649 and 650 of the NCC are complied with.

7.) David is the owner of the subdivision in Sta. Rosa, Laguna, without an access to the highway. When he applied for a license to establish the subdivision, David represented that he will purchase a rice field located between his land and the highway, and develop it into an access road. But when the license was already granted, he did not bother to buy the rice field, which remains unutilized until the present. Instead, he chose to connect his subdivision with the neighboring subdivision of Nestor, which has access to the highway. Nestor allowed him to do this, pending negotiations on the compensation to be paid. When they failed to arrive at an agreement, Nestor built a wall across the road connecting with David's subdivision. David filed a complaint in court, for the establishment of an easement of right of way through the subdivision of Nestor which he claims to be the most adequate and practical outlet to the highway. 1) What are the requisites for the establishment of a compulsory easement of a right of way? 2) Is David entitled to a right of way in this case? Why or why not?

1) The requisites for a compulsory easement of right of way are: (a) the dominant estate is surrounded by other immovables and is without an adequate outlet to a public street or highway; (b) proper indemnity must be paid; (c) the isolation must not be due to the acts of the owner of the dominant estate; and (d) the right of way claimed is at a point least prejudicial to the servient estate and, insofar as is consistent with this rule, where the distance to the street or highway is shortest. (Art. 650, NCC)

2) No, David is not entitled to the right of way being claimed. The isolation of his subdivision was due to his own act or omission because he did not develop into an access road the rice field which he was supposed to purchase according to his own representation when he applied for a license to establish the subdivision. (Floro v. Llenado, 244 SCRA713)

8.) Don was the owner of an agricultural land with no access to a public road. He had been passing through the land of Ernie with the latter's acquiescence for over 20 years. Subsequently, Don subdivided his property into 20 residential lots and sold them to different persons. Ernie blocked the pathway and refused to let the buyers pass through his land. a) Did Don acquire an easement of right of way? Explain. b) What are the rights of the lot buyers, if any? Explain.

a) Don did not acquire an easement of right of way. His passage through Ernie’s land was by mere acquiescence or tolerance. He cannot claim to have acquired the easement of right of way by prescription, because this easement is discontinuous although apparent. Only continuous and apparent easements can be acquired by prescription of 10 years of uninterrupted use and enjoyment.

b) Prior to the grant of an easement, the buyers of the dominant estate have no other right than to compel grant of easement of right of way. Since the properties of the buyers are surrounded by other immovable and has no adequate outlet to a public highway and the isolation is not due to their acts, buyers may demand an easement of a right of way provided proper indemnity is paid and the right of way demanded is the shortest and least prejudicial to Ernie.

9.) Tyler owns a lot that is enclosed by the lots of Riley to the North and East, of Dylan to the South, and of Reece to the West. The current route to the public highway is a kilometer’s walk through the northern lot of Riley, but the route is a rough road that gets muddy during the rainy season, and is inconvenient because it is only 2.5 meters wide. Tyler’s nearest access to the public highway would be through the southern lot of Dylan. May Dylan be legally required to afford to Tyler a right of way through his property? Explain your answer.

Dylan may not be legally required to afford Tyler a right of way through his property, because Tyler already has an adequate outlet to the public highway through his Riley’s lot. One of the requisites for a compulsory grant of right of way is that the estate of the claimant of a right of way must be isolated and without adequate outlet to a public highway. The true standard for the grant of compulsory right of way is “adequacy” of outlet going to a public highway and not the convenience of the dominant estate. In the case at bar, there is already an existing adequate outlet from the dominant estate to a public highway. Even if said outlet be inconvenient, the need to open up another legal easement or servitude is entirely unjustified [Article 649, NCC; Dichoso Jr. v. Marcos, G.R. No. 180282 (2011); Costabella Corp. v. CA, G.R. No. 80511 (1991)].

10.) State with reason whether each of the following is a nuisance, and if so, give its classification, whether public or private: a) A squatter’shut b) A swimming pool c) A house ofprostitution d) A noisy or dangerous factory in a private land e) Uncollected garbage

According to Art. 694 of the Civil Code, a nuisance is any act,omission, establishment, business condition of property, or anything else which:
i. Injures or endangers the health or safety of others;or
ii. Annoys or offends the sense; or
iii. Shocks, defies, or disregards decency or morality; or
iv. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
v. Hinders or impairs the use of property.

A nuisance may be whether public or private. Under Art. 685, a public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger of damage upon individuals may be unequal. A private nuisance, on the other hand, is one that violates only private rights and produces damage to but one or a few persons.

a. A squatter’s hut being an illegal construction, constitutes a public nuisance per se, if it poses problems of health and sanitation. (City of Manila v. Garcia, 19 SCRA 41, [1967]) If the squatter’s hut is built on a private land and hinders or impairs the owner’s use of his or her own property, then it would constitute a private nuisance.

b. A swimming pool is not a nuisance and is an exception to the attractive nuisance doctrine. (Hidalgo v. Guillermo, 91 Phil. 488 [1952]) It generally does not cause an injury, harm or prejudice to an individual or the public. (Art. 694, par. 1)

c. A house of prostitution is a public nuisance because it shocks or disregards the decency or morality of the community. (Art. 694 par. 3, Civil Code)

d. A noisy or dangerous factory even if built in a private land may be considered a nuisance if it offends the sense of the owners of the adjacent property or poses a danger to their safety. (Art. 694, par. 1, Civil Code) This kind of nuisance may be classified as a public nuisance if it affects and annoys those who come within its sphere.

e. Uncollected garbage can be injurious to health and even the environment. It is thus, considered a public nuisance.