By Atty. Eduardo T. Reyes III
In a society like ours where population explodes every new year, incidents of isolation of a property without viable access to public roads from private residences become prevalent.
When one’s land is surrounded by other lands or structures or buildings, and in order to get to the nearest highway, the owner must traverse the lands of their neighbors, an easement of right of way is needed.
What is an easement of right of way?
Easement of right of way; defined.
“An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. In turn, a right of way easement is one such encumbrance which is imposed for the benefit of another immovable which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway”.(Spouses Marcial Vargas and Elizabeth Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997. July 27, 2022).
What are the requirements to compel the neighbors to grant an easement of right of way?
Jurisprudentially synthesized requisites.
As laid down in Articles 649 and 650 of the Civil Code and synthesized by jurisprudence, the requisites for the establishment of a right of way easement are:
- The immovable benefiting from the right of way (referred to by law as the dominant estate) is surrounded by other immovables and has no adequate outlet to a public highway;
- The owner, user, or holder of the dominant estate must pay proper indemnity to the owner of the immovable on which the easement is being imposed;
- The isolation of the dominant estate is not the result of its owner, user, or holder’s own acts; and,
- The claimed right of way must be at the point least prejudicial to the immovable on which the easement is being imposed (referred to by law as the servient estate); and insofar as consistent with this rule, where the distance of the dominant estate to a public highway may be the shortest.”(Spouses Marcial Vargas and Elizabeth Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997. July 27, 2022).
To continue, it is also important to underline that an easement of right of way is a burden on the neighbor’s property. Thus, if ever it is granted, its route must reckon two (2) important considerations: “ a. least prejudicial to the servient estate; and, b. shortest distance”. (Demetria De Guzman et al., v. FILINVEST Development Corporation, G.R. No. 191710, Jan. 14. 2015).
Now, in case of conflict between the two (2) requisites, because, for instance, the “shortest distance” form point A to point B is not the “least prejudicial” such as when it must cut across a beautiful garden or a swimming pool, then the “least prejudicial” requirement must prevail. (Spouses Larry and Rosarita Williams v. Rainero A. Zerda, G.R. No. 207146, March 15, 2017).
It must be pointed out as well that there must be an absolute necessity for the grant of right of way and the burden of proof lies with the one asking for it. “In a proceeding for the compulsory imposition of a right of way easement, the burden of proving compliance with the foregoing requisites lies with the owner, holder, or user of the dominant estate”.(Spouses Marcial Vargas and Elizabeth Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997. July 27, 2022).
Further, the request must also comply with the “absolute necessity test”. This requires that there must be “ no other adequate outlet” to a highway. So if there is or are other outlets which are adequate, even if inconvenient, like it has minor flooding or a bit grassy and not well-lit, jurisprudence instructs that no right of way can be granted. Mere inconvenience therefore is not enough. It must be absolutely necessary because there is no other access at all.
Lastly, an easement of right of way can be acquired either by an agreement with the neighbor (voluntary easement) or by compulsion through a court case (legal easement). The amicable way which is offered by the principle of voluntary easement is always the first option as it is less costly, ie., both in terms of money to be spent and emotions to be expended and thus healthier to one’s well-being.
However, when there is an absolute necessity for an easement of right of way but the pleas to the neighbor remain unheeded, then it is also important that a property owner knows their rights so that the same may be enforced through a compelling court action.
Thus, the choices we make and the routes we take in this life.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).