Category Archives: fundamentals of property ownership

Easement

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What is easement or servitude?

An easement is a real right constituted on another’s property which must be corporeal and immovable and the owner of such will be abstained from doing or allowing another person to do something on his property for another thing or person’s benefit. The right may be to use the land’s surface or the air space above it. It is also called a non-possessory interest in real property because they give the easement holder the right to use the property but not to possess it.

The law define easement as:


Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. x xx

Who are the parties in an easement? 

The law laid down the two parties in an easement:


Art. 613.Xxx The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530)

 

*The dominant estate is which an immovable or real property in favor of which the easement is established; and

The servient estate is which the estate subject to the easement.

What are the modes of acquiring easements?


Art. 615. Easements may be continuous or discontinuous, apparent or non-apparent. Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man.

 

*Continuous and apparent easement are required either by virtue of a title or by prescription after ten (10) years


Discontinuous easements are those which are used at intervals and depend upon the acts of man.
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.
Non-apparent easements are those which show no external indication of their existence. (532) 

 *Continuous non-apparent easement and discontinuous easements whether apparent or non-apparent can only be acquired by virtue of a title.

  1. Appurtenant easement- allows the owner of a parcel of land to use the land next to it.
  2. Easement by necessity- owners of land have the right to enter and leave their property, to prevent them from land locking and make their property useless.
  3. Easement by prescription- the claimant uses another’s land for a period of time as defined by state of law and usually requires that the use is uninterrupted, continuous, adverse without the owner’s consent, visible, open and notorious.

References:

De Leon, H., & De Leon, J. H. (2011). Comments and Cases on Property. Quezon City: Rex Printing Company, Inc.

Jurado, D. (1999). Civil Law Reviewer. Quezon City: Rex Printing Company, Inc.

The New Civil Code of the Philippines

Prescription

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What is prescription?

 Prescription is the loss or acquisition of a right through lapse of time. The law defined it by the following article as:


Art. 1106. By prescription, one acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. In the same way, rights and conditions are lost by prescription. (1930a)

 What are the types of prescription?

1. Acquisitive prescription is when one acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. It is also known as adverse possession. It must be enough that the possession should be in the concept of an owner, public, peaceful, uninterrupted and adverse. Adverse possession has two kinds namely:

  • Ordinary Acquisitive Prescription which requires possession of things in good faith and with just title for the time fixed by law which is 10 years.
  • Extraordinary Acquisitive Prescription which is the acquisition of ownership and other real rights without the need of title or of good faith or any other condition and would prescribe in 30 years.

The aforementioned discussion is supported by these provisions:


Art. 1117. Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time fixed by law. (1940a)
Art. 1118. Possession has to be in the concept of an owner, public, peaceful and uninterrupted. (1941)

  2. Extinctive prescription is when rights and actions are lost through the lapse of time in the manner and under the conditions laid down by law. It is also known as liberatory prescription. A person’s uninterrupted adverse possession of patrimonial property for at least 30 years, regardless of good faith or just title, ripens into ownership pursuant to Art. 1137 of the Civil Code. The period begins upon the declaration of the government that the subject land is no longer intended for public service. Without such express declaration, the property, even if classified as alienable or disposable, remains property of public dominion, pursuant to Art. 420[2] of the Civil Code.

What is the difference between prescription and laches?

  1. Prescription – one acquires ownership and other real rights through the lapse of time in the manner and under the action laid down by law; it is at least 30-year uninterrupted use of alienable property of the government reckon from the predecessor-in-interest. It is sometimes called adverse possession. Prescription is concerned with the fact of delay.It is a matter of time, statutory, applies at law and is based on a fixed time
  1. Laches – the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. Delay in asserting the complainant’s rights. Laches is concerned with the effect of delay. Laches is principally a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the property of the relation of the parties, apply in equity are not based on fixed time.

REFERENCES:

Tolentino, A. (2002). Commentaries and Jurisprudences on the Civil Code of the Philippines. Quezon City: Central Lawbook Publishing Co., Inc.

Jurado, D. (1999). Civil Law Reviewer. Quezon City: Rex Printing Company, Inc.

Paras, E. (2000). Civil Code of the Philippines, Annotated. Quezon City: Rex Printing Company, Inc.

The New Civil Code of the Philippines