In the Philippine jurisdiction, the ownership of land does not always equate to an absolute, unencumbered right to build. One of the most common legal frictions in property law involves the Easement of Right of Way, a situation where a piece of land (the servient estate) is legally burdened to provide passage for another piece of land (the dominant estate) that lacks adequate access to a public highway.
The tension arises when the owner of the servient estate wishes to construct permanent structures on their property that may overlap or interfere with this established path.
1. Nature of the Easement
Under the Civil Code of the Philippines (Articles 649 to 657), an easement is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.
- Dominant Estate: The land that benefits from the right of way.
- Servient Estate: The land that must provide the passage.
The right of way is not a transfer of ownership; the owner of the servient estate retains title to the land but loses certain "sticks" in the bundle of proprietary rights—specifically, the right to exclude the dominant owner from that specific portion of the land.
2. The General Rule: Non-Impairment
The governing principle for the owner of the servient estate is found in Article 629 of the Civil Code:
"The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude."
This means that if a right of way is legally established (whether by contract or by judicial decree), the owner of the land cannot build permanent structures (such as houses, high walls, or concrete garages) that would:
- Obstruct the passage.
- Make the exercise of the easement more difficult or burdensome for the dominant estate.
- Narrow the agreed-upon width of the path.
3. When Can You Move the Right of Way?
While the general rule prohibits building on the path, the law recognizes that the needs of the servient owner may change over time. Under the same Article 629, the owner of the servient estate may change the location of the easement if:
- The original location has become very inconvenient to the servient owner; or
- The original location prevents the servient owner from making important repairs, improvements, or works on their property (such as building a permanent structure).
Conditions for Relocation:
- The owner must offer an equally convenient alternative place or manner for the right of way.
- The relocation must be done at the expense of the servient owner.
- The dominant owner must not suffer any detriment from the change.
4. Legal Consequences of Unauthorized Building
If a landowner builds a permanent structure on an existing right of way without the consent of the dominant owner or a court order, they are acting in bad faith relative to the easement.
| Consequence | Description |
|---|---|
| Injunction | The dominant owner can file for a "Petition for Prohibition" or "Injunction" to stop the construction in progress. |
| Demolition | Courts can order the demolition at the builder's expense of any structure that obstructs a legally established right of way. |
| Damages | The servient owner may be liable for actual and moral damages if the obstruction causes loss (e.g., preventing the dominant owner from transporting goods or materials). |
5. The "Least Prejudicial" Requirement
When initially establishing a right of way, Article 650 dictates that the easement 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.
If a permanent structure already existed before the easement was sought, the court will generally try to route the path around it. However, if the structure was built after the easement was established, the "least prejudicial" argument cannot be used to justify the obstruction.
6. Voluntary vs. Legal Easements
The rules differ slightly depending on how the right of way was created:
- Voluntary Easement: Created by contract/agreement. The parties can stipulate whether structures can be built (e.g., an archway over the path) provided they don't block passage.
- Legal/Compulsory Easement: Created by law because the dominant estate is "isolated." These are strictly interpreted; the path must remain clear to satisfy the legal necessity.
Summary of Jurisprudence
The Philippine Supreme Court has consistently held that the owner of the servient estate cannot unilaterally alter the path of an easement. In cases like Prosperity Credit Resources, Inc. vs. Court of Appeals, the court emphasized that while ownership is retained, the "burden" of the easement must be respected until it is legally extinguished or modified by mutual agreement or judicial intervention.
Key Takeaway Table
| Scenario | Permissibility |
|---|---|
| Building a fence across the path | Prohibited. |
| Building a roof high above the path | Allowed, provided it doesn't limit the height of vehicles/cargo allowed in the easement. |
| Moving the path to build a house | Allowed only if an equally convenient path is provided and paid for by the builder. |
| Building on a "disused" path | Risky; the easement must be formally extinguished first. |