In Philippine property law, the concept of ownership is not absolute. One of the most common limitations on ownership is the Easement of Right of Way. This legal encumbrance often creates friction between the owner of the land (the servient estate) and the person entitled to the passage (the dominant estate), especially when the landowner intends to build structures.
Understanding the legal landscape requires a deep dive into the Civil Code of the Philippines and relevant jurisprudence.
1. The Nature of the Easement
A Right of Way 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 (the "landlocked" property).
- Servient Estate: The land that must provide the passage.
Legal vs. Voluntary Easements
- Legal Easement: Established by law when an estate is surrounded by other estates and has no adequate outlet to a public highway.
- Voluntary Easement: Established by the will of the owners through a contract.
2. The General Rule on Building
The core principle governing the servient owner’s right to build 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 while you still own the land where the right of way is located, your right to build is severely restricted. You cannot construct anything—be it a wall, a gate, a shed, or a house extension—that makes the exercise of the right of way more difficult, dangerous, or impossible for the dominant estate.
3. Requirements for a Legal Right of Way
To understand where you can build, you must know where the right of way must be. Under Articles 649 and 650, the easement must be established at the point:
- Least prejudicial to the servient estate.
- Where the distance to the public highway is the shortest.
If a structure is built on a path that was previously used but not legally established, the dominant owner may demand the removal of the structure if that path is the only viable exit.
4. The Right to Alter the Easement
Can the servient owner move the path to make room for a building? Yes, under specific conditions.
Article 629 provides an "escape clause" for the landowner. If the current location of the easement has become very inconvenient to the servient owner (e.g., it prevents them from making important repairs or improvements, like building a home), they may offer an alternative path, provided:
- The alternative is equally as convenient as the old one.
- The change does not cause injury to the dominant owner.
- The servient owner bears the costs of the relocation.
5. Specific Prohibitions and Nuances
Gates and Fences
Can you put a gate across a right of way? Generally, yes, but you cannot lock it in a way that prevents the dominant owner from passing. Jurisprudence suggests that if a gate is installed, the servient owner must provide the dominant owner with a key or a way to open it freely.
Width of the Path
The width of the easement is not fixed; it must be sufficient for the needs of the dominant estate. If the dominant owner requires vehicle access for a residential home, building a structure that narrows the path to a mere walkway (e.g., 1 meter) is a violation of the easement.
The Role of Indemnity
A legal easement is not free. The dominant estate must pay indemnity (the value of the land plus damages). If the indemnity has been paid, the right to use the space is vested. If a servient owner builds over a paid-for easement, they can be compelled by a court to demolish the structure at their own expense.
6. Judicial Remedies
When a landowner builds on a right of way, the dominant owner has several recourses:
- Injunction: A court order to stop the construction.
- Abatement of Nuisance: If the structure obstructs the right of way, it may be considered a private nuisance.
- Action for Damages: To compensate for the loss of use or inconvenience caused by the obstruction.
The "Good Faith" Defense
In many Philippine cases, the "Builder in Good Faith" (Article 448) argument is raised. However, this rarely applies to easements. Since easements are usually annotated on the Transfer Certificate of Title (TCT), the landowner is presumed to have notice of the encumbrance. Building over a known easement is generally considered an act in bad faith.
Summary Table: Rights and Obligations
| Feature | Servient Owner (Landowner) | Dominant Owner (User) |
|---|---|---|
| Ownership | Retains title to the land. | Does not own the land; only the right to use. |
| Building | May build if it doesn't impair the use. | Cannot build on the servient land. |
| Maintenance | Must allow the dominant owner to make repairs. | Must pay for the upkeep of the path. |
| Relocation | Can relocate if it becomes too "inconvenient." | Must accept a convenient alternative. |
Conclusion
Building on land subject to a Right of Way is a high-risk endeavor in the Philippines. The law heavily protects the "necessity" of the dominant estate's access over the "convenience" of the servient owner's construction. Before breaking ground, a landowner must ensure that the proposed structure does not narrow, obstruct, or complicate the path of the easement holder, or risk a court-ordered demolition.