1) “Right-of-way” is used for different things—identify which one you have

In Philippine practice, people say “right-of-way” to mean any of the following. The answer to “Can I build over it?” changes dramatically depending on which it is:

A private easement of right of way (easement of passage) under the Civil Code (generally Arts. 649–657, within the Civil Code provisions on easements starting Art. 613).
- This is a real right attached to land (dominant estate) that burdens another land (servient estate).
A public road right-of-way (public ROW)—land reserved/used for streets, sidewalks, alleys, national/provincial/city/barangay roads.
- This is typically property of public dominion (or otherwise for public use). Encroachments are treated as obstructions/nuisances subject to removal.
A statutory “easement” strip imposed by special laws (commonly: Water Code easements along rivers/shorelines; drainage/utility corridors; transmission line clearances; subdivision open spaces/road lots under housing rules).
- These are often no-build or highly restricted zones.
A setback/building line requirement under the National Building Code and local zoning ordinances (often mislabeled “easement” by laypeople).
- This is a regulatory restriction, not necessarily a neighbor’s property right.

Before any build/no-build conclusion, the critical step is to determine: (a) who owns the strip, (b) what instrument/law created the restriction, (c) the exact metes and bounds and width, and (d) what use must be kept open (passage, drainage, public access, safety clearance, etc.).

2) Core Civil Code principles that govern building near or on an easement

A. Ownership stays with the servient owner, but it is burdened

An easement is an encumbrance on an immovable for the benefit of another immovable belonging to a different owner (Civil Code, Art. 613 concept). The servient owner keeps ownership and may use the property so long as the use does not impair the easement.

B. “Do not impair” and “do not make it more burdensome”

Two baseline limits run through the Civil Code rules on easements:

The servient estate owner cannot do anything that diminishes the use of the easement or makes it more inconvenient.
The dominant estate owner (the beneficiary) may make works necessary for use and preservation of the easement at their expense, but must do so in a way that is least burdensome to the servient estate and cannot enlarge the easement beyond its proper scope.

C. Easements are generally inseparable from the land

A true easement “runs with the land.” It is generally enforceable against successors, especially when properly documented/registered and/or when the buyer has notice.

D. Easements can be voluntary or legal/compulsory

Voluntary easement: created by contract (e.g., Deed of Easement), donation, will, or agreement. Its terms can define width, permitted structures, gates, hours, maintenance, etc.
Legal easement: created by law when requisites exist (e.g., the legal easement of right of way for an enclosed property). Courts can fix location/width/indemnity if disputed.

3) The Civil Code easement of right of way (passage): what it is—and what it is not

A. Requisites (typical)

Under the Civil Code provisions on right of way (commonly discussed around Arts. 649–657), a legal easement of passage is generally available when:

The dominant property is enclosed and lacks an adequate outlet to a public highway;
The easement is demanded at a point that is least prejudicial to the servient estate and, as a rule, where the distance to the public road is shortest (balancing distance and least damage);
The dominant owner pays proper indemnity (the measure depends on circumstances—often the value of land occupied and/or damages), subject to special situations (such as enclosure caused by the claimant’s own acts, or enclosure resulting from partition/sale arrangements, which can affect how the obligation and indemnity are treated).

Two clarifications that matter for “building over” questions:

A right of way is for passage—not for building occupancy by the dominant owner.
A right of way is typically a discontinuous easement (it is used at intervals, not continuously), which has consequences for acquisition and extinction.

B. Acquisition by prescription: usually not for right of way

Civil Code rules distinguish continuous/discontinuous and apparent/non-apparent easements. A classic rule: discontinuous easements (like right of way) generally cannot be acquired by prescription; they require title (a juridical act or a court decree establishing it) rather than mere long use—though long use can be evidence of an agreement, tolerance, or factual context.

C. Width and location are tied to necessity

The width should be what is sufficient for the needs of the dominant estate (e.g., pedestrian-only vs vehicle access), and the route is chosen to minimize harm while ensuring usefulness. This becomes central when someone tries to “build over” and leave a smaller clearance—because shrinking usable width is commonly treated as impairment.

D. Extinction and change of location (relocation)

Easements can be extinguished by causes such as merger (same person owns both estates), renunciation, and non-use for the period fixed by the Civil Code (commonly discussed as 10 years, with the start point depending on whether the easement is continuous/discontinuous).

The Civil Code also allows a concept often called change of location: where the easement’s original location becomes very inconvenient to the servient estate or prevents useful improvements, the servient owner may be allowed to offer another place or manner that is equally convenient to the dominant estate, usually at the servient owner’s expense. This is the lawful pathway to “I want to build here, so let’s move the passage there,” rather than building into the easement and hoping it slides.

4) So—can you build over a private right-of-way easement?

Short rule

You generally cannot erect a structure that obstructs or materially impairs the easement of passage. A “build over” proposal is only potentially defensible if it does not reduce the easement’s functional utility, safety, and convenience as defined by law and/or the easement document.

The more accurate answer: it depends on the easement’s scope and whether “over” still impairs “passage”

There are several “build over” patterns, each treated differently:

A. Building on the easement strip (walls, rooms, slabs, fences, permanent extensions)

This is the most common “encroachment” scenario. For a passage easement, these are usually impermissible because they occupy space needed for passage or create hazards and inconvenience. Even if a person can still squeeze through, substantial impairment can exist if:

the usable width is reduced below what was fixed/necessary,
the surface becomes unsafe,
turning radius for vehicles is affected,
emergency access is compromised,
visibility and security issues arise,
the easement was intended for vehicular access and is reduced to pedestrian.

B. Installing gates, grills, chains, or barriers across the passage

This is heavily fact-specific:

If the easement document expressly allows a gate and provides the dominant owner unrestricted access (keys, codes, etc.), courts sometimes treat it as not necessarily an impairment—especially for security—but only if it does not delay or restrict access in practice.
If the gate is used to control, deny, or condition access, it is commonly treated as obstruction.

For a legal easement (compulsory right of way), the dominant estate’s right is to unhampered access necessary to avoid enclosure; adding a barrier often invites injunctive relief unless clearly justified and non-impairing.

C. Building above the passage (e.g., a second-floor bridge/overhang spanning across)

This is what most people mean by “build over.” In theory, an overhead structure could be lawful if all of the following are true:

The easement’s terms/law do not prohibit it, and the dominant owner’s right of passage is not reduced in practice;
Adequate vertical clearance and safety are maintained for the highest permitted/necessary use (pedestrian vs vehicle; deliveries; emergency access);
The structure does not create a danger, nuisance, drainage problem, falling-debris risk, or require supports/columns that intrude into the passage;
It complies with building permits, setbacks, fire safety requirements, and local ordinances;
Ideally, it is supported by a written agreement (for voluntary easements) and properly annotated/registered to avoid future disputes with successors.

In practice, overhead “build overs” are risky because many easements and local rules assume the passage is an open corridor; even if the ground is clear, overhead works may still be seen as diminishing convenience or as an encroachment, especially if the easement serves vehicles.

D. Building below the passage (basements, septic tanks, pipes, vaults)

Subsurface works can still be an encroachment if they:

undermine structural integrity of the passage,
restrict future repairs/paving/drainage,
create sinkholes/settlement,
block utility improvements needed to keep the easement usable.

Dominant owners often have implied rights to do what is reasonably necessary to maintain usability; a servient owner’s subterranean build that complicates repairs may be deemed impairment.

A key practical point: a building permit does not legalize a private encroachment

Even if a structure somehow gets a permit, that does not automatically defeat the dominant owner’s civil right to keep the easement unobstructed. Administrative permission is not a blanket defense against private property rights.

5) Building over a public road right-of-way is treated very differently (usually: not allowed)

If the “right-of-way” is actually a public road or sidewalk ROW, the baseline rule is far stricter:

Private occupation of a road ROW is generally prohibited.
Encroachments are commonly treated as public nuisance/obstruction subject to abatement or removal by authorities (subject to due process requirements under law and local procedure).
DPWH (for national roads) and LGUs (for local roads), along with building officials, typically have authority to clear obstructions and deny/remove unlawful structures.

Common examples of public ROW encroachments:

fences or walls beyond property lines into sidewalks,
steps/ramps permanently occupying the sidewalk,
sari-sari store extensions, canopies with posts on sidewalks,
driveway slabs extending into carriageways,
balconies and eaves that project into the public way (even if “overhead”).

Even “building over” that leaves ground clearance can still be prohibited because the airspace above a public way can be part of the regulated corridor for utilities, lighting, signage, future widening, and public safety.

6) Statutory easements and “no-build” corridors often called “right-of-way”

A. Water Code easements (rivers, streams, lakes, and shorelines)

Under the Water Code framework, there is an easement along the banks of rivers and streams and along the shores of seas and lakes for public use (navigation, salvage, and related purposes). Commonly cited baseline widths in Philippine practice are:

3 meters in urban areas,
20 meters in agricultural areas,
40 meters in forest areas, measured from the edge of the bank; and a commonly referenced 20-meter easement along shorelines (measured from the highest tide line) for public use.

These strips are frequently treated as restricted zones where building is prohibited or severely regulated, and where structures may be ordered removed, especially if they impede access or affect waterways.

B. Drainage easements / esteros / waterways

If a strip is designated for drainage (including along esteros, canals, and floodways), building there can violate:

easement rules,
local ordinances,
environmental and flood-control regulations, and is commonly a demolition/removal target because of public safety and flooding implications.

C. Utility and transmission line corridors

Electric transmission lines, pipelines, and similar infrastructure often carry easement restrictions that may prohibit building within specified clearances for safety and maintenance access. These restrictions can arise from:

contracts/easement deeds,
expropriation judgments,
regulatory safety standards and local permitting requirements.

Even if the land is privately owned, building under high-voltage lines is often restricted or disallowed because it blocks access and increases hazard.

D. Subdivision roads and “road lots”

In subdivisions, roads are commonly part of the subdivision plan approvals and are intended for communal/public use. Even if titled to a developer/HOA at a given time, residents’ and/or the public’s use rights and approvals conditions typically make private building on road lots impermissible.

7) What counts as an “encroachment” in Philippine property disputes

“Encroachment” is usually proven by survey evidence and by comparing the structure’s footprint against:

title boundaries,
approved subdivision plans,
road ROW plans,
easement deeds and annotations,
zoning/building lines,
physical monuments and geodetic survey data.

Encroachments include more than walls:

eaves/awnings supported by posts in the easement,
balconies extending into a passage,
stairs/ramps occupying the strip,
planter boxes, retaining walls, raised slabs,
columns supporting an overhead “build over,”
septic tanks or underground structures that compromise the easement.

A recurring litigation reality: parties often fight about whether the “right-of-way” is (1) a true Civil Code easement, (2) a co-owned access road, (3) a permissive path by tolerance, or (4) a public/local road corridor. The classification drives both remedies and defenses.

8) Remedies when someone builds on or obstructs a right-of-way easement

A. For private easements (Civil Code)

Common civil remedies include:

Demand to remove the obstruction and restore the easement to its proper width and usability.
Injunction (temporary restraining order / preliminary injunction / permanent injunction) to stop construction or compel removal.
Action to establish or enforce the easement (including fixing width, location, and indemnity if disputed).
Damages if obstruction caused loss (e.g., inability to access, business losses, additional costs).
Contempt exposure if there is a court order and the obstruction continues.

Procedure often begins with:

written demand,
barangay conciliation (Katarungang Pambarangay) for many neighbor-property disputes before filing in court, unless an exception applies.

B. For public ROW / statutory easements

Enforcement often involves:

notices of violation,
stop-work orders,
denial of occupancy permits,
administrative removal/demolition proceedings,
clearing operations for obstructions.

Because these can involve police power and due process, the exact procedure varies by agency and locality, but the overall tendency is strict: public corridors are not private buildable space.

9) Defenses and complications that frequently decide cases

A. “We agreed” / consent / waiver

A written, notarized agreement matters; informal permission is fragile. Even with consent, consider:

If the easement is voluntary, parties can modify terms (within law and public policy), but successors and third parties become issues unless properly registered/annotated.
If the easement serves a public purpose (public ROW; Water Code easement), private consent generally does not legalize an encroachment.

B. “We’ve used it for decades” (prescription / tolerance)

Long use may help prove an agreement or factual context, but for right of way (discontinuous easement), acquisition by mere lapse of time is generally disfavored without title. Long use is often characterized as:

tolerated use (revocable),
evidence of an implied grant in some settings,
or relevant to estoppel depending on conduct and reliance.

C. Relocation as the lawful alternative to encroaching

If the servient owner wants to develop, the Civil Code concept of changing the place/manner of the easement—while keeping it equally convenient—often becomes the clean solution. Courts are generally more receptive to relocation proposals than to unilateral obstruction.

D. “Builder in good faith” doctrines (Civil Code on accession)

The Civil Code has rules for builders in good faith who build on another’s land (often discussed around Art. 448 and related provisions). These rules can become relevant when a structure is actually over the neighbor’s titled property. But for a known easement corridor, claiming “good faith” is harder if:

the easement is annotated,
the path is obvious/apparent,
surveys and plans were available,
objections were raised early.

E. Torrens title, annotations, and notice

For registered land, easements are ideally annotated. However:

legal easements and public burdens can exist even without annotation; and
buyers with actual notice (including visible conditions on the ground) are less likely to be treated as innocent purchasers protected from unregistered claims.

F. Permits, zoning, and engineering plans

A frequent misconception: “There’s a building permit, so it’s legal.” Permits address regulatory compliance, not necessarily private servitudes. Conversely, even if neighbors tolerate an obstruction, a structure may still be illegal under zoning/building and subject to administrative action.

10) Practical framework: how to assess a “build over” proposal without guessing

Step 1: Classify the corridor

Private Civil Code passage easement? Public road ROW? Water/shore easement? Utility corridor? Zoning setback?

Step 2: Confirm dimensions by survey, not by stories

Obtain a geodetic survey and compare with title technical descriptions and approved plans.

Step 3: Read the source document/law

If voluntary: read the Deed of Easement—it may prohibit any structure, require a minimum clear width/height, or require consent.
If legal: identify the basis for the right-of-way claim and whether it has been judicially fixed.

Step 4: Test for impairment (the decisive question)

Even if “passable,” ask:

Is the intended use pedestrian-only or vehicular?
Does the structure reduce turning space, visibility, drainage, or emergency access?
Does it introduce barriers (posts, steps, narrowing, low clearance)?
Does it make maintenance and repairs harder? If yes, it is likely an actionable encroachment.

Step 5: Use relocation or a documented modification—not unilateral building

If development is necessary, the legally safer route is:

negotiate a relocation that is equally convenient, or
execute a clear amendment to a voluntary easement and register it, rather than building first and litigating later.

Key takeaways

For a private easement of right of way, building is not automatically banned everywhere on the servient land—but anything that obstructs or materially impairs passage is generally unlawful and removable by injunction/demolition.
“Building over” (overhead) is only potentially defensible if it does not reduce usability, safety, and convenience as defined by the easement and necessity—something that is often hard to prove and easy to dispute.
For public road ROWs and many statutory easements (waterways, shorelines, drainage, utilities), the default is no-build or strictly restricted, with stronger government enforcement tools.
Most disputes are won or lost on classification (what kind of ROW is it?), survey proof, and the impairment test.