In Philippine land law, an Easement of Right of Way is a real right, constituted on another’s property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allow something to be done on his property, for the benefit of another person or tenement. When this right is established, it is typically annotated on the Transfer Certificate of Title (TCT) to bind third parties.
However, these encumbrances are not permanent. The law provides specific grounds and procedures for the cancellation of such annotations.
I. Legal Basis for Right of Way
Under the Civil Code of the Philippines, specifically Articles 649 to 657, a right of way is established when an estate is surrounded by other estates and has no adequate outlet to a public highway. The annotation on the title serves as a public notice of this burden on the "servient estate" for the benefit of the "dominant estate."
II. Grounds for Cancellation
The cancellation of an annotated right of way is not a matter of mere whim; it must be based on specific legal grounds provided under Article 631 and other relevant provisions of the Civil Code:
- Consolidation: When the ownership of the dominant and servient estates is merged into one person.
- Non-Use: While continuous easements can be lost by non-use for ten years, a right of way is "discontinuous." Therefore, extinction usually occurs when the necessity for it ceases.
- Expiration of Term/Condition: If the easement was created by contract for a specific period or subject to a condition that has been fulfilled or has lapsed.
- Cessation of Necessity (Article 655): This is the most common ground. If the isolated estate (dominant) gains access to a public road through other means, the owner of the servient estate may demand the extinction of the easement.
- Renunciation: The owner of the dominant estate expressly waives the right in writing (usually through a public instrument).
- Agreement: Both parties mutually agree to terminate the easement.
III. The Process of Cancellation
The procedure for removing the annotation depends on whether the parties are in agreement.
A. Voluntary Cancellation (Administrative)
If both the owners of the dominant and servient estates agree to the cancellation, the process is relatively straightforward:
- Execution of a Deed of Cancellation: A notarized document where the owner of the dominant estate waives or cancels the right of way.
- Payment of Fees: Payment of registration fees and documentary stamp taxes at the Bureau of Internal Revenue (BIR) if applicable.
- Registration with the Registry of Deeds (RD): Submission of the Deed of Cancellation to the RD where the land is located. The Registrar will then cancel the entry in the memorandum of encumbrances on the TCT.
B. Judicial Cancellation (Involuntary)
If the owner of the dominant estate refuses to cancel the annotation despite the cessation of necessity (e.g., a new public road was built), the owner of the servient estate must file a Petition for Cancellation of Encumbrance in court.
- Filing of Petition: A formal petition filed in the Regional Trial Court (RTC) where the property is situated.
- Proof of Grounds: The petitioner must prove that the necessity no longer exists or that other legal grounds for extinction are present.
- Indemnity Return: Under Article 655, if the easement is extinguished because the necessity ceased, the servient owner must return the indemnity received when the easement was first established.
- Court Order: If the court finds merit, it will issue an order directing the Registry of Deeds to cancel the annotation.
IV. Distinguishing "Legal" vs. "Voluntary" Easements
The requirements for cancellation vary significantly depending on how the easement was created:
| Feature | Legal Right of Way | Voluntary Right of Way |
|---|---|---|
| Source | Created by Law (Necessity) | Created by Contract/Agreement |
| Primary Ground for Cancellation | Cessation of necessity (access to public road) | Mutual agreement or expiration of contract |
| Indemnity | Required to be returned upon cancellation | Depends on the terms of the contract |
V. Jurisprudential Notes
The Supreme Court has consistently held that a right of way is a discontinuous easement because it is used at intervals and depends upon the acts of man. Therefore, it cannot be acquired by prescription (passage of time). Conversely, it is generally held that mere non-use of a legal right of way does not automatically extinguish it unless the "necessity" element is also removed.
In cases of Cessation of Necessity, the law is clear: the right to extinguish the easement belongs to the owner of the servient estate. However, the extinction is not automatic; it requires either a new agreement or a judicial decree to formally clear the title's memorandum of encumbrances.
VI. Key Considerations for Landowners
- Due Diligence: Always check the "Memorandum of Encumbrances" at the back of the TCT. An annotated right of way remains valid and enforceable against the whole world until it is formally cancelled.
- Indemnity: If you are the servient owner seeking cancellation due to a new public road, prepare to return the value of the land or the indemnity originally paid by the dominant owner.
- The "Adequacy" Test: For a legal right of way to be cancelled due to a new road, the new access must be "adequate" and "stable." If the new road is impassable or seasonal, the court may deny the cancellation.