1) Why combine a sale and a right-of-way easement?

A Deed of Absolute Sale transfers ownership of real property for a price. A right-of-way easement (often simply “right of way”) is a real right over another property that allows passage (and sometimes related access such as utilities), typically to reach a public road.

In Philippine practice, these often appear together because:

the property being sold is landlocked or has limited access;
the seller is retaining a portion of land that will become landlocked after the sale;
the property is being sold subject to an existing right-of-way benefiting a neighbor; or
the parties want certainty and registrability by putting everything in one notarized instrument.

The drafting goal is to ensure the easement is clearly defined, legally enforceable, and registrable/annotatable on the relevant titles.

2) Core legal concepts (Civil Code framework)

A. Sale of immovable property

A sale is a contract where the seller obligates to transfer ownership and deliver a determinate thing, and the buyer pays a price.
For enforceability and registrability in real estate practice, the deed is typically in writing and notarized (public instrument), and then registered if the property is under the Torrens system.

B. Easement of right of way (servitude)

A right-of-way is an easement: a burden imposed on a servient estate (the land burdened) for the benefit of a dominant estate (the land benefited).

Under the Civil Code rules on legal easements of right of way (commonly invoked when land is surrounded), the right-of-way—when demanded as a matter of law—generally follows these guideposts:

Necessity: the dominant estate has no adequate outlet to a public road.
Least prejudice + shortest path: location is chosen to be least prejudicial to the servient estate and, as a rule, shortest to the public highway.
Proper width: sufficient for the needs of the dominant estate.
Indemnity: the dominant owner pays compensation (typically value of the portion used plus damages).

But parties may also create a voluntary (conventional) easement by contract, which is extremely common: the Civil Code allows owners to establish easements provided they are not contrary to law, morals, public order, or public policy.

Practical takeaway: Even if the easement is voluntary, drafting often borrows the Civil Code’s “least prejudice/adequate width/defined route” logic because it reduces disputes.

3) Typical transaction structures (and drafting implications)

Structure 1: Buyer buys Lot A + Seller grants ROW over Seller’s retained Lot B

Dominant estate: Lot A (sold)
Servient estate: Lot B (retained by seller) Drafting key: Seller must have authority to burden Lot B; easement must be described precisely and made registrable. Registration typically requires the instrument to clearly identify the servient title.

Structure 2: Buyer buys a servient lot already burdened by an ROW benefiting another property

Servient estate: lot being sold
Dominant estate: neighboring land Drafting key: The sale must disclose the existing easement as an encumbrance, clarify whether it is annotated on the title, and allocate responsibilities (e.g., maintenance, non-obstruction) consistent with the existing grant.

Structure 3: Subdivision by sale creates landlocked remainder (seller keeps the dominant estate)

Seller sells frontage portion; retains inner portion. Drafting key: The deed may (a) reserve an ROW in favor of the retained portion, or (b) create reciprocal easements. Survey plans are crucial to prevent boundary and route disputes.

4) Due diligence and pre-drafting checklist (high-impact)

Before finalizing clauses, confirm:

A. Title and ownership

Obtain a certified true copy of the title (TCT/OCT) from the Registry of Deeds.
Check for liens/encumbrances: mortgages, adverse claims, lis pendens, attachments, easements, restrictions, annotations.
Verify the seller’s identity, civil status, and authority.

B. Property status and restrictions

Marital property regime: If property is conjugal/absolute community, spousal consent and signature are usually required.
Heirs/estate issues: If acquired from an estate, confirm settlement and proper transfer.
Corporate seller/buyer: confirm board authority and signatory authority.
Agrarian reform exposure (CARP): agricultural land may require special clearances/compliance and may be subject to restrictions.
Local zoning/use: access roads, setbacks, subdivision restrictions, easements for utilities/drainage, etc.

C. Technical correctness

Compare title technical description vs. actual boundaries; consider relocation survey.
For the ROW: obtain a geodetic plan/sketch showing the ROW corridor with bearings and distances, and identify endpoints (to public road and to dominant estate).

D. Tax and transfer readiness

Confirm latest Real Property Tax status and obtain tax clearance as required by local practice.
Identify who will shoulder Capital Gains Tax/Income Tax, Documentary Stamp Tax, transfer tax, and registration fees (agreement matters, but statutory filing obligations still apply).

5) Essential parts of the Deed of Absolute Sale (Philippine drafting norms)

A. Parties clause

Include:

complete names, citizenship, legal age, addresses;
civil status and spouse details (with spouse as co-signatory when required);
government IDs and TIN (often required for processing);
for juridical entities: SEC registration details, office address, authorized representative, and authority documents.

B. Recitals (“Whereas” clauses)

Useful to establish context:

seller’s ownership by title number;
intention to sell and buy;
need for right-of-way (if by necessity or commercial use);
existence of survey plan for ROW.

C. Description of the property sold

Must match the title:

TCT/OCT number; RD location;
lot number, plan number;
area;
technical description (either in-body or as annex);
improvements (if included);
tax declaration number (often referenced, though tax declarations are not proof of ownership).

D. Consideration and payment terms

total price (in words and figures);
method of payment, schedules, and conditions for release;
acknowledgment of receipt (or escrow/holdback terms);
what happens upon default (rescission/penalties), if you include installment terms.

E. Transfer of ownership and possession

delivery of possession date;
allocation of risk (e.g., casualty before turnover);
undertaking to deliver owner’s duplicate title (or explain where it is—e.g., mortgaged).

F. Seller’s representations/warranties

Common warranties:

lawful owner, good and marketable title;
property free from liens/encumbrances except those disclosed;
taxes up to date or allocation;
no tenants/possessors or disclosure if any;
no boundary disputes or disclosure;
compliance with restrictions (including subdivision/HOA if applicable).

G. Taxes and expenses allocation

The deed typically states who pays:

BIR taxes and filings;
local transfer tax;
registration and annotation fees;
documentary requirements and incidental costs.

H. Undertaking for further acts

A clause requiring parties to execute additional documents needed for:

issuance of the BIR clearance/eCAR;
registration/transfer;
annotation of easement.

I. Notarial and signature blocks

signatures of parties and spouses (if needed);
at least two witnesses (common practice);
acknowledgment (notarial).

6) The right-of-way easement: the clauses that prevent disputes

A right-of-way clause should read like an engineered corridor plus a set of operating rules. Vague easements (“a right of way shall be provided”) are frequent sources of litigation.

A. Grant / creation of easement (operative words)

Make clear whether it is:

granted by servient owner to dominant owner; or
reserved by seller in favor of retained property; or
the sale is subject to an existing easement.

Specify that the easement is a real right and (if intended) perpetual and appurtenant (attached) to the dominant estate.

B. Identify dominant and servient estates

State:

dominant estate (title number, lot, location);
servient estate (title number, lot, location).

This is crucial for registrability and for binding successors.

C. Location and technical description of the ROW

Best practice: include all of the following:

width (e.g., 3.00 meters, 4.00 meters, etc.);
length (or endpoint-to-endpoint description);
route (metes and bounds; bearings/distances);
endpoints: from a public road (name of road) to a specific boundary point of the dominant estate;
plan reference: geodetic plan/sketch labeled “ROW” (annex).

Avoid “along the boundary” descriptions without measurements.

D. Purpose and permitted use

Define whether the passage is:

pedestrian only;
vehicular (and type/weight limits, if any);
for private access only (not for public dedication);
includes utilities (water, power, telecom, drainage) or excludes them.

If utilities are included, specify installation rules and restoration obligations.

E. Exclusivity and control

State whether it is:

non-exclusive (servient owner may also use, provided no obstruction); or
exclusive to dominant owner (rarer, and should be explicit).

Include rules on:

gates/guardhouse (allowed? who controls? keys/access codes?);
hours of access (usually unrestricted unless justified);
prohibition on parking/obstructions.

F. Construction and improvement

If a road will be built:

who will construct (dominant owner, servient owner, shared);
standards (gravel/concrete thickness, drainage);
permits and barangay/LGU compliance where relevant;
responsibility for damage during construction.

G. Maintenance and cost-sharing

Common models:

dominant owner maintains at its cost (often where easement exists primarily for dominant benefit);
shared proportional to use;
HOA-style arrangement if multiple lots benefit.

Spell out:

routine maintenance;
repairs after heavy vehicle use;
drainage clearing;
vegetation control.

H. Indemnity / consideration for the easement

If the easement is voluntary, you may provide:

separate consideration for the easement; or
state it is included in the overall purchase price; or
state it is granted gratuitously.

If the easement resembles a legal right-of-way by necessity, consider reflecting Civil Code principles:

compensation for the affected strip and damages, if any.

I. “Runs with the land” and annotation/registration covenant

Include a strong clause that:

the easement is binding upon heirs, assigns, and successors-in-interest;
parties will cause annotation on the titles (dominant and servient, as applicable);
parties will sign additional papers required by the Registry of Deeds.

J. Relocation clause (optional but useful)

Sometimes the servient owner wants flexibility:

allow relocation of the ROW only if (i) new route provides substantially equivalent access, (ii) is at servient owner’s cost, and (iii) is properly surveyed and re-annotated.

Without this, relocation can become a flashpoint.

K. Remedies and enforcement

Include:

injunction-friendly language (no obstruction; immediate removal of barriers);
recovery of damages and attorney’s fees (subject to court discretion and enforceability rules);
dispute venue (courts where property is located are commonly chosen).

L. Extinguishment and non-waiver (carefully)

Civil Code rules on extinguishment (merger, renunciation, non-use, etc.) apply by law. A clause can help manage disputes over intent (e.g., temporary non-use is not waiver), but it cannot fully override statutory extinguishment. Drafting should focus on clear rights, documentation, and consistent use/maintenance rather than relying on “never extinguishes” language.

7) Practical sample clause framework (illustrative, not one-size-fits-all)

A robust ROW section often contains subheadings like:

Grant of Easement
Dominant and Servient Estates
Location, Width, and Technical Description (with Annex “ROW Plan”)
Purpose and Permitted Use
Non-Obstruction and Access Rules
Construction/Improvement (if any)
Maintenance and Repairs
Utilities (Optional)
Consideration/Indemnity
Annotation and Registration
Transferability; Binding Effect
Relocation (Optional)
Default; Remedies; Attorney’s Fees

This structure helps the Registry of Deeds reviewers and future owners quickly understand and honor the easement.

8) Notarization and form requirements (what makes it registrable)

A. Written instrument and public document practice

For real estate transactions in the Philippines, a deed that will be used for registration is typically:

written and signed;
notarized under the rules on notarial practice (personal appearance, competent IDs, notarial acknowledgment).

A notarized deed becomes a public document, which is important for registration and evidentiary weight.

B. Special authority documents

When someone signs for another:

Special Power of Attorney (SPA) should be specific to selling and/or granting an easement, and often itself notarized/consularized as required by circumstance.
For corporations: board resolution/secretary’s certificate and proof of authority.

9) Registration and annotation workflow (Torrens property)

While exact steps vary by Registry of Deeds and LGU practice, the common sequence is:

Notarize the deed.
Secure BIR requirements for transfer (commonly including tax returns/payment and an authorization for registration).
Pay local transfer tax and obtain local clearances as required.
Register the deed at the Registry of Deeds for issuance of a new title in the buyer’s name.
Cause the annotation of the right-of-way easement on the relevant titles (servient and, when appropriate, dominant) consistent with how the easement is created.

Drafting-critical point: Annotation is smoother when the deed clearly identifies:

both titles (dominant and servient);
the precise ROW technical description; and
the parties who own and consent to burden the servient estate.

If the servient estate is owned by a third party not signing the deed, you generally cannot validly create/record a burden on that third party’s title without their participation/consent (or a court order establishing a legal easement).

10) Common drafting pitfalls (and how to avoid them)

Undefined ROW route → Provide metes and bounds + plan annex.
Width not stated → Specify exact width; avoid “sufficient width.”
No mention of dominant/servient titles → Identify both, with TCT/OCT numbers.
Easement granted by someone without authority → Confirm ownership of servient estate and spousal/corporate authority.
No rules on obstruction/maintenance → Add operating rules and cost allocation.
Sale warranties ignore easements → Disclose easements as encumbrances; state whether they’re being created, reserved, or taken subject to.
Easement conflicts with subdivision restrictions or LGU requirements → Verify restrictions and approvals where applicable.
Tax/fee ambiguity → Allocate responsibilities clearly to prevent post-signing disputes.
Easement intended for multiple lots but drafted as personal → Make it appurtenant to the dominant estate and binding on successors; avoid wording that makes it merely personal to a named individual unless that is truly intended.
Assuming “absolute sale” cures defects → A deed cannot cure void title issues; due diligence remains essential.

11) Special situations worth addressing in the deed

A. Multiple dominant owners (shared access)

If several lots will use the same ROW:

define beneficiaries (by lot numbers or titles);
define cost-sharing and governance (especially where an HOA does not exist).

B. Vehicles, commercial use, and heavy loads

If the dominant estate will be commercial:

specify load limits, road standards, and repair obligations;
define delivery truck rules to avoid later “overuse” disputes.

C. Drainage and utilities

Right-of-way corridors often become de facto utility corridors:

clarify whether utilities are allowed;
require restoration and indemnity for damage.

D. Security and privacy

If the servient owner has privacy concerns:

allow gates with guaranteed access rights (keys/codes);
prohibit loitering/parking.

E. Boundary overlaps / encroachments

If the path overlaps uncertain boundaries:

require a relocation survey and agreement on monuments before registration.

12) Minimum clause set (quick reference)

For a combined Deed of Absolute Sale with Right-of-Way Easement, the minimum high-sufficiency set is:

Sale provisions: parties; property description; price/payment; transfer/possession; warranties; taxes/expenses; further assurances; signatures/notarial.
Easement provisions: grant/reservation/subject-to; dominant & servient identification; precise technical description + width; permitted use; non-obstruction; construction/maintenance; consideration/indemnity; binding effect; annotation covenant; relocation (if desired); remedies/venue.

13) Cautionary note

Philippine property transfers and easements are heavily documentation-driven: clarity in technical description, authority to bind the servient estate, and registrability/annotation planning are what distinguish a “signed” deed from a deed that actually produces stable, bankable, future-proof rights.