In the Philippines, a Right of Way (ROW) is an easement—a real right, constituted on another’s corporeal immovable property, by virtue of which the owner of the latter has to abstain from doing or to allow somebody else to do something on his property for the benefit of another thing or person.
When the ownership of the land comprising this right of way needs to be transferred, the process is governed by the New Civil Code of the Philippines, specifically Articles 649 to 657, and relevant administrative regulations if the government is involved.
1. Nature of the Right of Way
Before transferring ownership, one must distinguish between the Easement itself and the Ownership of the Land where the easement is located.
- Legal Easement: A compulsory right granted by law to an enclosed estate (dominant estate) to pass through a neighboring estate (servient estate) after payment of proper indemnity.
- Voluntary Easement: Created by the will of the owners through a contract.
- Ownership Transfer: This usually refers to the sale or donation of the specific strip of land used for the ROW, or the assignment of the rights attached to it.
2. Modes of Transferring Ownership
Transferring the ownership of the land occupied by a ROW generally follows the standard procedure for any real property conveyance, but with specific considerations for its intended use.
A. Sale or Deed of Absolute Sale
The most common method where the owner of the servient estate sells the portion of the land used as a ROW to the owner of the dominant estate or a third party (like a homeowners' association).
B. Deed of Donation
Common in residential subdivisions where the developer transfers the ownership of the open spaces and road lots (ROWs) to the local government unit (LGU) or the Homeowners’ Association (HOA) pursuant to Presidential Decree No. 1216.
C. Expropriation (Government Acquisition)
Under Republic Act No. 10752 (The Right-of-Way Act), the government may acquire private property for national infrastructure projects through negotiated sale or expropriation proceedings.
3. The Step-by-Step Legal Process
Step 1: Survey and Segregation
Since a ROW is often only a portion of a larger parcel of land, a Geodetic Engineer must conduct a survey to create a Subdivision Plan. This plan must be approved by the Land Management Services (LMS) of the DENR or the Land Registration Authority (LRA).
Step 2: Execution of the Deed
The parties must execute a formal legal instrument.
- Deed of Absolute Sale: If the transfer is for a price.
- Deed of Donation: If the transfer is gratuitous.
- The document must be notarized to be considered a public instrument.
Step 3: Payment of Taxes and Clearances
Before the transfer can be registered, the following taxes must be paid to the Bureau of Internal Revenue (BIR):
- Capital Gains Tax (CGT): Usually 6% of the selling price or zonal value, whichever is higher.
- Documentary Stamp Tax (DST): 1.5% of the value.
- Certificate Authorizing Registration (CAR): Issued by the BIR once taxes are cleared.
Step 4: Local Government Clearances
- Transfer Tax: Paid to the City or Municipal Treasurer’s Office.
- Tax Clearance: Obtained from the Assessor’s Office to ensure all real property taxes are paid.
Step 5: Registration with the Registry of Deeds
The final step is the submission of the notarized Deed, the CAR, the Tax Clearance, and the old Transfer Certificate of Title (TCT) to the Registry of Deeds.
4. Key Requirements for a Compulsory Right of Way
If the transfer is being sought through a court action because the neighbor refuses to grant a ROW, the claimant must prove:
- The dominant estate is surrounded by other estates and has no adequate outlet to a public highway.
- Payment of proper indemnity.
- The isolation was not due to the proprietor's own acts.
- The right of way claimed is at the point least prejudicial to the servient estate and where the distance to the public highway is the shortest.
5. Important Legal Doctrines
The "Least Prejudicial" Rule
The law prioritizes the location that causes the minimum damage to the servient estate. If there is a conflict between the "shortest distance" and "least damage," the "least damage" criterion generally prevails.
Indemnity
The ownership transfer or the establishment of a permanent easement requires payment. If the ROW is permanent and consists of the passage of materials/infrastructure, indemnity consists of the value of the land plus the amount of damage caused to the servient estate.
Extinguishment
If the ROW is no longer necessary (e.g., the dominant estate gains access to a new public road), the owner of the servient estate may demand the return of the strip of land, provided they return the indemnity received.
6. Summary of Required Documents
| Document | Purpose |
|---|---|
| Approved Subdivision Plan | Identifies the specific area of the ROW |
| Notarized Deed of Sale/Donation | Legal basis for the transfer |
| Certificate Authorizing Registration (CAR) | Proof of BIR tax payment |
| Tax Clearance | Proof of updated real property tax |
| Transfer Certificate of Title (TCT) | The original owner's copy for cancellation |