Right-of-way should be least prejudicial to servient estate

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Persida Acosta

Persida Acosta

Dear PAO,
My parents own a 600-square-meter lot that is subdivided into 300 square meters. The first 300 square meters near the highway was further subdivided into two lots (150 square meters each). I have constructed a house occupying the first 150 square meters while my parents built theirs adjacent to my house. The other 300 square meters was sold to Rami, because we needed money for the hospitalization of my father when he suffered a heart ailment. Ramil now demands a right-of-way, and he wants that the way should pass between my house and that of my parents. If we give in to his demand, we will be demolishing certain portions of our houses. We offered him a way–about six square meters–near the concrete wall between our land and our neighbor but he refused and claimed that a way between my house and my parent’s house is more convenient. He said he should not pay anything because it is our obligation to provide him a right-of- way. Is Ramil correct? Pernicio

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Dear Pernicio,
Easement of right-of-way is governed by Article 649 of the New Civil Code of the Philippines, which states:
“The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right-of-way through the neighboring estates, after payment of the proper indemnity.
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Correlative thereto is Article 650 of the same code, which states that “the easement of right-of-way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.”

In your situation, Ramil may demand a right-of-way subject to the conditions provided by law. Although you have the obligation to provide him a right-of-way, he does not have an unbridled discretion to choose which area of your land he would utilize as passage going to his land. The right-of-way must be the least prejudicial to the servient estate, shortest way to the public highway and he must pay indemnity. This is supported by the decision of the Supreme Court in La Vista Inc., vs. Court of Appeals (G.R. No. 95252. September 5, 1997), where former Supreme Court Associate Justice Josue Bellosillo said:

“A legal or compulsory easement is that which is constituted by law for public use or for private interest. By express provisions of Articles 649 and 650 of the New Civil Code, the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites, namely, (a) the estate is surrounded by other immovables and is without adequate outlet to a public highway; (b) after payment of the proper indemnity; (c) the isolation was not due to the proprietor’s own acts; and, (d) the right-of-way claimed is at a point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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