Friday, October 23, 2020
 

Right of way

 

Persida Acosta

Dear PAO,
I bought a certain land from Tom. The land is bounded on the east by mangrove, on the west by the lot of Angel, on the south by the lot of Dina and on the north by the lot of Simon, which adjoins the national highway. I demanded from Simon a right of way, and offered to pay him a reasonable price for his property. Simon refused and claimed that isolation of the property is my fault because he was allegedly negotiating with Tom regarding the possible purchase of the said property, but I intervened; hence, the negotiation failed. He further stated that I knew from the very beginning that the property had no path leading to the nearest highway, but I still bought it. Is Simon correct?
Enzo

Dear Enzo,
The provisions of the New Civil Code of the Philippines governing your situation are as follows:
“ARTICLE. 649. 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.

 


“Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.

“In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.

“This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.
“ARTICLE. 650. 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.”

Thus, you can demand right of way as long as the above requirements of the law are all present. Please be guided by the decision of the court in the case entitled, Spouses Williams vs Zerda (GR 207146, March 15, 2017), where the Supreme Court, through Associate Justice Jose Catral Mendoza, stated that:
“xxx The isolation of the dominant estate was not due to the respondent’s own acts. The property he purchased was already surrounded by other immovables leaving him no adequate ingress or egress to a public highway. Spouses Williams refused to grant a right of way and averred that the isolation of the dominant estate was attributable to the respondent’s own acts. They pointed out that when the respondent purchased the dominant estate, he knew that Sierra was in negotiation with them for the sale of the dominant estate, thus, he was in bad faith. Nonetheless, it cannot be used to defeat the respondent’s claim for a right of way. Sierra had every right to sell his property to anybody. Further, when the respondent bought the dominant estate there could have been no existing contract of sale yet considering that Spouses Williams and Sierra were still in negotiation.”

Applying the above-quoted decision in your situation, the isolation of the property you bought from Tom is not your fault. Even if you have intervened with the negotiation of Simon and Tom involving the possible purchase of the land, the same cannot defeat your right, as a new owner of the dominant estate, to demand a right of way from Simon as long as the other requirements provided by Article 649 and Article 650 of the New Civil Code were complied with — including that the property is surrounded by other immovables and that there is no adequate outlet to a public highway — the right of way is least prejudicial to the servient estate and payment of proper indemnity.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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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