LEGAL OPINION
By: Atty. Romar V. Miranda
10 December 2022
MARIA RICO
Lot B
Munich
Dear Miss Rico,
This legal opinion seeks to answer your questions as to:
1. Whether you can recover damages from Gina for the removal of the
wooden foot-bridge?;
2. Whether you can file an action for forcible entry against Gina for
the removal of the foot-bridge?;
3. Whether you acquired a right of way since you had been using the
foot-bridge for more than 20 years?; and
4. Whether you can invoke your right to easement of light and view?
The Facts
In 2000, you had your beach house with pool built on Lot B. Few
months after the construction was completed, you entered into a written
agreement with John. The agreement provides that you will pay the annual
real property tax of the whole Lot A. In exchange, John will allow you a 2-
meter wide and 20-meter long pathway across Lot A as direct access to the
beach. You were also allowed by John to build a wooden foot-bridge which was
placed in the middle of the property.
In 2022, John sold Lot A to Gina Bonifacio. Gina, asked you to remove
the wooden foot-bridge as she will build her vacation house but you refused.
Gina hired a contractor and its workers removed the wooden foot-bridge.
After a few months, Gina’s 2-storey vacation house was completed. It
completely blocked your view of the sea and the height of the building casted
shadows on the beach house requiring you to turn-on the lights even during
mid-day. Your direct access to the beach was removed, hence you had to walk
several blocks before you can reach the beach.
The Applicable Law
You may recover damages for
the removal of the foot-bridge
Article 619 of the Civil Code provides that “Easements are established
either by law or by the will of the owners. The former are called legal and the
latter voluntary easements.”
Even if a voluntary easement — easement by grant — becomes also a
legal easement, or an easement by necessity, it is still a property right, which
continues even if the necessity has ended1.
As there existed a valid and binding agreement between you and John
that allowed you a 2-meter wide and 20-meter long pathway across Lot A as
direct access to the beach, it gave rise to your title to build a footpath on Lot A.
Such title to the voluntary easement is not automatically dissolved when Lot A
was subsequently purchased by Gina.
Easements may be extinguished, under Article 631 of the Civil Code, by:
1) merger; 2) non-use of 10 years; 3) bad condition of the tenement; 4)
expiration of term or fulfillment of the condition; 5) renunciation; and 6)
redemption.
1
Benedicto v. Court of Appeals, L-22733, Sept. 25, 1968
Since a valid voluntary easement existed, and even if Gina has refused to
honor such as the new owner of Lot A, she cannot simply remove the easement
without properly appropriating or redeeming the voluntary easement which
was already present at the time she purchased the servient estate.
As such, Gina’s removal of the foot-bridge gave rise to an obligation to
pay damages for the removal of said easement.
Forcible entry is no longer
an appropriate action
Forcible entry is a summary action to recover material or physical
possession of real property when a person originally in possession was
deprived thereof by force, intimidation, strategy, threat, or stealth 2. The issue
involved is mere physical possession (possession de facto) and not juridical
possession (possession de jure) nor ownership. 3 The action must be brought
within one year from the dispossession.
If an owner deprives a person lawfully entitled to possession (such as on
this case, as the dominant estate), you may bring an action of forcible entry
even as against the owner. However, since the foot-bridge in question was
already removed, the case is already rendered moot and academic for a forcible
entry. The proper recourse now is to seek a judicial declaration of an existing
voluntary easement, and demand Gina to provide such easement. A suit for
damages may also be sought, as explained above.
Right of way
was acquired
Article 615 of the Civil Code provides that “Easements may be
continuous or discontinuous, apparent or non-apparent.
Continuous easements are those the use of which is or may be
incessant, without the intervention of any act of man.
2
Rule 70, Sec. 1, Rules of Court
3
Maddammu v. Court, 74 Phil. 230; Mercado v. Go Bio, 78 Phil. 279; Masallo v. Cesar, 39 Phil. 134
Discontinuous easements are those which are used at intervals and
depend upon the acts of man.
Apparent easements are those which are made known and are
continually kept in view by external signs that reveal the use and enjoyment of
the same.
Non-apparent easements are those which show no external indication of
their existence.” Emphasis added.
Discontinuous easements are those that are used at intervals and
depend upon the acts of man. (Example: Easement of right of way, because it
can be exercised only if a man passes or puts his feet over somebody else’s
land.4
Apparent easements are those made known and continually kept in view
by external signs that reveal the use and enjoyment of the same. [Example:
Right of way when there is an alley or a permanent path. 5]
In relation to the abovementioned provision, Article 622 of the Civil Code
also provides that “Continuous non-apparent easements, and discontinuous
ones, whether apparent or not, may be acquired only by virtue of a title.”
As this case involves a discontinuous and apparent easement, even
assuming that voluntary easement was not honored (as explained in the
preceding paragraphs), the title may be acquired by prescription of only 10
years, which was well-within the timeline as previously laid down in the facts
mentioned above.
Easement of light
and view may be invoked
Article 673 of the Civil Code provides that “Whenever by any title a right
has been acquired to have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot build thereon at less
than a distance of three meters to be measured in the manner provided in
4
4 Manresa 597 [Haffman v. Shoemaker, 71 SE 198]
5
4 Manresa 600
Article 671. Any stipulation permitting distances less than those prescribed in
Article 670 is void.”
The “title” refers to agreement, will, donation, or prescription.
Article 673 applies even when the easement has been acquired under
Article 624. Thus, if an estate has easement of light and view under Article
624, the neighbor cannot construct on his (the neighbor’s) lot unless he
observes the 3-meter rule6.
6
Juan Gargantos v. Tan Yanon, et al., L-14652, June 30, 1960
