LEGAL OPINION
December 9, 2022
Ms. Maria Rico
Lot B
Munich
Dear Ms. Rico;
This legal opinion seeks to answer your questions as to:
a. Whether you can recover from Coleen for the removal of the
wooden foot-bridge?
b. Whether you can file an action for forcible entry against Coleen
for the removal of the foot-bridge?
c. Whether you acquire a right of way since you had been using it
for more than 20 years?
d. Whether you can invoke your right to easement of light and
view?
The Facts:
You bought Lot B which is adjoining property to Lot A which is a beach-
front property. Then, in 2000, you had your beach house with pool built and a
few months after the construction was completed, you entered into a written
agreement with John, the owner of Lot A. The agreement provides that you will
pay for the annual property tax of the whole Lot A in exchange of allowing you a
2-meter wide and 20-meter-long pathway across Lot A as direct access to the
beach, he also allowed you to build a wooden foot-bridge.
In 2022, John sold Lot A to Gina Bonifacio. The latter asked you to remove
the wooden foot-bridge because she will build her vacation house, however, you
refused. Then, Gina hired a contractor and remove your wooden foot-bridge.
After few months, Gina’s two-story vacation house was completed, however, it
blocked your view of the sea and the height of the building casted shadows
which requires you to turn-on the lights even during the mid-day.
Furthermore, your direct access to the beach was removed, hence, you
have to walk several blocks before you can reach the beach.
Discussion of each issue
First Issue:
You may recover damages from Coleen for the removal of the wooden
foot-bridge.
As defined, an easement "is a real right on another’s property, corporeal and
immovable, whereby the owner of the latter must refrain from doing or allow
somebody else to do or something to be done on his property, for the benefit of
another person or tenement". Under Article 619 of the Civil Code, “easements are
established either by law or by the will of the owner. The former is called legal, and
the latter, voluntary easements.”
In your case, what was constituted is a voluntary easement which is apparent
from the agreement that you have entered with John, the owner of Lot A. As decided
by the Supreme Court in the case of Unisource Commercial vs. Chung, GR No.
173252, July 17, 2009,
“A voluntary easement of right of way, like any other contract, could
be extinguished only by mutual agreement or by renunciation of the
owner of the dominant estate” …
“A voluntary easement of right of way is like any other contract. As
such, it is generally effective between the parties, their heirs and
assigns, except in case where the rights and obligations arising from
the contract are not transmissible by their nature, or by stipulation
or by provision of law.”
Applying the aforementioned decision, it is clear that change of ownership of
the property does not extinguished easement. Once attached, the easement of right
of way survives, unless extinguished in accordance to law.
In this case, the subsequent purchased of Gina of the property of John does
not extinguish the easement of right of way which was established through the
agreement entered into by you and John. Hence, whether or not Gina refused to
honor such agreement, she cannot easily remove the wooden foot-bridge.
Therefore, the action of Gina gave rise to your right to recover damages
Second Issue:
You cannot file for an action for forcible entry
Forcible entry is a summary proceeding meant to provide expeditious means
of protecting actual possession or right of possession of property. The only matter
resolved is the question as to who is entitled to the physical or material possession
de facto.
The person who can file for forcible entry is the person deprived of the
possession of any land or building by force, intimidation, threat, strategy, or stealth.
The person must have prior physical possession of the property.
Jurisprudence provides for three (3) elements that must be alleged and
proved for a forcible entry suit to prosper
a. Prior physical possession of the property;
b. Deprivation of such possession by any of the means provided under
Section 1, Rule 70 of the Rules of Court;
c. The action must be filed within One (1) year from the time the
owners or legal possessors learned of their deprivation of the
physical possession of the property. (PLDT vs Citi Appliance M.C
Corporation, GR No. 214546, October 9, 2019)
In addition, the possession of the defendant should be unlawful from the
beginning.
In this case, the possession of Gina of the property is not unlawful because
there is a valid sale between Gina and John which constitute the transfer of
ownership. Hence, this action will not prosper.
Third Issue:
No acquisition of right of way through prescription
An easement is either through title/juridical act or by prescription. The civil
code provides for the modes of acquiring easements, it could be any of the following:
a. Continuous and apparent which can be acquired through title
and prescription;
b. Continuous and non-apparent which can be acquired only
through title;
c. Discontinuous and non-apparent which can also be acquired
only through title; and
d. Discontinuous and non-apparent which can also be acquired
only through title. (Article 622, Civil Code)
In this case, the right of way was established through a title which is
evidenced by the agreement that you have entered into with John. Under the civil
code, the right of way is discontinuous but apparent, it can only be acquired through
title and not through prescription.
Fourth Issue:
Cannot invoke right to easement of light and view.
Easement of light is the right to admit light from the neighboring estate by
virtue of the opening of a window or the making of certain openings. While as
easement of view is the right to make openings or windows, to enjoy the view or
make the same difficult. (Sps. Garcia vs Santos, GR No. 228334, June 17, 2019)
The Supreme Court explained that the legal easement called easement of
light and view refers to an easement whereby the dominant estate enjoys the right
to have free access to light, a little air, and a view overlooking the adjoining estate.
An easement could be positive or negative. A positive easement is one
which imposes upon the owner of the servient estate the obligation of allowing
something to be done or of doing it himself while a negative easement prohibits
the owner of the servient estate from doing something which he could lawfully do if
the easement did not exist.
An easement of light and view is a positive one if the window or opening is
situated in a party wall, while a negative one if the window or opening is through
one’s own wall.
In this case, since that there was no yet exercise of the right provided under
Article 621, Maria cannot for the such right.
Recommendation:
You can file for a case for the payment of damages because of the removal of
the wooden foot-bridge and ask the court for the declaration of the existence of
easement of right of way.
Exercise your right provided under Article 621 of the Civil Code to acquire
easement of light and view through execution of an instrument duly notarized to
forbade the owner of the servient estate which in this case is Gina Bonifacio to
continue constructing tall building.
