Right of way

Dear Atty. Shalie,

Four decades ago, my parents and their very close friends purchased adjacent lots and built their residential homes at the same time. In order to gain access to the main road, they also had to buy a parcel of lot and agreed to pay for it in equal share. This lot now serves as a shared street from our homes, leading to the main road. As our home is located at the end of the street, a portion of our entrance occupies a portion of our neighbor’s lot. From the beginning, we have been using a portion of our neighbor’s lot for our entrance/garage, as the same is at the tail end of the shared street, and our only access to the main road. However, when our parents died, one of the children of our neighbor has taken it upon himself to disturb the long-standing arrangement, and suddenly demands us to take down the roofing on our garage, saying it is encroaching upon their property, and threatens to go to the barangay officials to compel us to do so. If either of us closes our portion of the shared street, there would be no vehicular access to the main road, which will also affect the other neighbors who are now using the same street. Can we demand for him to honor the right of way established between our parents for many years?

Jessica

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Dear Jessica,

An easement of a right of way or servitude is defined by the Supreme Court as a “real right constituted on another’s property, corporeal, and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on this property for the benefit of another thing or person.” The law provides that: “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 property indemnity.” The easement may either be compulsory (legal) or voluntary (by will of owner). Compulsory easement of right of way requires: 1. That the dominant estate (holder of the easement, as opposed to the servient estate or the property being subject to easement) is surrounded by other immovable and has no adequate outlet to a public highway; 2. Payment of property indemnity, consisting of the value of land occupied and the amount of the damage caused to the servient estate; 3. Isolation was not due to the acts of the proprietor of the dominant estate, and 4. The right of way claimed is at the point least prejudicial to the servient estate, and where the distance from the dominant estate to the public highway may be the shortest, or even when there is access to public highway, the same is not adequate.

Atty. Shalie Lazatin-Obinque


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