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  • Writer's pictureZiggurat Realestatecorp

How voluntary easement of right of way is extinguished

Imagine you buy a a parcel of land and it appears that the land title contains an annotation of encumbrance of easement of right of way, after its previous owner voluntarily constituted an easement of right of way in favor of your neighboring land.

Can you as new owners demand cancellation of right of way?

An easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement.

Easements are established either by law or by the will of the owner. The former is called legal, and the latter, voluntary easement. (Private Development Corporation v. Court of Appeals, G.R. No. 136897, November 22, 2005, Ponente: Honorable Former Associate Justice Cancio C. Garcia)

In this case, what was constituted was a voluntary easement. The concern is whether you, as the new owner, may demand the cancellation of said easement considering that both dominant and servient estates belong to new owners, and that the servient estate has access to public road.

In this regard, there is a Supreme Court decision which clarifies how voluntary easement may be extinguished.

In the case of Unisource Commercial v. Chung (G.R. No. 173252, July 17, 2009, Ponente: Honorable Former Associate Justice Leonardo A. Quisumbing), the Supreme Court explained:

"... As we have said, the opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. 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.

"Neither can petitioner claim that the easement is personal only to Hidalgo since the annotation merely mentioned Sandico and Hidalgo without equally binding their heirs or assigns. That the heirs or assigns of the parties were not mentioned in the annotation does not mean that it is not binding on them. Again, 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...

"We also hold that although the easement does not appear in respondents' title over the dominant estate, the same subsists. It is settled that the registration of the dominant estate under the Torrens system without the annotation of the voluntary easement in its favor does not extinguish the easement. On the contrary, it is the registration of the servient estate as free, that is, without the annotation of the voluntary easement, which extinguishes the easement."

Applying the aforementioned decision, it is clear that change of ownership of dominant and servient estates, and access to public road by servient estate are not valid grounds to extinguish a voluntary easement. Once attached, the easement of right of way survives and remains attached as long as the property exist, unless the easement is extinguished. As mentioned above, the voluntary easement of right of way may be extinguished by subsequent agreement between owners of dominant and servient estates, or by renunciation of the owner of dominant estate.

Source: Manila Times

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