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Right of Way

Lyle bought a lot in Mactan early in his marriage. He was working in MEPZ holding a good position in one of the multinationals there.  It was a nice 250 sqm lot near enough to the main road so that it was accessible by foot but far enough so that you don’t hear the noise of the street. He had planned to build a house there eventually.

Perhaps, destined for greater things, he was assigned years later to hold a bigger position in a sister company in Manila. He decided to bring his family along including with his new baby. He further decided with his wife that they had no use for the lot they bought in Mactan and will dispose of it.

As he talked to a few potential buyers, only then did he learn that there was no right of way clearly annotated in his title. This was so despite that fact that the owners whom he bought the property from had promised to give him such. Being young and uninitiated then, he did not care about these details when he bought the property.  He was worried this might affect his chances of selling the property at a good price, if it could be sold at all. More than that, he was afraid the owner of the lot he bought, who also happens to own the adjacent lots enclosing his property would ask for additional payment for granting the right of way.

Right of way is a common issue. It is common for people in this situation to develop bitter relations with either the seller or the neighbors with which they need to get the right of way.  Knowing your right, however, does help to at least know what you can reasonably demand from another or vice versa.  With this knowledge plus a propensity for good faith, many relationships between neighbors would be saved from unnecessary bickering.

Basic Concepts

To start with, there are a few vocabularies which one should learn when it comes to the right of way. One such word is “easement.”  Easement is a generic term used for a situation wherein something is imposed on a property for the benefit of another property which belongs to another owner.  Easements may be positive or negative.  A positive easement means asking an owner to do something or to allow something to be done on his property for the good of another.  A negative easement is disallowing an owner to do something which would have been completely allowable were it not for the fact that of another property would be placed at a disadvantage.

The term “dominant estate” refers to the property which will benefit from an easement, while the term “servient estate” refers to the other property involved. Thus, a lot without access to a road is the dominant estate, while the other right at the road side and from which the road right of way is to be taken is the servient estate.

Giving a right of way is actually merely one form of legal easement which may be imposed on a property. There are others, such as, the easement related to waters, which includes laws on where water may be allowed to flow through a property. Then there is an easement of party wall, where both owners share a single wall in between their properties. There is also an easement of light and view where a property may block another from a view. And of course, there is the easement of the right of way.

Right of Way

The right of way is a right given to the owner of the dominant estate to use a portion of the servient estate where there is no other access to the inner property.  No owner of the servient estate may refuse the right or way of the one of the dominant estate under this condition. However, the right of way may not be given without proper compensation to the holder of the servient estate.

A common misconception of the right of way is that when one is given it, he is thought to have bought that portion of the servient estate for his own use. In actuality, the dominant estate is only given the right to use it but not own it. The implication of this is that if another more convenient access towards the dominant estate may exist in the future, then the servient estate may ask the owner of the inner lot to use the new way and get the portion of his or her lot back for personal use. Of course, the servient estate will have to give back to the other owners the amount which was originally paid as indemnity to him or her. The interest shall be considered as forming part of the rental for the use of the access road.

The easement of right of way should be placed in the servient estate in a place with the least disadvantage for its owner, as long as it is also consistent with the rule that the distance from the dominant estate to the public highway is the shortest.  If acquired through sale and the surrounding properties are owned by the seller, the seller in this case is obligated to provide a right of way without a need for payment for such from the buyer. In case the transfer in this situation is through donation, the donee is required to pay the donor for the right of way. If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. Lastly, the owner of the dominant estate cannot use the easement except in line with that which it was originally contemplated


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