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Easement, defined It is and encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner. It is a real right, constituted on another’s property, corporeal and immovable whereby the owner of the latter must refrain from doing or allowing somebody else to do something on his property, for the benefit of another person or tenement.
1. Easement of Light – small windows, not more than 30 cm. square, at the height of the ceiling joist, the purpose of which is to it light, and little air, but not View.
2. Easement of View – full or regular windows overlooking the ading estate. Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (580)
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530) P
Modes of Acquiring Easements
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Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (537a) Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (538a)
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SECTION 5. - Easement of Light and View
Note:
This section deals with two kinds of easements:
Prohibition to make an opening thru the party wall
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Civil Code of the Philippines | Property – Easement of Light and View
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Example: A and B are co-owners of a party wall. (see illustration zz) A cannot make an opening on the wall without the permission of B. If A were allowed to do this (without the B’s consent), there is a distinct possibility that A will later claim the whole wall as his in view of the exterior sign. Moreover, it is as if A were allowed to use the whole thickness of the wall.
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Question: Suppose in the illustration zz, A makes the opening without B’s consent, what will B’s right? Answer: B can order that the opening be closed unless of course a sufficient time for prescription has elapsed – 10 years from the opening of the window. (read Art. 668, par. 1)
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Art. 668. The period of prescription for the acquisition of an easement of light and view shall be counted:
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(1) From the time of the opening of the window, if it is through a party wall; or O
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Note: When the easement of Light and View is Positive and Negative:
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(2) From the Stime t r e of e t the formal prohibition upon the proprietor of the ading land or tenement, if the window is through a wall on the dominant estate. (n) 2
Positive easement If the window is thru a party wall. Therefore the period of prescription commences from the time the window is opened.
Civil Code of the Philippines | Property – Easement of Light and View
Note: The mere opening of the window doesn’t create the easement it is only when after a sufficient lapse of time the window still remains open, the easement of light and view is created. On the case of Fabie v. Lichauco, G.R. No. L-3598, July 24, 1908 “The Supreme court held that, Even if the window is on one’s own wall, still the easement would be positive if the window is on a balcony or projection extending over into the ading land.” Negative easement: If the window is thru one’s own wall, that is, thru a wall of the dominant state. On the case of Cortes v. Yu-Tibo, GR No. 911, March 12, 1903 “The Supreme court held that, the time for the period of prescription should begin from the time of notarial prohibition upon the ading owner. Problems: Question no. 1: A and B own a party wall. A, without B’s consent, made an opening in the party wall on December 9, 1956. In 1957, may B still close the opening? Answer: Yes, for no easement has yet been acquired by A. (read Art. 668, par. 1) Question no 2: In question no. 1, can B close the window on December 10, 1966? Answer: No, for more than 10 years have elapse; and A has already acquired the easement (read Art. 668, par. 1; Art. 620) Question no. 3: A and B are ading owners. In 1956, A made an opening in his own wall. In 1961, A makes a formal notarial demand on B, prohibiting him to obstruct the view, In 1967, may B still set up an obstruction? 3
Answer: Yes, because although more than 10 years had elapsed since the opening of the window, still less than 10 years have elapsed since the notarial prohibition. that what A is trying to obtain is a negative easement. Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, ading a tenement or piece of land belonging to another, can make in it openings to it light at the height of the ceiling ts or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen. Nevertheless, the owner of the tenement or property ading the wall in which the openings are made can close them should he acquire partownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired. (581a) Note: In this Article, the openings or windows referred to in this article are for light, not view, hence the conditions or restrictions set for them. Restrictions referred to by Article 669:
1. Maximize size – e.g. 30 cm. square, (not more than 30 cm. length or width) 2. There must be an iron grating imbedded in the wall 3. There must be wire screen 4. The opening must be at the height of the ceiling joists (beam) or immediately under the ceiling.
Civil Code of the Philippines | Property – Easement of Light and View
Question: A has made restricted windows on his own wall for light. What can the ading or abutting owner do? Answer: The ading owner can a) He can obstruct the light by constructing a higher building on his own land or by raising a blocking wall; b) If the wall becomes a party wall, he can close the window, unless there is a stipulation to the contrary. (read Art. 669) Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an ading land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters.
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The nonobservance of these distances does not give rise to prescription. (582a)
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Art. 671. The distance referred to in the preceding article shall be P r o p e r t y B measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties. (583)
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Civil Code of the Philippines | Property – Easement of Light and View
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b. Regular windows can be opened provided that the proper distances are followed. Proper distances: a. Windows having direct views, observe at least 2 meters distance between the wall having the windows and the boundary line. b. Windows having side or oblique views, observe a distance of at least 60 cms. Between the boundary line and nearest edge of the window. Rules as to terraces: Article 670 applies also to terraces, if there are railings (since the railings afford protection to the viewer), but not if there are no railings (since the lack of protection makes difficult their use as windows) Question: On his wall, one meter away from the boundary line, A opened regular windows with direct views. May A be ordered to close them, at any time? Answer: A may be ordered to close them, provided that the ading owner makes the demand for the closure within the period of 10 years from the opening of the window, otherwise his right of closure will be deemed prescribed. (Soriano v Sternberg, November 18, 1920) Note: “The nonobservance of these distances does not give rise to prescription.” It means that the mere non-observance of these distances doesn’t give rise to prescription because this being a negative easement, a notarial prohibition is still required before the period of prescription will commence to run.
Note: Rules for Regular Windows:
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670 and 671 deal with regular, full windows (distinguished from the restricted windows referred to in Art. 669) 5
Art. 672. The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances. (584a)
Civil Code of the Philippines | Property – Easement of Light and View
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Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an ading 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 Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. (585a)
Title, defined Refers to agreement, will, donation, or prescription.
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Examples:A and B are ading owners, By virtue of a contract, B agreed to give A an easement of view over his land. In the absence of any stipulation about distance, B (servient owner) cannot construct a building on his own land at less than a distance of three meters from the boundary line. However, the distance may be increased or decreased provided that the minimum distances prescribed in Article 670 are observed. The same may be said of an easement of view acquired by prescription.
Civil Code of the Philippines | Property – Easement of Light and View
On the case of Gargantos v. Tan Yanon, 108 Phil. 889 “The Supreme court held that, if an estate has easement of light and view under Article 624, the neighbor cannot construct on his lot unless he observes the 3-meter rule.” In this section are Digested cases pertaining to Easement of Light and View: Gargantos v. Yanon 108 Phil. 889 Facts: The record discloses that late Francisco Sanz subdivided his lot into three and then sold each to different persons. One was purchased by Guillermo Tengtio who subsequently sold it to Vecente Veza. Another portion with a house of strong materials was sold to respondent Tan Yanon. This house has on its northeastern side, doors and windows over-looking the third portion, which, together with the camarin and small building thereon, after ing through several hands, was finally acquired by petitioner Juan Gargantos. Gargantos applied to the Municipal Mayor for a permit to demolish the old camarin, the latter granted it to him. He applied for another permit to construct a combined residential house and warehouse on his lot. Respondent Yanon opposed the approval of his application. Because the provincial fiscal and district engineer recommended the granting of the building permit, respondent filed an action to restrain petitioner from constructing a building that would prevent the respondent from receiving light and enjoying the view through the window of his house. However, the CFI of Romblon dismissed the complaint. On appeal, the CA ened defendant from constructing his building unless “he erects the same at a distance of not less than three meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code.” Issue: Whether or not the property of respondent Tan Yanon has an easement of light and view against the property of petitioner Gargantos. Held: 7
Yes. The Court held that Article 624 of the Civil code provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and ively, unless at the time the ownership of the two estate is divided, contrary is stated in the deed of alienation of either of them or the sign is made to disappear before the instrument is executed. The existence of the doors and windows in the northeastern side is equivalent to a title for the visible and permanent sign of an easement is the title that characterizes its existence. While the law declares that the easement is to “continue” the easement actually arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates. Cortes v. Yu-Tibo GR No. 911, March 12, 1903 Facts: The house No.65 Calle Rosario, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; that these windows have been in existence since the year 1843, and that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of one of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. The court practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63 from making improvements of any kind therein at any time prior to the complaint. The contention of the plaintiff is that by the constant and uninterrupted use of the windows during a period of fifty-nine years he acquired by prescription an easement of light in favor of the house No.65, and as a servitude upon house No.63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the easement. He contends that the easement of light is positive; and that therefore the period of
Civil Code of the Philippines | Property – Easement of Light and View
possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No.63, and without opposition on his part. However, the defendant contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement. The court ruled that the easement of light is negative. Issue: Whether or not the easement of light in the case of windows opened in one’s own wall is negative. Held: Yes. The Supreme Court said that the case involves windows opened in a wall belonging to the wife of the plaintiff and it is of their opinion that the windows opened in one’s own wall is of negative character, and, as such, can not be acquired by prescription under Art.621 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate may, by a formal act, have prohibited the owner of the servient estate from doing something which it would be lawful for him to do were it not for the easement. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of house No.63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of house No.65 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time might have elapsed since the windows were opened in the wall of the said house no.65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed. 8
When a person open windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement. It is that the use if the windows opened in a wall on one’s own property, in the absence of some covenant or express agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property and does not create any right to maintain the windows to the prejudice of the latter. The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to Art.1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one’s own edifice does not consist precisely in the fact of opening them or using them. The easement really consists in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light. Fabie v. Lichauco G.R. No. L-3598, July 24, 1908 Facts: Petitioner Miguel Fabie applied for the registration of his property in Manila free from any encumbrances except the easement of right of way in favor of respondents Julita Lichauco and Hijos de Roxas. In addition to the said right of way, respondents also claim that of light and view and drainage. However, the claim was later reduce only to that of the light and view. Lichauco cliamed that when Juan Bautista Coloma, the original owner of both estates, established not only an easement of right of way but also that of light and view and that when both the properties were alienated, the apparent signs were not removed. The apparent sign allegedly consists of a gallery with windows through which light is itted. It was ed on columns erected on the ground belonging to the petitioner and the balcony on Lichauco’s property is ed by uprights erected on the land by
Civil Code of the Philippines | Property – Easement of Light and View
petitioner. The parties itted the existence of such gallery. The house was now a frontage of 18 meters and 60 centimeters, of which 16 meters and 60 centimeters correspond to the main part of the same, and 1 meter and 90 centimeters to the gallery in question. It results, therefore, that at the present day, the house has nearly 2 meters more frontage than when it was alienated by Coloma. Therefore, at the present day the house is erected partly on the land belonging to the owner and partly, the gallery, over a lot belonging to another; that is, over that of the petitioner. When it was sold in October, 1848, no portion of the house occupied the lot last mentioned, but the entire building was erected over a lot belonging to the owner as set forth in the instrument of sale. The lower court held that the right of way and drainage exist in favor of the respondents’ respective properties. The claim as to the easement of light and view was dismissed by the court. Issue: Whether or not Respondents are entitled to the easement of light and view. Held: No. The burden is not on the petitioner to prove on what time the gallery in controversy was constructed inasmuch as he limits himself to sustaining and defending the freedom of his property, denying the easement o flight and view of the respondent pretends to impose over it. A property is assumed to be from all encumbrance unless the contrary is proved. Respondent who claims the said easement is obliged to prove the aforementioned gallery, in which the apparent sign of the easement is made to consist in the present case, existed at the time of ownership of her property and that of the petitioner were separated. And inasmuch as this issue has not been proved, the claim of the respondents as to the easements of the light and view which the petitioner does not it, must of necessity be dismissed. Therefore, it does not appear from the agreement of the parties that the respondents has balconies over the land of the petitioner; and as it is, since it has been positively shown that the said balconies exceed the limit of the lot owned by the former, nor less that they invade the atmospheric 9
area of the lot belonging to the latter, it follows that, even in accordance with the theory maintained by the respondents with which on of its lack of basis, we consider it unnecessary to deal herein as to its other aspect, the easement of view, which might result in such case from the existence of the balconies alluded to, would be negative and not a positive one, because the erection of the same would not constitute, according to their own statement, an invasion of the right of another, but the lawful exercise of the right inherent to the dominion of the respondents to construct within their own lot. And as said easement is negative, it cannot have prescribed in favor of the property of the respondents in the absence of any act of opposition, according to the agreement, by which they or their principals would have prohibited the petitioner or his principals to do any work which obstruct the balconies in question, inasmuch as said act of opposition is what constitutes the necessary and indispensable point of departure for computing the time required by law for the prescription of negative easements. Thus, the judgment appealed from was affirmed in toto by the Court. Purugganan v. Paredes 69 SCRA 69 Facts: Plaintiff-appellee Emilio Purugganan is the owner of a piece of lot subdivided as Lot 1 and Lot 2, situated at Abra, adjacent to and bounded on the North by the lot of defendant-appellant Felisa Paredes. The lots of the plaintiff-appellee are subject to an easement of drainage in favor of the defendants-appellants fully quoted in the Decree of Registration. In or about March 1951, the defendants-appellants constructed a house on their lot adjacent to Lots 1 and 2 of plaintiff-appellee in a manner that the southern side of their house is exactly on the brick wall, the southern side of which is the demarcation line between the plaintiff-appellee and the defendants-appellants, demolishing said brick wall and built thereon the southern wall of their house with 3 windows. The house constructed by the defendants-appellants is 2-1/2 meters longer than the length of roofing allowed in the Decree of Registration, and has an outer roofing if 1.20 meters, protruding over the property of the plaintiff-appellee which is .20 meters wider than that allowed in the same Decree of Registration, and
Civil Code of the Philippines | Property – Easement of Light and View
the rain water from GI roofing falls about 3 meters inside Lots 1 and 2 of the plaintiff-appellee. The defendants-appellants also placed 3 windows each on the first and second floors of their house on the side facing lots 1 and 2 of plaintiff-appellee. From the time the defendants-appellants started to construct their house, the plaintiff-appellee has repeatedly and continuously been demanding from the defendants-appellants that the construction of their house be in accordance with the easement, but the defendants-appellants refused to observe the easement and to close their windows. They also prohibited the plaintiff-appellee from constructing a party wall between points 1 and 2 of Lot 1 and between points 2 and 3 and 4 of Lot 1. Defendants-appellants alleged that the plaintiff-appellee was the private surveyor who surveyed their lot in 1925 and that in the course his survey he had acted in bad faith when he excluded the portion of their land, which was the subject, matter of their opposition to the registration of plaintiffappellee’s lots; that they constructed their house in 1950 without any protest from the plaintiff-appellee and was almost complete when the Decree of Registration was issued by the court; that the plaintiff-appellee knew fully well that the defendants-appellants were merely reconstructing a house which had been existing prior to the bombing of Bangued in 1945; and that the brick wall standing along the house is exclusively owned by them. The lower court rendered judgment in favor of the plaintiff and against the defendants; ordering the defendants to reconstruct the roof and eaves of their house on the southern side now existing on their lot such that the falling water shall not fall on curve into the lots of the plaintiff beyond one meter from the boundary line and by 8-1/2 meters in length and to remove the said protruding eaves and roof. Issue: Whether or not the failure to have easement annotated on title extinguishes the easement of light and view. Held: Defendants-appellants also blamed the trial court for ruling that they have not acquired an easement of light and view of the property of the plaintiff10
appellee. The trial court’s ruling that defendants-appellants have not acquired and easement of light and view on the property is based on Sec.39 of the Land Registration Act, which states that if there are easement or other rights appurtenant to a parcel of ed land which for any reason have failed to be ed, such easement or rights shall remain so appurtenant notwithstanding such failure, and shall be held to with the land until cut off or extinguished by the registration of the servient estate or in any other manner. An easement is cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Sec. 39 of the Land Registartion Act (Act 496).
Masongsong v. Flores 57 Phil. 243 Facts: Petitioner Alejandro Masongsong is the owner of a ed land in Manila while Respondent Victoria Flores, is the owner of an ading lot where a house has windows overlooking the ading property of Masongsong, leaving a distance of less than two meters between the two houses. Separating the two houses is public alley. The title of petitioner extends over such alley. Issue: Whether or not an alley constructed in accordance with the Revised Ordinances of the City of Manila, and open to the public, falls within the provisions of the Civil code concerning the easements of light and view inapplicable to buildings separated by a public thoroughfare. Held: The Court held that a private alley open to the public, under the circumstances of this case, falls within the exception provided by article
Civil Code of the Philippines | Property – Easement of Light and View
584 of the Civil Code to article 582 thereof, and that accordingly the plaintiff has no legal cause of action. Article 582 of the Civil Code provides that “no windows or balconies or other similar projections which directly overlook the ading property may be opened or built without leaving a distance of not less than two meters between the wall in which they are built and such ading property.” Article 584 of the Civil Code makes the provisions of article 582 inapplicable “to buildings separated by a public thoroughfare”. Article 584 must be harmonized with municipal ordinances. Severina and Flora Choco v. Santamaria 21 Phil. 132 Facts: Defendant Santamaria is in possession of a parcel of land on the corner of Calles Pescadores and P.Rada in Tondo, Manila. There he erected a house flush with the boundary line of the adjacent property; that the plaintiffs are the owners of the land on both sides of defendant’s house. Defendant made several openings and windows in the walls of the house on both sides overlooking the property of the plaintiffs Choco. Although a written protest has been made by the plaintiffs and an amicable adjustment has been suggested, the two parties failed to reach a compromise, hence, no adjustment was made on the windows. Apparently, the windows of the defendant’s building miserably failed the requisites provided by law: either the windows under the ceiling did not comply with 30cm2 requirement, or the windows only had wire screening when what is required by law is an iron grate embedded in the wall and a wire screen. The rear wall windows were 50 x 80 cm. The right wall windows were 25 x 35 cm in the 2 nd storey , and 25 x 25 cm in the 1 st storey. The other windows were 35 x 67 cm, and 75 x 90, all of which covered by wire screening only. The law provides in Article 581 of the Civil Code (article 669, New Civil Code), “the owner of a wall which is not a party wall, ading another’s estate, amy make in it windows or openings to it light at the height of the ceiling joists or immediately under the ceiling, 30cm2 , with an iron grate embedded in the wall and a wire screen.” In the instant case, the windows are in a wall not a party wall ading the Choco estate and the windows are more or less than 30cm2 and have a 11
wire screen but there does not appear to be the iron grate embedded in the wall. The Chocos files a case to close all the windows of defendant’s building. The court ruled in their favor but did not order the permanent closing of window 2, 3, 4, 5, 6, 8, 9 because only window 7 was not under the ceiling, and window 1 in the balcony of the back part of defendant’s building. Hence. This appeal. The lower court said that window 1 in the balcony overlooks Calle Padre Rada and that though the Chocos’ lot can be seen from this window, it is not contiguous to their property. Issues: (1) Whether or not window 1 should be closed. (2) Whether or not windows 2, 3, 4, 5, 6, 8, 9 should be permanently closed. Held:
(1) Yes. If it is in front of the Chocos’ lot, it is unquestionable that it directly overlooks the same; but even though it did not only a side or oblique view of the lot could be obtained from it, it could not be kept open, since between it and the Chocos’ property, there does not intervene the distance required by law- that of 2m in the 1st case, and 60 cm in the 2nd case. In reality, there is no distance at all between the said window and the Chocos’ lot because as the Supreme Court has said, the window is perpendicular to the boundary line of the said lot; therefore, its opening is a manifest violation of Art. 582 of the Civil Code (Article 670, New Civil Code) which states that: “Windows with direct views, or balconies or any similar openings projecting over the estate of the neighbor, cannot be made if there is not a distance of at least 2m between the wall in which they are built and said estate.” “Neither can side nor oblique views be opened over said property unless there is a distance of 60cm.” Hence, the defendant is ordered to close finally and forever window 1. (2) No. They cannot be permanently closed because only window 7 is not immediately under the ceiling (techos). By “techo” is understood that a part of a construction which covers the rooms under it and certainly forms
Civil Code of the Philippines | Property – Easement of Light and View
one of the essential parts of every story. A story is composed of earth, pavement and ceiling, the latter, that is, the ceiling, being part of the story that is visible to the observer situated below in the room covered by it. Consequently, every storey has a ceiling, and not, as the Chocos maintain, the upper one alone. If windows 2, 3, 4, 5, 6, 8, 9 comply with requirements of the law under Article 581 (Article 669, New Civil Code) they can be reopened. Cid v. Javier No. L-14116; January 20, 1961 Facts: Petitioner's construction of a building allegedly being made in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of Laoag, and in disregard of respondent's right to light and view. Respondents' house, as well as that of petitioner, are within their respective properties that respondents' wall stands only 50 centimeters from the boundary of the 2 lots, whereas, the wall of petitioner's building was constructed 1 meter from the boundary or 1 meter and 50 centimeters from the wall of the house of respondents. As a result, the lower court found that the eaves of the two houses overlap each other by 24 centimeters. This, the Court of Appeals declared to be violative of Ordinance No. 3, series of 1909, amending Sections 1, 5, 6, and 13 of the Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters, measured from eaves to eaves of ading buildings of strong materials. Issue: Whether or not __________ Held: It must be noted, however, that the Ordinance in question was adopted since 1909 and was, therefore, already in force at the time the house of respondents was reconstructed in 1946 after the building originally erected thereon was burned in 1942. If respondents constructed their house at least one meter from the boundary line, as petitioner has constructed hers, there would be no overlapping of the eaves and there would not be any violation of the ordinance. As things now stand, in view of the construction by the respondents, the overlapping of the eaves and the consequential violation of the ordinance can not entirely be attributed 12
to petitioner, as to require her alone to make the adjustments necessary for the observance of the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the ordinance would be exacted, the adjustments should be made not only by petitioner, but also by the respondents. There is, therefore, no reason for the continuation of the injunction. “Granting that in the instant case an easement of light and view was acquired by prescription, it was cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Sec. 39 of the Land Registration Act (Act 496).” Soriano vs Sternberg, November 18, 1920 Facts: The plaintiff desires to obtain a judicial order, to compel the defendant to close the windows in the wall of his house adjacent to the property of the plaintiff, because the wall of defendant’s house is less than 2 meters from the division line. The defendant pleads prescription and relies exclusively upon this defense. The lower court agreed with the plaintiff’s contention and ordered the windows of the defendant’s house to be closed, with cost against the defendant. Issue: Whether or not a right action to enforce Article 670 of the Civil Code may be lost by failure to prosecute within the prescriptive period fixed by the Code of Civil Procedure. Held: It should be first noted that the defendant in this case has never prohibited the plaintiff from building on his, the plaintiff’s, own land, any wall that he may desire to construct. Further, it should be noted that the offending edifice of the defendant was constructed in 1905. This was the year when the defendant violated the law. This was the date when the cause of action accrued. Nevertheless, the windows complained of were permitted to be open for thirteen years without protest. The plaintiff must consequently, by
Civil Code of the Philippines | Property – Easement of Light and View
reason of his own laches, be considered to have waived any right which he may have had to compel the windows to be closed.
13
Civil Code of the Philippines | Property – Easement of Light and View
1. Easement of Light – small windows, not more than 30 cm. square, at the height of the ceiling joist, the purpose of which is to it light, and little air, but not View.
2. Easement of View – full or regular windows overlooking the ading estate. Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (580)
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530) P
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Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (537a) Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (538a)
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SECTION 5. - Easement of Light and View
Note:
This section deals with two kinds of easements:
Prohibition to make an opening thru the party wall
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Civil Code of the Philippines | Property – Easement of Light and View
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Example: A and B are co-owners of a party wall. (see illustration zz) A cannot make an opening on the wall without the permission of B. If A were allowed to do this (without the B’s consent), there is a distinct possibility that A will later claim the whole wall as his in view of the exterior sign. Moreover, it is as if A were allowed to use the whole thickness of the wall.
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Question: Suppose in the illustration zz, A makes the opening without B’s consent, what will B’s right? Answer: B can order that the opening be closed unless of course a sufficient time for prescription has elapsed – 10 years from the opening of the window. (read Art. 668, par. 1)
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Art. 668. The period of prescription for the acquisition of an easement of light and view shall be counted:
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Note: When the easement of Light and View is Positive and Negative:
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(2) From the Stime t r e of e t the formal prohibition upon the proprietor of the ading land or tenement, if the window is through a wall on the dominant estate. (n) 2
Positive easement If the window is thru a party wall. Therefore the period of prescription commences from the time the window is opened.
Civil Code of the Philippines | Property – Easement of Light and View
Note: The mere opening of the window doesn’t create the easement it is only when after a sufficient lapse of time the window still remains open, the easement of light and view is created. On the case of Fabie v. Lichauco, G.R. No. L-3598, July 24, 1908 “The Supreme court held that, Even if the window is on one’s own wall, still the easement would be positive if the window is on a balcony or projection extending over into the ading land.” Negative easement: If the window is thru one’s own wall, that is, thru a wall of the dominant state. On the case of Cortes v. Yu-Tibo, GR No. 911, March 12, 1903 “The Supreme court held that, the time for the period of prescription should begin from the time of notarial prohibition upon the ading owner. Problems: Question no. 1: A and B own a party wall. A, without B’s consent, made an opening in the party wall on December 9, 1956. In 1957, may B still close the opening? Answer: Yes, for no easement has yet been acquired by A. (read Art. 668, par. 1) Question no 2: In question no. 1, can B close the window on December 10, 1966? Answer: No, for more than 10 years have elapse; and A has already acquired the easement (read Art. 668, par. 1; Art. 620) Question no. 3: A and B are ading owners. In 1956, A made an opening in his own wall. In 1961, A makes a formal notarial demand on B, prohibiting him to obstruct the view, In 1967, may B still set up an obstruction? 3
Answer: Yes, because although more than 10 years had elapsed since the opening of the window, still less than 10 years have elapsed since the notarial prohibition. that what A is trying to obtain is a negative easement. Art. 669. When the distances in Article 670 are not observed, the owner of a wall which is not party wall, ading a tenement or piece of land belonging to another, can make in it openings to it light at the height of the ceiling ts or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen. Nevertheless, the owner of the tenement or property ading the wall in which the openings are made can close them should he acquire partownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired. (581a) Note: In this Article, the openings or windows referred to in this article are for light, not view, hence the conditions or restrictions set for them. Restrictions referred to by Article 669:
1. Maximize size – e.g. 30 cm. square, (not more than 30 cm. length or width) 2. There must be an iron grating imbedded in the wall 3. There must be wire screen 4. The opening must be at the height of the ceiling joists (beam) or immediately under the ceiling.
Civil Code of the Philippines | Property – Easement of Light and View
Question: A has made restricted windows on his own wall for light. What can the ading or abutting owner do? Answer: The ading owner can a) He can obstruct the light by constructing a higher building on his own land or by raising a blocking wall; b) If the wall becomes a party wall, he can close the window, unless there is a stipulation to the contrary. (read Art. 669) Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an ading land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters.
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The nonobservance of these distances does not give rise to prescription. (582a)
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Art. 671. The distance referred to in the preceding article shall be P r o p e r t y B measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties. (583)
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Civil Code of the Philippines | Property – Easement of Light and View
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b. Regular windows can be opened provided that the proper distances are followed. Proper distances: a. Windows having direct views, observe at least 2 meters distance between the wall having the windows and the boundary line. b. Windows having side or oblique views, observe a distance of at least 60 cms. Between the boundary line and nearest edge of the window. Rules as to terraces: Article 670 applies also to terraces, if there are railings (since the railings afford protection to the viewer), but not if there are no railings (since the lack of protection makes difficult their use as windows) Question: On his wall, one meter away from the boundary line, A opened regular windows with direct views. May A be ordered to close them, at any time? Answer: A may be ordered to close them, provided that the ading owner makes the demand for the closure within the period of 10 years from the opening of the window, otherwise his right of closure will be deemed prescribed. (Soriano v Sternberg, November 18, 1920) Note: “The nonobservance of these distances does not give rise to prescription.” It means that the mere non-observance of these distances doesn’t give rise to prescription because this being a negative easement, a notarial prohibition is still required before the period of prescription will commence to run.
Note: Rules for Regular Windows:
a. Articles
670 and 671 deal with regular, full windows (distinguished from the restricted windows referred to in Art. 669) 5
Art. 672. The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances. (584a)
Civil Code of the Philippines | Property – Easement of Light and View
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Art. 673. Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an ading 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 Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. (585a)
Title, defined Refers to agreement, will, donation, or prescription.
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Examples:A and B are ading owners, By virtue of a contract, B agreed to give A an easement of view over his land. In the absence of any stipulation about distance, B (servient owner) cannot construct a building on his own land at less than a distance of three meters from the boundary line. However, the distance may be increased or decreased provided that the minimum distances prescribed in Article 670 are observed. The same may be said of an easement of view acquired by prescription.
Civil Code of the Philippines | Property – Easement of Light and View
On the case of Gargantos v. Tan Yanon, 108 Phil. 889 “The Supreme court held that, if an estate has easement of light and view under Article 624, the neighbor cannot construct on his lot unless he observes the 3-meter rule.” In this section are Digested cases pertaining to Easement of Light and View: Gargantos v. Yanon 108 Phil. 889 Facts: The record discloses that late Francisco Sanz subdivided his lot into three and then sold each to different persons. One was purchased by Guillermo Tengtio who subsequently sold it to Vecente Veza. Another portion with a house of strong materials was sold to respondent Tan Yanon. This house has on its northeastern side, doors and windows over-looking the third portion, which, together with the camarin and small building thereon, after ing through several hands, was finally acquired by petitioner Juan Gargantos. Gargantos applied to the Municipal Mayor for a permit to demolish the old camarin, the latter granted it to him. He applied for another permit to construct a combined residential house and warehouse on his lot. Respondent Yanon opposed the approval of his application. Because the provincial fiscal and district engineer recommended the granting of the building permit, respondent filed an action to restrain petitioner from constructing a building that would prevent the respondent from receiving light and enjoying the view through the window of his house. However, the CFI of Romblon dismissed the complaint. On appeal, the CA ened defendant from constructing his building unless “he erects the same at a distance of not less than three meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code.” Issue: Whether or not the property of respondent Tan Yanon has an easement of light and view against the property of petitioner Gargantos. Held: 7
Yes. The Court held that Article 624 of the Civil code provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and ively, unless at the time the ownership of the two estate is divided, contrary is stated in the deed of alienation of either of them or the sign is made to disappear before the instrument is executed. The existence of the doors and windows in the northeastern side is equivalent to a title for the visible and permanent sign of an easement is the title that characterizes its existence. While the law declares that the easement is to “continue” the easement actually arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates. Cortes v. Yu-Tibo GR No. 911, March 12, 1903 Facts: The house No.65 Calle Rosario, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; that these windows have been in existence since the year 1843, and that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of one of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. The court practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63 from making improvements of any kind therein at any time prior to the complaint. The contention of the plaintiff is that by the constant and uninterrupted use of the windows during a period of fifty-nine years he acquired by prescription an easement of light in favor of the house No.65, and as a servitude upon house No.63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the easement. He contends that the easement of light is positive; and that therefore the period of
Civil Code of the Philippines | Property – Easement of Light and View
possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No.63, and without opposition on his part. However, the defendant contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement. The court ruled that the easement of light is negative. Issue: Whether or not the easement of light in the case of windows opened in one’s own wall is negative. Held: Yes. The Supreme Court said that the case involves windows opened in a wall belonging to the wife of the plaintiff and it is of their opinion that the windows opened in one’s own wall is of negative character, and, as such, can not be acquired by prescription under Art.621 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate may, by a formal act, have prohibited the owner of the servient estate from doing something which it would be lawful for him to do were it not for the easement. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of house No.63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of house No.65 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time might have elapsed since the windows were opened in the wall of the said house no.65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed. 8
When a person open windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement. It is that the use if the windows opened in a wall on one’s own property, in the absence of some covenant or express agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property and does not create any right to maintain the windows to the prejudice of the latter. The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to Art.1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one’s own edifice does not consist precisely in the fact of opening them or using them. The easement really consists in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light. Fabie v. Lichauco G.R. No. L-3598, July 24, 1908 Facts: Petitioner Miguel Fabie applied for the registration of his property in Manila free from any encumbrances except the easement of right of way in favor of respondents Julita Lichauco and Hijos de Roxas. In addition to the said right of way, respondents also claim that of light and view and drainage. However, the claim was later reduce only to that of the light and view. Lichauco cliamed that when Juan Bautista Coloma, the original owner of both estates, established not only an easement of right of way but also that of light and view and that when both the properties were alienated, the apparent signs were not removed. The apparent sign allegedly consists of a gallery with windows through which light is itted. It was ed on columns erected on the ground belonging to the petitioner and the balcony on Lichauco’s property is ed by uprights erected on the land by
Civil Code of the Philippines | Property – Easement of Light and View
petitioner. The parties itted the existence of such gallery. The house was now a frontage of 18 meters and 60 centimeters, of which 16 meters and 60 centimeters correspond to the main part of the same, and 1 meter and 90 centimeters to the gallery in question. It results, therefore, that at the present day, the house has nearly 2 meters more frontage than when it was alienated by Coloma. Therefore, at the present day the house is erected partly on the land belonging to the owner and partly, the gallery, over a lot belonging to another; that is, over that of the petitioner. When it was sold in October, 1848, no portion of the house occupied the lot last mentioned, but the entire building was erected over a lot belonging to the owner as set forth in the instrument of sale. The lower court held that the right of way and drainage exist in favor of the respondents’ respective properties. The claim as to the easement of light and view was dismissed by the court. Issue: Whether or not Respondents are entitled to the easement of light and view. Held: No. The burden is not on the petitioner to prove on what time the gallery in controversy was constructed inasmuch as he limits himself to sustaining and defending the freedom of his property, denying the easement o flight and view of the respondent pretends to impose over it. A property is assumed to be from all encumbrance unless the contrary is proved. Respondent who claims the said easement is obliged to prove the aforementioned gallery, in which the apparent sign of the easement is made to consist in the present case, existed at the time of ownership of her property and that of the petitioner were separated. And inasmuch as this issue has not been proved, the claim of the respondents as to the easements of the light and view which the petitioner does not it, must of necessity be dismissed. Therefore, it does not appear from the agreement of the parties that the respondents has balconies over the land of the petitioner; and as it is, since it has been positively shown that the said balconies exceed the limit of the lot owned by the former, nor less that they invade the atmospheric 9
area of the lot belonging to the latter, it follows that, even in accordance with the theory maintained by the respondents with which on of its lack of basis, we consider it unnecessary to deal herein as to its other aspect, the easement of view, which might result in such case from the existence of the balconies alluded to, would be negative and not a positive one, because the erection of the same would not constitute, according to their own statement, an invasion of the right of another, but the lawful exercise of the right inherent to the dominion of the respondents to construct within their own lot. And as said easement is negative, it cannot have prescribed in favor of the property of the respondents in the absence of any act of opposition, according to the agreement, by which they or their principals would have prohibited the petitioner or his principals to do any work which obstruct the balconies in question, inasmuch as said act of opposition is what constitutes the necessary and indispensable point of departure for computing the time required by law for the prescription of negative easements. Thus, the judgment appealed from was affirmed in toto by the Court. Purugganan v. Paredes 69 SCRA 69 Facts: Plaintiff-appellee Emilio Purugganan is the owner of a piece of lot subdivided as Lot 1 and Lot 2, situated at Abra, adjacent to and bounded on the North by the lot of defendant-appellant Felisa Paredes. The lots of the plaintiff-appellee are subject to an easement of drainage in favor of the defendants-appellants fully quoted in the Decree of Registration. In or about March 1951, the defendants-appellants constructed a house on their lot adjacent to Lots 1 and 2 of plaintiff-appellee in a manner that the southern side of their house is exactly on the brick wall, the southern side of which is the demarcation line between the plaintiff-appellee and the defendants-appellants, demolishing said brick wall and built thereon the southern wall of their house with 3 windows. The house constructed by the defendants-appellants is 2-1/2 meters longer than the length of roofing allowed in the Decree of Registration, and has an outer roofing if 1.20 meters, protruding over the property of the plaintiff-appellee which is .20 meters wider than that allowed in the same Decree of Registration, and
Civil Code of the Philippines | Property – Easement of Light and View
the rain water from GI roofing falls about 3 meters inside Lots 1 and 2 of the plaintiff-appellee. The defendants-appellants also placed 3 windows each on the first and second floors of their house on the side facing lots 1 and 2 of plaintiff-appellee. From the time the defendants-appellants started to construct their house, the plaintiff-appellee has repeatedly and continuously been demanding from the defendants-appellants that the construction of their house be in accordance with the easement, but the defendants-appellants refused to observe the easement and to close their windows. They also prohibited the plaintiff-appellee from constructing a party wall between points 1 and 2 of Lot 1 and between points 2 and 3 and 4 of Lot 1. Defendants-appellants alleged that the plaintiff-appellee was the private surveyor who surveyed their lot in 1925 and that in the course his survey he had acted in bad faith when he excluded the portion of their land, which was the subject, matter of their opposition to the registration of plaintiffappellee’s lots; that they constructed their house in 1950 without any protest from the plaintiff-appellee and was almost complete when the Decree of Registration was issued by the court; that the plaintiff-appellee knew fully well that the defendants-appellants were merely reconstructing a house which had been existing prior to the bombing of Bangued in 1945; and that the brick wall standing along the house is exclusively owned by them. The lower court rendered judgment in favor of the plaintiff and against the defendants; ordering the defendants to reconstruct the roof and eaves of their house on the southern side now existing on their lot such that the falling water shall not fall on curve into the lots of the plaintiff beyond one meter from the boundary line and by 8-1/2 meters in length and to remove the said protruding eaves and roof. Issue: Whether or not the failure to have easement annotated on title extinguishes the easement of light and view. Held: Defendants-appellants also blamed the trial court for ruling that they have not acquired an easement of light and view of the property of the plaintiff10
appellee. The trial court’s ruling that defendants-appellants have not acquired and easement of light and view on the property is based on Sec.39 of the Land Registration Act, which states that if there are easement or other rights appurtenant to a parcel of ed land which for any reason have failed to be ed, such easement or rights shall remain so appurtenant notwithstanding such failure, and shall be held to with the land until cut off or extinguished by the registration of the servient estate or in any other manner. An easement is cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Sec. 39 of the Land Registartion Act (Act 496).
Masongsong v. Flores 57 Phil. 243 Facts: Petitioner Alejandro Masongsong is the owner of a ed land in Manila while Respondent Victoria Flores, is the owner of an ading lot where a house has windows overlooking the ading property of Masongsong, leaving a distance of less than two meters between the two houses. Separating the two houses is public alley. The title of petitioner extends over such alley. Issue: Whether or not an alley constructed in accordance with the Revised Ordinances of the City of Manila, and open to the public, falls within the provisions of the Civil code concerning the easements of light and view inapplicable to buildings separated by a public thoroughfare. Held: The Court held that a private alley open to the public, under the circumstances of this case, falls within the exception provided by article
Civil Code of the Philippines | Property – Easement of Light and View
584 of the Civil Code to article 582 thereof, and that accordingly the plaintiff has no legal cause of action. Article 582 of the Civil Code provides that “no windows or balconies or other similar projections which directly overlook the ading property may be opened or built without leaving a distance of not less than two meters between the wall in which they are built and such ading property.” Article 584 of the Civil Code makes the provisions of article 582 inapplicable “to buildings separated by a public thoroughfare”. Article 584 must be harmonized with municipal ordinances. Severina and Flora Choco v. Santamaria 21 Phil. 132 Facts: Defendant Santamaria is in possession of a parcel of land on the corner of Calles Pescadores and P.Rada in Tondo, Manila. There he erected a house flush with the boundary line of the adjacent property; that the plaintiffs are the owners of the land on both sides of defendant’s house. Defendant made several openings and windows in the walls of the house on both sides overlooking the property of the plaintiffs Choco. Although a written protest has been made by the plaintiffs and an amicable adjustment has been suggested, the two parties failed to reach a compromise, hence, no adjustment was made on the windows. Apparently, the windows of the defendant’s building miserably failed the requisites provided by law: either the windows under the ceiling did not comply with 30cm2 requirement, or the windows only had wire screening when what is required by law is an iron grate embedded in the wall and a wire screen. The rear wall windows were 50 x 80 cm. The right wall windows were 25 x 35 cm in the 2 nd storey , and 25 x 25 cm in the 1 st storey. The other windows were 35 x 67 cm, and 75 x 90, all of which covered by wire screening only. The law provides in Article 581 of the Civil Code (article 669, New Civil Code), “the owner of a wall which is not a party wall, ading another’s estate, amy make in it windows or openings to it light at the height of the ceiling joists or immediately under the ceiling, 30cm2 , with an iron grate embedded in the wall and a wire screen.” In the instant case, the windows are in a wall not a party wall ading the Choco estate and the windows are more or less than 30cm2 and have a 11
wire screen but there does not appear to be the iron grate embedded in the wall. The Chocos files a case to close all the windows of defendant’s building. The court ruled in their favor but did not order the permanent closing of window 2, 3, 4, 5, 6, 8, 9 because only window 7 was not under the ceiling, and window 1 in the balcony of the back part of defendant’s building. Hence. This appeal. The lower court said that window 1 in the balcony overlooks Calle Padre Rada and that though the Chocos’ lot can be seen from this window, it is not contiguous to their property. Issues: (1) Whether or not window 1 should be closed. (2) Whether or not windows 2, 3, 4, 5, 6, 8, 9 should be permanently closed. Held:
(1) Yes. If it is in front of the Chocos’ lot, it is unquestionable that it directly overlooks the same; but even though it did not only a side or oblique view of the lot could be obtained from it, it could not be kept open, since between it and the Chocos’ property, there does not intervene the distance required by law- that of 2m in the 1st case, and 60 cm in the 2nd case. In reality, there is no distance at all between the said window and the Chocos’ lot because as the Supreme Court has said, the window is perpendicular to the boundary line of the said lot; therefore, its opening is a manifest violation of Art. 582 of the Civil Code (Article 670, New Civil Code) which states that: “Windows with direct views, or balconies or any similar openings projecting over the estate of the neighbor, cannot be made if there is not a distance of at least 2m between the wall in which they are built and said estate.” “Neither can side nor oblique views be opened over said property unless there is a distance of 60cm.” Hence, the defendant is ordered to close finally and forever window 1. (2) No. They cannot be permanently closed because only window 7 is not immediately under the ceiling (techos). By “techo” is understood that a part of a construction which covers the rooms under it and certainly forms
Civil Code of the Philippines | Property – Easement of Light and View
one of the essential parts of every story. A story is composed of earth, pavement and ceiling, the latter, that is, the ceiling, being part of the story that is visible to the observer situated below in the room covered by it. Consequently, every storey has a ceiling, and not, as the Chocos maintain, the upper one alone. If windows 2, 3, 4, 5, 6, 8, 9 comply with requirements of the law under Article 581 (Article 669, New Civil Code) they can be reopened. Cid v. Javier No. L-14116; January 20, 1961 Facts: Petitioner's construction of a building allegedly being made in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of Laoag, and in disregard of respondent's right to light and view. Respondents' house, as well as that of petitioner, are within their respective properties that respondents' wall stands only 50 centimeters from the boundary of the 2 lots, whereas, the wall of petitioner's building was constructed 1 meter from the boundary or 1 meter and 50 centimeters from the wall of the house of respondents. As a result, the lower court found that the eaves of the two houses overlap each other by 24 centimeters. This, the Court of Appeals declared to be violative of Ordinance No. 3, series of 1909, amending Sections 1, 5, 6, and 13 of the Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters, measured from eaves to eaves of ading buildings of strong materials. Issue: Whether or not __________ Held: It must be noted, however, that the Ordinance in question was adopted since 1909 and was, therefore, already in force at the time the house of respondents was reconstructed in 1946 after the building originally erected thereon was burned in 1942. If respondents constructed their house at least one meter from the boundary line, as petitioner has constructed hers, there would be no overlapping of the eaves and there would not be any violation of the ordinance. As things now stand, in view of the construction by the respondents, the overlapping of the eaves and the consequential violation of the ordinance can not entirely be attributed 12
to petitioner, as to require her alone to make the adjustments necessary for the observance of the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the ordinance would be exacted, the adjustments should be made not only by petitioner, but also by the respondents. There is, therefore, no reason for the continuation of the injunction. “Granting that in the instant case an easement of light and view was acquired by prescription, it was cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Sec. 39 of the Land Registration Act (Act 496).” Soriano vs Sternberg, November 18, 1920 Facts: The plaintiff desires to obtain a judicial order, to compel the defendant to close the windows in the wall of his house adjacent to the property of the plaintiff, because the wall of defendant’s house is less than 2 meters from the division line. The defendant pleads prescription and relies exclusively upon this defense. The lower court agreed with the plaintiff’s contention and ordered the windows of the defendant’s house to be closed, with cost against the defendant. Issue: Whether or not a right action to enforce Article 670 of the Civil Code may be lost by failure to prosecute within the prescriptive period fixed by the Code of Civil Procedure. Held: It should be first noted that the defendant in this case has never prohibited the plaintiff from building on his, the plaintiff’s, own land, any wall that he may desire to construct. Further, it should be noted that the offending edifice of the defendant was constructed in 1905. This was the year when the defendant violated the law. This was the date when the cause of action accrued. Nevertheless, the windows complained of were permitted to be open for thirteen years without protest. The plaintiff must consequently, by
Civil Code of the Philippines | Property – Easement of Light and View
reason of his own laches, be considered to have waived any right which he may have had to compel the windows to be closed.
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Civil Code of the Philippines | Property – Easement of Light and View
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