Are you entitled to demand right of way?

Published in Daily Tribune on January 12, 2023
by: Henio M. Pajarito

The issue of the right of way is a common legal problem for people living in urban areas where lots are very close to each other. Fortunately, the law grants owners of estates the right to demand access to roads and highways through the easement of right of way.

Article 649 of the New Civil Code 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 an adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of property indemnity.

Easement of the right of way may be acquired in two modes: (1) by voluntary title which is constituted by agreement of the parties and does not require that the dominant estate be isolated and without an adequate outlet to a public highway; and (2) by compulsory title which can be demanded if an estate is so isolated and without an adequate outlet to a public highway.

Anent compulsory right of way can only be demanded when the requisites laid down by law are first complied with. In AMA Land Inc. v. Wack-Wack Residents Association Inc. (G.R. 202342, 19 July 2017), the Supreme Court ruled that an owner of the dominant estate may validly claim against the owner of the servient estate when the following are established: (1) the dominant estate is surrounded by other immovables; (2) it is without an adequate outlet to a public highway; (3) proper indemnity has been paid; (4) the isolation was not due to the proprietor of the dominant estate’s own acts; (5) the right of way claimed is at a point least prejudicial to the servient estate; and (6) the right of way must be absolutely necessary for the normal enjoyment of the dominant estate by its owner.

In determining whether the easement of right of way will be granted, the Supreme Court uses the Adequacy Test. In Dichoso v. Marcos (G.R. 180282, 11 April 2011), it was held that the true standard for the grant of the legal right of easement of right of way is adequacy. If there is already an existing outlet from the dominant estate to a public highway, even if inconvenient, then the need to open another is unjustified. Furthermore, in Reyes v. Spouses Ramos (G.R. 194488, 11 February 2015), the Supreme Court explained that the convenience of the dominant estate’s owner is not the basis for granting an easement of right of way, especially if the owner’s needs may be satisfied without imposing the easement.

Two criteria must be considered in choosing the outlet to access a public highway: (1) it must be least prejudicial to the servient estate, and (2) it must be the shortest distance to the highway.
If these two circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. Moreover, the width of the easement of the right of way shall be that which is sufficient for the needs of the dominant estate and may accordingly be modified from time to time depending upon the reasonable needs of the dominant estate.

Read more: https://tribune.net.ph/2023/01/12/are-you-entitled-to-demand-right-of-way/

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