Right of way

LAW EACH WEEK

What is right of way?

Right of way is the right to demand that the owner of a land surrounded by lands owned by others to be allowed to pass thru the neighboring lands after payment of proper indemnity.

What are the requisites for easement on right of way?

1. Claimant must be an owner of the enclosed immovable property or has real right over such property;

2. The right of way must be the shortest way or the one which will cause the least damage to the property of the respondent;

3. There must be no adequate passage to a public highway;

4. The right of way must be absolutely necessary and not for convenience;

5. The isolation is not because of the claimant’s own act; and

6. There must be payment of proper indemnity.

What if the property is not the shortest way and will not cause the least damage to the servient estate?

The way which will cause the least damage should be used even if it will not be the shortest. In case of conflict, the principle of least prejudice overcomes the principle of shortest distance.

How much is the proper indemnity?

If the passage is continuous and permanent, then the indemnity is the value of the land occupied plus the amount of damages caused. If the passage is temporary, then the indemnity is in the payment of the damage caused.

Are there cases where there is no indemnity?

Yes, there are two instances.

1. When a piece of land is acquired by sale, exchange or partition and is surrounded by other estates of the seller, exchanger or co-owner.

2. When a piece of land is acquired by donation, and the donated land is surrounded by the estate of the donor.

Are there circumstances that extinguish the right of way?

Yes. These are:

1. The opening of a public road; or 2. Joining the dominant residence to another which has an exit to a public road.