Dear Atty. Peachy,
My wife and I bought two parcels of land that are adjacent to each other three years ago. One of the properties is located in front of the other and provided sole access to the road. Thus, my wife and I caused the annotation on the Transfer Certificate of Title of the property in front of an easement of right of way in favor of the property at the back. A year, thereafter, or two years ago, we sold the property at the back to a friend who eventually sold it to a couple. The couple were issued a TCT which bore the same annotation as those in the previous titles. They, however, refused to recognize the annotated easement of right of way and enclosed their property to prevent us from accessing the road through it. They claim that no easement of right of way was constituted on the property in front which they now own as it was imposed when the front and back properties only had one owner, contrary to Article 613 of the Civil Code which required two distinct owners. They also claim that there are other accesses to the road and that if we want an easement over their property, they should be indemnified. Are their claims correct? What is our recourse?
Joseph
*****
Dear Joseph,
You may file an action for Specific Performance to provide you a right of way to access the road through the property of the spouses. Article 624 provides:
“The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons.”
Article 624 applies in case one person who owns two properties established an apparent sign of an easement between them. When the ownership of either property is transferred to another, the existence of the apparent sign of easement shall be considered as a title over an easement, unless the contrary is provided in the deed of transfer, or if the apparent sign is removed before the deed of transfer’s execution. When the new owner made no stipulation contrary to the apparent easement, they are deemed to have agreed to its continuation. The created easement is considered accepted and subsisting if no issues were raised against it or against the matter by which it is used.
You and your wife created an easement on the front property when you used a portion thereof to give your back-property access to the road and had it annotated on the title of the front property. When your friend acquired the front property and did not raise any objection against the easement and annotation, the easement subsisted. Despite awareness of such easement, the spouses still purchased the front property and did not object thereto at the time of transfer. Their title bore the same annotation as that of your previous titles. A valid easement of right of way was constituted on the front property now owned by them.
Atty. Peachy Selda-Gregorio