| Front | Franz was the owner of Lot E which was surrounded by four (4) lots one of which - Lot C - he also owned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C. Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C. Ava cultivated Lot E and used the right of way granted by Franz. Ava later found gainful employment abroad. On her return after more than 10 years, the right of way was no longer available to her because Franz had in the meantime sold Lot C to Julia who had it fenced. Does Ava have a right to demand from Julia the activation of her right of way? Explain. (2.5%) (2010 Bar Question) b.Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, can she do that? Explain. (2.5%) (2010 Bar Question) |
| Back | a.SUGGESTED ANSWER: Yes. Ava has the right to demand from Julia the activation of the right of way, for the following reasons: 1. An easement of right of way is a real right which attaches to, and is inseparable from, the estate to which it belongs. 2. The sale of the property includes the easement or servitude, even if the deed of sale is silent on the matter. 3. The vendee of the property in which a servitude or easement exists cannot close or put up obstructions thereon to prevent the dominant estate from using it. 4. Ava’s working abroad for more than ten (10) years should not be construed as non-user, because it cannot be implied from the facts that she or those whom she left behind to cultivate the lot no longer use the right of way.Note: Since a right of way is a discontinuous easement, the period of 10 years of non-user shall be computed from the day it ceased to be used under Art. 6341(2) CC. 5. Renunciation or waiver of an easement must be specific, clear, express and made in a public instrument in accordance with Article 1358 of the New Civil Code. ANOTHER SUGGESTED ANSWER: Yes. Ava has the right to demand from Julia the activation of her right of way. A voluntary easement of right of way, like any other contract, could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. Also, like in any other contract, an easement is generally effective between parties, their heirs and assigns, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law (Unisource Commercial v. Chung, 593 SCRA 530 [2009]). b.SUGGESTED ANSWER: Yes. Ava has the option to demand a right of way on any of the remaining lots of Franz more so after Franz sold Lot C to Julia. The essential elements of a legal right of way under Article 649 and 650 of the New Civil Code are complied with. ANOTHER SUGGESTED ANSWER: Yes. Ava has the option to demand a right of way from the other lots. The law provides that whenever a piece of land acquired by sale, exchange or partition is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity (Art. 652, NCC). ALTERNATIVE ANSWER: No. There was merely a promise to Ava that a right of way shall be granted to her in Lot C if Ava purchased Lot E. The promise was not reduced into writing (Obra v. Baldria, 529 SCRA 621 [2007]). Hence, it was not or could not have been registered as to warn buyers of Lot C about the existence of the easement on the property. Not having been annotated on the TCT to Lot C, the buyer acquired Lot C free from such right of way granted to Ava. |