By Obiter07
You wake up in the morning, always looking forward to watching the sun rise from your window. Over time you take this for granted, barely appreciating the subdued light coming through the blinds. But just wait until your next door neighbor builds his new three story townhouse and blocks your entire view altogether.
Did you have the habit of stepping out onto your porch or balcony in order to stretch your limbs? Then suddenly, you find yourself being watched by your neighbor who has conveniently added a new window in the wall separating your properties?
Are you now feeling deprived of something you always expected and wanted to be where it always had been? Don’t fret yet. You might just have a recourse in law to protect these easements.
Easements
In fine, an easement is an encumbrance imposed on an immovable, such as real property, for the benefit of another immovable belonging to a different owner. The immovable in whose favor the easement is established is called the dominant estate and the one subject to the same, the servient estate (Art. 613, New Civil Code). If it sounds a bit perverted, rest assured it is all legal.
A positive easement imposes an obligation on the owner of the servient estate to allow something to be done or of doing it himself while a negative easement prohibits the servient owner from something he could lawfully do if not for the easement (Art. 616). It sounds dirtier than what it really is. Everything to be done (or not done) here is with respect to the property and not any of the owners.
Easements of Light and View
With respect to your right to a view of your choosing, this has been classified by the Supreme Court as a “negative” easement. CID vs. JAVIER, et al. [G.R. No. L-14116. June 30, 1960.] And you can invoke this easement only by means of a formal act. This means that you have to forbid the servient owner, by means of an instrument acknowledged before the notary public, from executing an act which would be lawful if not for the easement (Art. 621).
Say you have an existing window with a view. In order to protect it, you have to execute a notarial instrument where you forbid your neighbor from obstructing it. A verbal prohibition does not suffice. (CID vs. Javier, Ibid.) So it doesn’t matter if you’ve had that view for years and years. You have to formalize your claim, otherwise you lose it.
What if your neighbor decides to sell portions of property to other parties? It shouldn’t matter since easements are indivisible and each of the owners must bear it on the part which corresponds to him. And if you divide your own property, you and your transferees can still enjoy the easement as long as there no change in its place of use nor is it made more burdensome. (Art. 618 )
Party Walls and Windows
Window openings are another matter specially when what separates your property from another is a “party wall.” No, this does not mean that this is a space where you can party. A “party wall” is a specie of easement. A party wall is something co-owned by the parties (Art. 658). And this easement is presumed unless there is a title or exterior sign, or proof to the contrary in cases of the following: “(1) In dividing walls of adjoining buildings up to the point of common elevation; (2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities; (3) In fences, walls and live hedges dividing rural lands. (572)” (Art. 659) So in the absence of contrary proof, any dividing wall is considered yours and your neighbor’s.
If you wish to claim that there is no party wall and that the structure is your own, it would serve you well to have the following exterior signs which are indicative of the ownership:
“(1) Whenever in the dividing wall of buildings there is a window or opening;
(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other;
(7) Whenever lands enclosed by fences or live hedges adjoin others which are not inclosed. xxx” (Art. 660)
If it is a party wall which separates you and your neighbor’s property, he cannot open a window or aperture of any kind without your consent. “No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (580) (Art. 667).”
An easement of light and view can be acquired through prescription (or the lapse of time) counted from the time of the opening of a window through a party wall. So if it’s a window that you do not like, you must act promptly to have it closed. And if the window is opened at the wall of a dominant estate, prescription runs from the time the proprietor of the adjoining property is forbidden to block it (Art. 668). Again, it appears that this has to be through a notarial prohibition.
Allowable views
Assuming you made no such prohibition, a direct view towards your property can be made only if a distance of two meters is provided for. “No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining 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. The nonobservance of these distances does not give rise to prescription (582a)” (Art. 670).
And if you have acquired a direct view over an adjoining property, the owner of the servient estate can still build on it provided that this is at not less than 3 meters distance (Art. 673).
In the end, it may all just depend on whether or not it’s a view that you cannot do without: if it’s a neighbor that you want to see everyday, or whom you want to see you everyday too.
