DISCLAIMER: This article does not create an attorney-client relationship between the author and the reader.  The answer of the author on the issue is just an expression of his general opinion based on Philippine law and hence does not constitute legal advice.

In one of my visits to my hometown, my brother and my cousin-in-law had questions about “right of way”.  Allow me to recap the issues raised and my discussion.

A “right of way” is a privilege to pass over another’s property.  There are three common issues when it comes to right of way, to wit:

1. Who can demand this privilege?
2. Is it free?
3. What is the size?

A person (or a group), by virtue of a real right, is entitled to demand the privilege of right of way against the owner of another property if the following requisites are present (Sps. Larry and Rosarita Williams v. Rainero A. Zerda, G.R. No. 207146, March 15, 2017):

1)    The property of the person demanding the privilege is surrounded by other immovable properties without an adequate way to a public highway or road.  (In other words, his property is isolated.)

2)    The isolation is not due to the fault of the person demanding the privilege.

3)    Where the right of way may be established on any of the surrounding properties, the one where the shortest to the highway or road and will cause the least damage should be chosen.  (If these two circumstances do not concur in one property, the way which will cause the least damage should be chosen, even if this is not the shortest.)

4)    And finally and most importantly (just my personal opinion😁), the person demanding the privilege has paid indemnity or compensation to the owner of the property demanded as right of way.  (This indemnity or compensation can validly be waived.)

The first and the second issues have been answered by the above requisites.

How about the size of the right of way?  Is there a minimum size? Article 651 of the Civil Code finds application to these questions.  Article 651 states “The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate and may accordingly be changed from time to time”.   Following this provision, the person demanding the privilege of right of way is not permitted to demand more than what is sufficient for his needs (unless of course, the owner of the other property agrees to allow more than what is sufficient).

(July 19, 2024)