Letter:

Dear Attorney,

I am writing to seek your guidance regarding a matter involving a right of way that presently exists on a parcel of land I am considering for development. Specifically, I wish to clarify the permissible uses and structural modifications that can be introduced over or adjacent to a right of way established in accordance with Philippine law. Can one lawfully construct over a right of way—such as building a structure above it—without violating legal obligations and the rights of the party benefiting from that easement? Additionally, can a right of way be configured in such a manner as to only allow vehicular passage through an underpass rather than providing a surface-level route?

I hope you can provide detailed, authoritative guidance grounded in the applicable laws, regulations, and jurisprudence of the Philippines. Your expert opinion will be instrumental in helping me determine how to plan the property’s development.

Thank you very much for your time and expertise.

Sincerely,
A Concerned Landowner

Comprehensive Legal Article on Philippine Law Pertaining to Building Over Rights of Way and the Nature of Easements for Vehicular Underpasses

Introduction

In the Philippine context, the concept of a right of way, or “easement of right of way,” is well entrenched in civil law, specifically under the Civil Code of the Philippines (Republic Act No. 386). This legal concept ensures that a property, which might otherwise be landlocked or inaccessible, can gain necessary ingress and egress through an adjacent estate. The general principle is that a right of way must be established with due regard to necessity, practicality, and the rights of the servient estate—i.e., the property that is burdened by the easement. At the same time, the dominant estate—the property for whose benefit the easement is granted—should ensure that the servient owner’s rights are not unduly restricted.

This article aims to provide a meticulous and comprehensive examination of whether building over a right of way is permissible, as well as whether a right of way can be structured merely as an underpass for vehicular use. It will cover the sources of law, including the Civil Code, pertinent jurisprudence, relevant administrative regulations, and best practices in real estate development and property law in the Philippines.

Defining the Right of Way

Under Philippine law, an easement of right of way is created either by law (legal easements) or by agreement (voluntary easements) between property owners. The Civil Code, particularly Articles 649 to 657, governs the conditions, requirements, and principles surrounding the establishment, scope, modification, and extinguishment of such easements. Generally, a right of way includes the right of the dominant estate to pass through the servient estate. This passage may be for various purposes: pedestrian use, vehicular use, or transport of goods. It may be limited or broad depending on what was agreed upon or what the court mandated if the easement was established judicially.

Nature and Scope of the Easement

A key principle is that a right of way must be established with the least burden on the servient estate. According to Article 650 of the Civil Code, the easement of right of way shall be established at the point least prejudicial to the servient estate and, when demanded by its owner, where the distance from the dominant property to the public highway may be shortest. Jurisprudence has reinforced the principle that the right of way should not unnecessarily hamper the servient owner's rights to use and enjoy their property. The essence is a balance: the dominant owner needs access, and the servient owner should not be overly inconvenienced.

Building Over an Existing Right of Way

One question frequently arises in real estate practice: Can the owner of the servient estate build over the right of way, effectively constructing something on top of it, as long as the function of the passage is not impaired?

Legal Considerations:
The Civil Code does not explicitly prohibit building over a right of way. However, the extent to which such construction is permissible depends on whether it impairs or obstructs the intended use of the easement. An easement grants the dominant estate the right to pass; if constructing over it still allows passage consistent with the original terms, it may be permissible.
Jurisprudential Guidance:
Philippine case law tends to focus on whether the servient estate owner’s actions unduly impede the rights granted by the easement. Courts have looked at factual circumstances: Is the easement’s purpose compromised? If the right of way was established to allow vehicles easy access, placing a structure above it that reduces clearance or complicates ingress and egress might not be permissible. Conversely, if the structure (like a building overhang, an elevated walkway, or a bridge) does not obstruct the path and the dominant estate can still enjoy unimpeded passage, such construction could be allowed.
Practical Requirements:
When considering building over a right of way, the servient owner must take into account building codes, zoning ordinances, and local engineering standards. Even if the civil law principle allows for non-intrusive constructions, the local government unit (LGU) may have ordinances regulating vertical clearances, structural integrity, and safety measures that must be followed. Additionally, any construction that might temporarily obstruct the easement’s use during the building phase must be managed carefully, providing temporary alternative access if required.
Contractual Stipulations:
If the right of way was established by an agreement or contract, the terms of that contract are crucial. The parties might have expressly prohibited or limited construction above the easement. Failing any such stipulation, the general legal principle of balancing interests applies.

In essence, building over a right of way is not categorically prohibited as long as the core function—providing access to the dominant estate—is not hindered. The controlling question is whether the character and utility of the easement remain intact.

Right of Way Configured as an Underpass for Vehicles

The second aspect of the query is whether a right of way can be structured as an underpass dedicated to vehicular traffic. This question touches on the form and nature of easements. Typically, a right of way is conceptualized as a surface passage: a road or path from the dominant estate to a public road. But nothing in the law inherently forbids configuring the easement in a manner that involves a sub-surface or tunnel-like structure, provided that the fundamental objective—ensuring access—is achieved.

Legal Framework:
The Civil Code and related statutes do not specify the exact spatial configuration an easement must take. The law’s silence suggests flexibility. A right of way could be vertical, horizontal, or even subterranean, as long as it meets the access needs of the dominant estate and does not impose an unreasonable burden on the servient estate.
Underground and Elevated Easements:
In other jurisdictions, easements sometimes allow for utilities and access routes to run underground. While Philippine jurisprudence on underground vehicular rights of way is not extensively developed, the principle that an easement’s form should correspond to necessity and practicality might support such arrangements. If constructing an underpass is feasible, safe, and agreeable to both parties—or if mandated by a court under exceptional circumstances—there appears no fundamental legal impediment.
Engineering and Safety Regulations:
Any plan to create an underpass or subterranean route must comply with building codes, engineering standards, safety guidelines, and environmental regulations. The servient owner must ensure that the structural integrity of the surrounding land is maintained, that proper drainage is in place, and that the design adheres to any relevant geological and safety considerations.
Negotiated Terms:
If the easement is voluntarily established through a deed of easement, the parties involved have considerable freedom to define the arrangement’s specifics. They could, for instance, agree that the right of way will be a paved tunnel beneath a portion of the servient property, reserved solely for vehicular access. As long as the stipulations do not violate mandatory legal norms and public policy, the arrangement should be legally sound.
Judicial Intervention:
In cases where parties cannot agree, the court may be called upon to determine the best configuration of the right of way. The court’s paramount consideration would be the necessity of the easement and the least prejudice to the servient estate. If an underpass configuration, while more complex, reduces surface-level disruption and still fulfills access requirements, a court might find it acceptable.

Regulatory Framework and Local Government Involvement

Beyond the Civil Code’s general principles, other Philippine laws and regulations must be considered:

Local Government Code (Republic Act No. 7160):
LGUs have the authority to regulate land use and development within their jurisdiction. Zoning ordinances, building permits, excavation permits, and the necessary approvals from city or municipal engineering departments may influence whether constructing an underpass or building over the right of way is feasible.
National Building Code of the Philippines (Presidential Decree No. 1096):
The National Building Code and its implementing rules and regulations provide guidelines for construction safety, structural standards, and clearances. If the servient owner seeks to build over the easement, these regulations will determine what structural modifications are permitted without endangering the safety and utility of the right of way. Similarly, an underpass for vehicles would be subject to stringent standards related to ventilation, lighting, drainage, and structural soundness.
Environmental Regulations:
If the proposed construction—be it over or beneath—affects protected areas, watercourses, or environmentally sensitive zones, relevant environmental laws and regulations (e.g., Presidential Decree No. 1586 on Environmental Impact Statements) must be observed. Undertaking an environmental impact assessment may be necessary.
Consultation with the Dominant Estate Holder:
While not strictly mandated by law if the configuration was pre-agreed, maintaining open communication with the dominant estate owner helps avoid disputes. If the dominant estate owner perceives the new construction as an encroachment or hindrance, conflicts may arise, potentially leading to litigation. Ensuring mutual agreement, or at least providing formal notice, can prevent misunderstandings.

Jurisprudential Insights

Philippine jurisprudence on easements emphasizes two key points:

Necessity and Least Prejudice:
Courts consistently hold that the dominant estate has the right to a passable easement that accomplishes its purpose. Conversely, the servient estate retains the right to minimize the encumbrance’s impact. Any structural modification—such as building above the easement—must be measured against whether it impedes access or significantly reduces usability.
Flexibility and Good Faith:
The Supreme Court has underscored that good faith negotiations and adherence to the spirit of the law are paramount. If an innovative solution, like an underpass, provides the required access while minimizing surface-level disruption, this might be favored as long as it does not violate the parties’ agreements or legal principles.

Practical Steps for Property Owners and Developers

For property owners or developers contemplating the construction of a building or structure over an existing right of way, or the establishment of an underpass right of way, the following steps are advisable:

Review the Original Grant of Easement:
Examine the terms under which the right of way was created. Look for any restrictions or specifications about the easement’s nature, dimensions, height clearance, or location.
Seek Professional Advice:
Consult with lawyers who specialize in real estate law, as well as with civil engineers and architects, to assess the feasibility of building over or tunneling under the easement. Their expertise will help ensure compliance with legal and technical standards.
Obtain Necessary Permits and Clearances:
Before implementing any construction that modifies the nature of the easement, secure all required permits from the LGU, and if necessary, from relevant national agencies. Doing so establishes that your project meets public safety, zoning, and structural integrity standards.
Negotiate with the Dominant Estate Owner:
If your actions might alter the ease of passage, it is wise to discuss these plans with the dominant estate owner. Providing assurances or alternative temporary routes during construction could help prevent future disputes.
Document Agreements and Changes:
If both parties agree to modify the easement to an underpass arrangement or allow construction over it, such modifications should be memorialized in a written agreement. This document should be notarized and, where appropriate, annotated on the property’s title to reflect the changed conditions of the easement.

Conclusion

Under Philippine law, while there is no absolute prohibition against building over an existing right of way, any such construction must not impede or diminish the easement’s primary function: ensuring adequate access for the dominant estate. Similarly, the law does not bar configuring a right of way as an underpass reserved for vehicular passage. Such arrangements hinge on maintaining the delicate balance of interests between the dominant and servient estate owners, adherence to building codes and regulations, and, ideally, mutual agreement.

In all cases, the paramount considerations remain necessity, reasonableness, and the principle of least prejudice to the servient estate. The outcome in any given scenario will depend on a careful assessment of the facts, a thorough understanding of the terms of the easement, compliance with regulatory frameworks, and prudent legal counsel. In this regard, seeking professional advice to navigate the complex interplay of property rights, contractual obligations, and regulatory compliance is essential to making informed decisions that respect both the letter and spirit of Philippine law.