Impaired

The person in whose favor an easement is granted (or the dominant estate) cannot violate the rights of the person granting the easement (servient estate). In other words it cannot commit acts of impairment of the easement. This is illustrated in this case of a condominium developer (GRC) and its owner (CGCC).

GRC is the developer of a ten storey building in Makati City. On April 26, 1977 GRC executed a Master Deed and Declaration of Restrictions which constituted said building into a condominium project and incorporated CGCC to manage the condominium and hold title to common areas. Title to the land on which the condominium stands was transferred to CGCC but GRC retained ownership of the two level penthouse unit on the 9th and 10th floors. GRC and its directors, officers and assigns likewise controlled the management and administration of the condominium project until 1995 when CGCC and its directors took over.

Upon taking over, CGCC discovered GRC enclosed and used the common area fronting the two elevators on the 9th floor as storage room and constructed a permanent structure which encroached 68.71 square meters of the roof deck and leased it as office space. Thus in 1998, CGCC filed a complaint before the HLURB seeking to compel GRC to vacate the common areas it allegedly encroached on and to remove the structures it built thereon.

For its part GRC averred that it was granted an exclusive easement for the exclusive use of the portion roof deck’s limited common area as owner of the Penthouse unit pursuant to Section 4 of the Master Deed. Hence since the said limited common area is for its exclusive use, building structures thereon and leasing the same to third persons do not impair the subject easement. Was GRC correct?

No. GRC has no right to erect an office structure on the limited common area despite its exclusive right to use the same. Such act not only impairs the easement but also illegally altered the condominium plan in violation of PD 957 or the “Subdivision and Condominium Buyers’ Protective Decree” as it was done without the permission of HLURB and consent of the homeowners’ association or majority of the buyers.

There is impairment of the easement if the owner of the dominant estate violates the following prescribed restrictions on its rights over the servient estate, to wit: (1) it can only exercise rights necessary for the use of the easement; (2) it cannot use the easement except for the benefit of the immovable property originally contemplated; (3) it cannot exercise the easement in any other manner than that previously established; (4) it cannot construct anything which is not necessary for the use and preservation of the easement; (5) it cannot alter or make the easement more burdensome; (6) it must notify the servient estate owner of its intention to make the necessary works thereon: and (7) it should choose the most convenient time and manner to build said works so as to cause least inconvenience to the owner of the servient estate.

In this case GRC’s acts show that it breached the following restrictions: first, the construction and lease of the structure were neither necessary for the use or preservation of the deck’s limited area; second the weight of the structure increased the strain on the condominium’s foundation and on the roof deck’s common limited area, making the easement more burdensome and adding the necessary safety risk to all condominium unit owners; and lastly the construction of said structure clearly went beyond the intendment of the easement since it illegally altered the approved condominium project plan and violated Section 4 of the Master Deed and declaration of Restrictions (Goldcrest Realty Corp. vs. Cypress Gardens Condominium Corp., G.R. 171072, April 7, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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