Explanation of Article 701
The article refers to the situation where an easement right is established by the owner's allocation; if the owner owns two separate properties and establishes an easement right on one to serve the other property, the original owner has allocated an easement right on this property. If there is a visible sign of this service, the easement right transfers if the ownership of the two properties or one of them changes so that the properties become owned by different owners while remaining in this state, thereby creating an easement right. The reason for the creation of the easement right is the implicit agreement between the different owners of the two properties, and the implicit agreement is nothing but a contract, i.e., a legal act. Thus, the easement that arose from the original owner's allocation was established by a legal act. An example of this is when a person owns two adjacent lands and makes a visible passage in one of them leading to the other; the owner has allocated the land with the passage to serve the other land. If the first land is sold while in this state relative to the other land, the buyer is implicitly considered to have agreed to the existence of the easement right of passage.
It is clear from this that an easement by the owner's allocation requires four conditions to arise:
- The first condition: The existence of two properties owned by one owner.
- The second condition: The owner makes one of the properties serve the other, excluding cases where the person who makes one property serve the other is not the owner of the properties or their representative, such as when a tenant of the properties establishes it.
- The third condition: The easement must be visible, meaning it has a visible sign, like a road paved to be a passage for the other property, or a canal dug for irrigation water to flow to the other property. The road and canal are visible signs of the easement, which can be acquired by the original owner's allocation as an implicit agreement. This excludes cases where the easement is not visible, meaning it has no external sign indicating its existence, such as a negative easement that merely restricts the owner of the servient property from performing certain actions on their property, like an easement prohibiting building, or raising a building beyond a certain height, or viewing. These negative easements cannot be acquired by the original owner's allocation because their invisibility precludes the possibility of an implicit agreement.
- The fourth condition: The properties become owned by different owners without changing their condition, whether by transferring them or one of them to other owners.
This excludes the assumption that a person owns two separate properties and makes one serve the other, and the easement is visible; this is merely an exercise of the right of ownership. The article establishes the principle of the creation of an easement right by the original owner's allocation according to the previous conditions, and that the owner of the servient property only needs to prove the existence of visible signs indicating the easement to be entitled to this easement.
The article concludes by stating that the ruling it contains applies in the absence of an explicit or implicit agreement to the contrary; for example, if there is an agreement in the legal act document that grants the right or if custom dictates that the visible sign is not considered, and the buyer owns the property free of the easement right, as easement rights are subject to the rules established in their creation document, the prevailing custom of the area, and the provisions contained in this section.
Related To
Article 701
If the owner of two separate real properties creates an apparent easement between such properties, the right of easement shall remain effective if one or both of the properties are transferred to other owners and their condition is unchanged, unless agreed otherwise.