By Atty. Eduardo T. Reyes III
If there is one constant in the different iterations of the executive orders being handed down by local government units (LGUs) to adapt to the quarantine classifications which are being imposed on them by the national government every two weeks, it is for us to stay within our own household and not allow anyone else to commingle with us especially at mealtimes.
This calls to mind the old saying which states that: “strong fences make good neighbors”. For indeed, unwanted intrusions by outsiders – whether neighbors or total strangers- could easily be warded off by a good wall that encloses one’s property.
But in a country like the Philippines where people are mired in the paradox of being “litigation-conscious” (as shown by how bloated our court dockets are); and yet “anything goes” in so far as regulation (or the lack of it) of property rights are concerned, it is not uncommon for us to personally witness or hear that an adjacent owner would conveniently attach his house on the “strong fence” of his/ her neighbor without the latter’s consent. Absurdly, when this happens, one’s “good fence” will serve as a wall for his neighbor, too.
Interestingly, it bears to ask: if your neighbor constructs something on your wall without necessarily physically “intruding” into your land, would you have a legal right to complain? And what about the prevalent practice in the Philippines where an adjoining owner would construct the second or third floor of his/ her house in cantilever fashion or by way of “overhang” which interlopes into your property’s airspace although it does not touch your land at all, can you have it demolished or removed?
The answer lies in the nature of property ownership in the Philippines. The pertinent legal provision is Article 437 of the New Civil Code. It states:
“ARTICLE 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation.”
This article is traceable to the ancient doctrine known in law as “ad coelum”. Ad Coelum is a “doctrine [that] relates to the common law rule that a landlord owns everything below and above the land, up to the sky and below the earth to its core. (https://definitions.uslegal.com).
In the recent case of Diana Barber, Rex Jimeno, Jacquelyn Beado, and Rochelle Tan v. Rolando Chua (G.R. No. 205630) which came down on January 12, 2021, it was held that “A lawful owner has the right to fully enjoy possession over his entire property, not only over the land’s surface but also over the structures built thereon, including everything underneath and the airspace above it up to a reasonable height. As such, a landowner has the right to eject those who unlawfully encroach and build upon not only on the lot itself, but as well as on the structures existing on his property.”
Indeed, the property owner is entitled not only to the land itself but to everything that may be found underneath it, as well as on its surface. Save for a few exceptions that may be stated in special laws and ordinances, the ad coelum rights of a property owner stretch vertically by diving deep down to the bowels of the earth and rising up to the sky piercing through its different spheres.
Thus, once the abutting owner puts-up any structure that will hover on the surface of your property even if it does not touch the ground, that amounts to an intrusion that will be violative of your ad coelum rights.
Which leads us to the next question.
What is the proper case that should be filed when there is a breach of ad coelum rights?
Still in Diana Barber, Rex Jimeno, Jacquelyn Beado, and Rochelle Tan v. Rolando Chua (G.R. No. 205630), it was doctrinally-held that the proper case should be an ejectment action. Thus:
“This Court finds that respondent’s complaint sufficiently alleges a cause of action for forcible entry. Respondent claimed that he is the owner of a house and lot with a firewall next to Barber’s property. Further, he alleged that in building the second floor of Barber’s house, hollow blocks and iron grills were placed on top in his firewall and the dowels thereof removed without his consent. Finally, he contended that by reason of petitioners’ construction, respondent was deprived of -the possession of part of his property. From the allegations of his complaint, it is clear that he merely allowed petitioners’ construction workers to use the firewall so that they can properly lay the foundation for Barber’s second floor. He never consented to, and was surprised by, the intrusion or extension of Barber’s property on top of his firewall. These allegations clearly qualify as dispossession by stealth, which is defined as any secret, sly, or clandestine act to avoid discovery and to gain, entrance into, or to remain within residence of another without permission. X x x
That respondent’s complaint did not refer to dispossession of a parcel of land or a building does not mean that the remedy of ejectment is unavailable. In Philippine Long Distance Telephone Company v. Citi Appliance MC Corporation, the Court upheld the remedy of ejectment for dispossession of the subterranean portion of a titled property, noting that rights over lands are indivisible. The owner of a parcel of land has rights not only to the land’s surface, but also to everything underneath and the airspace above it up to a reasonable height.
By parity of reasoning, an aggrieved owner/possessor of a property can properly resort to a case for ejectment in order to remove structures affecting his right to possess the entirety of his property, including his firewall”.
While we are all navigating our way through this pandemic, mindfulness of one another’s rights could be the most humane way of living in our society today. No matter how small a patch of land we own, we have to limit our constructions and all other activities within the confines of our own property.
For all we know, this could be an inconspicuous way for humanity to survive the threat of Covid-19.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).
