Legal Consequences of Constructing a Building Over a Right of Way Easement Where Reasonable Access and Convenient Use of the Servient Passage Remain Unobstructed
In a dispute concerning a right of way easement, Mr. Daeng and Mr. Dam entered into an out-of-court compromise agreement whereby Mr. Dam consented to allow Mr. Daeng to pass through his land. Subsequently, Mr. Dam constructed a row-building structure over the easement area; however, he left a five-meter-wide concrete passage beneath the structure, allowing large trucks and vehicles to pass in and out conveniently.
Under such circumstances, Mr. Daeng would not be entitled to demand demolition of the structure merely because it was erected over the servient land subject to the easement. Since the exercise of the right of way remains reasonably convenient and has not been materially obstructed or impaired, there is no sufficient legal ground requiring removal of the building. Furthermore, Section 1391 of the Civil and Commercial Code does not prohibit the owner of the servient property from constructing buildings over the easement area, provided that the easement holder’s use is not substantially hindered.