EASEMENT OF PARTY WALL

Category: Property, Ownership and Its Modifications

EASEMENT OF PARTY WALL

Art. 658. The easement of party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of co ownership.
(571a)

PARTY WALL DEFINED

• Wall at the dividing line of estates
• Co-ownership governs the wall, hence, the party wall is necessarily a common wall

Art. 659. The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary:
(1) In dividing walls of adjoining buildings up to the point of common elevation;
(2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands. (572)

HOW PRESUMPTION THAT A WALL IS A PARTY WALL MAY BE REBUTTED

1. Title to the contrary
2. Exterior signs to the contrary
3. Proof to the contrary

CONFLICT BETWEEN A TITLE AND AN EXTERIOR SIGN

• A title conferring ownership in one owner prevails over a mere exterior sign
  

Art. 660. It is understood that there is an exterior sign, contrary to the easement of party wall:

(1) Whenever in the dividing wall of buildings there is a window or opening;
(2) Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates;
(6) Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other;
(7) Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs. (573)

EXTERIOR SIGNS NEGATIVING THE EXISTENCE OF A PARTY WALL

• This article enumerates by illustration exterior signs rebutting the presumption of there being an easement of a party wall
  

CONFLICTING EXTERIOR SIGNS

• If one owner has signs in his favor, and some against him, they generally cancel each other, unless it can be shown from the purpose of the wall that it had been made for the exclusive benefit of one

Art. 661. Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary.

There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. (574)

PARTY DITCHES OR DRAINS

The presumption of party wall applies to ditches and drains opened between two estates

REBUTTABLE PRESUMPTION

Art. 662. The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each.

Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him. (575)

REPAIRS ON AND CONSTRUCTION OF PARTY WALL WHEN RENUNCIATION CAN BE MADE

1. The repair had already been contracted for and made
2. He still uses the wall

REQUISITES FOR THE RENUNCIATION OF THE SHARE

1. Must be total or complete
2. Must be made voluntarily and with full knowledge of the facts
3. Must be made before the expenses are incurred
4. Made with the implied condition that the other owner should make or pay for the repairs
5. Must be of both the share in the wall and share in the land, for the wall cannot be used without the land

Art. 663. If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him. (576)

DEMOLITION OF A BUILDING SUPPORTED BY THE PARTY WALL

• Indemnification must be made for damages

Art. 664. Every owner may increase the height of the party wall, doing at his own expense and paying for any damage which may be caused by the work, even though such damage be temporary. The expenses of maintaining the wall in the part newly raised or deepened at its foundation shall also be paid for by him; and, in addition, the indemnity for the increased expenses which may be necessary for the preservation of the party wall by reason of the greater height or depth which has been given it.

If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and, if for this purpose it be necessary to make it thicker, he shall give the space required from his own land. (577)

INCREASING THE HEIGHT OF THE PARTY WALL

1. Must do so at his own expense
2. Must pay the necessary damages caused, even if the damage be temporary
3. Must bear the costs of maintenance of the portion added
4. Must pay for the increased cost of preservation
5. Must reconstruct if original wall cannot bear the increased height
6. Must give the additional space necessary if wall is to be thickened

EXCLUSIVE OWNERSHIP OF THE ADDITIONS

Art. 665. The other owners who have not contributed in giving increased height, depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. (578a)

HOW THE OTHER OWNERS MAY ACQUIRE PART-OWNERSHIP IN THE ADDITIONS

• The value of the additions at the time of acquisition by the others should be paid

Art. 666. Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. (579a)