The Disputed Easement and the Running of the Preclusive Period
In 2015, Marin sold a landlocked plot (plot B) to his cousin Petar while retaining the surrounding plot A. The notarial deed expressly granted Petar a right of way across plot A to reach the public road, "for as long as plot B remains without other access." In 2019 Petar began using a second, shorter route across plot A that was never mentioned in the deed. In 2020 Marin built a fence blocking the deed route but leaving the informal route passable. Petar sued in 2023 seeking restoration of the deed route. Marin argues the claim is time-barred and that in any event the informal route satisfies Petar's access needs. Separately, Petar's neighbor Ivan claims a prescriptive right of way over plot B, having crossed it openly since 2008.
1. Is Petar's 2023 claim to restore the deed route time-barred? Identify the applicable limitation period and the moment it begins to run.
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The claim is not time-barred. A contractual right of way is a praedial servitude, and the action to protect it (actio confessoria) is subject to the general 5-year limitation period for periodic or continuing claims, running from the moment the owner obstructs the right. The obstruction occurred in 2020 when Marin built the fence. Counting five years from that date, the period expires in 2025, so the 2023 filing is timely.
A critical distinction: acquisitive prescription (10 years with just title, or 10 years under the short-term rule, longer under the general rule) is what creates a servitude; the limitation period extinguishes an existing claim. Petar's right arises from the notarial deed, not from prescription, so the prescriptive periods for acquiring a servitude are irrelevant here. Marin's conflation of the two doctrines is the trap.
2. Does the availability of the informal route defeat Petar's claim?
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No. The scope of the servitude is fixed by the constitutive deed, which granted a specific route. The servitude's content and mode of exercise are determined by title, not by the grantor's later unilateral preference. Marin cannot substitute a different route merely because it is more convenient for him. Under the rules on exercise of servitudes, the burdened owner may not relocate the route unless the title or statute permits it, and a change of route requires the dominant owner's consent or a judicial determination that the original route has become disproportionately burdensome.
The informal route's existence is relevant only to a claim of extinguishment by non-use (typically 10 years of continuous non-exercise) or to a defense that the deed route has become objectively impossible. Neither is established: the deed route was used until 2020, and the fence, not nature, made it impassable. Marin's own act cannot generate the impossibility he invokes.
3. Evaluate Ivan's prescriptive claim over plot B.
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Ivan's claim requires proof of continuous, uninterrupted, open, peaceful, and unequivocal use for the prescriptive period. Use since 2008 gives roughly 15 years by 2023. Whether that suffices depends on the period applied: under the short-term rule, 10 years with just title and good faith; under the general rule, 10 years without title. Either way, 15 years exceeds the threshold.
The weaknesses are evidentiary. Openness is satisfied if Petar knew or should have known. Peacefulness fails if the use was contested at any point; a single successful challenge interrupts prescription. Unequivocality is the harder element: a route used sporadically or by tolerance is not prescriptive. Ivan must show use as of right, not by permission. If Petar merely tolerated the crossings, no servitude arises, because tolerance never matures into a right. The burden of proving each element lies on Ivan.