A public easement is a type of encumbrance on a land plot. Its main feature is that the decision on its imposition is made by state authorities, but the plot is not withdrawn in favor of the state. Let us consider in more detail the distinguishing features of encumbrances on the earth and the procedure for establishing easement.
Types of encumbrance
According to the RF Labor Code and Art. 23 identified several types of encumbrance: private and public easement. Private encumbrance is understood as the possibility of the owner of one land plot to demand from the owner of another granting the right of limited use of the neighboring plot. This right may be used for:
- the construction of the passage or driveway;
- power line laying;
- water pipe laying, etc.
Public encumbrance is made in the interests of society and the authorities. Installed such an easement can be for the following needs:
- for passage or passage through the land plot;
- for land use;
- for pasture construction;
- for mowing;
- for hunting and fishing;
- for research works, etc.
More on public easement
Under the easement is understood the voluntary transfer to another person of certain rights to the land that is at the disposal of any person. A public easement is a subspecies of easement that is imposed on the earth. A feature of this type of encumbrance is that it can be established exclusively by authorities, but the site itself is not taken in favor of the state.
It turns out that a public easement as a concept combines such characteristics:
- subjective law;
- encumbrance method;
- unlimited or temporary execution.
Public servitude in cities does not include a territory that is used for public needs:
- power line;
- supports for power lines;
- gas pipes connected to the sections;
- water pipes;
- sewage system.
Including under power lines construction of houses, construction of plantings is unacceptable, and in places where pipes are laid, you can not go down to the meter of the laid communications.
Grounds for education
A public easement is established for use by citizens on the following grounds:
- Signing a document of agreement of the parties (directly to the land owner and another person or persons).
- The issuance of a court order (necessary if a public burden is inevitable, and its need is obvious, and the owner has not made any concessions).
- There is a will.
When a contract is drawn up, one of the parties can be either one person or several persons. In addition, it can be not only an individual or legal entity, a state or municipality can act as a party. Be that as it may, the agreement must be in writing and certified by signatures. This agreement must be registered, and then land surveying should be carried out so that further confusion does not arise with the borders of the territories. In addition to everything, you can appreciate the property that falls under the public land easement.
Statement
A public easement is established through several successive steps. It all starts with the submission of an application with the corresponding requirement. This process can be initiated either by an individual or legal entity, or by municipal or state authorities.
When writing an application, you must specify:
- name of the object, its actual address;
- purpose of imposing an encumbrance;
- term for imposing a public easement;
- complete data on the owner of the land allotment and co-owners, if any;
- information about the person (s) for whom the encumbrance is established.
If the application is submitted by the local government, then you need to contact the administration of the municipality to write it. If the applicant is another entity, then you must contact the territorial body for land issues. Since the easement is an encumbrance of the land allotment and its owner, it is necessary to draw up an individual regulatory act. Thus, a public easement is established by a legal act.
Decision-making
After the application is submitted, it will be considered in a timely manner. Everything will depend on who the subject is and in which region the process is taking place. Each region draws up its territorial acts with individual requirements and rules. The only exception is federal settlements.
The application is considered at a special hearing, after which a decision is made. The regulated form of such meetings is not legally established; therefore, this hearing may be equated to a civil assembly. A meeting held must be recorded. The document shall indicate the agenda, the decision made, the number of participants. Although the RF Labor Code does not oblige to collect such hearings, it is easier to make a decision on them, and there is also something to refer to in the future if disputes arise.
The establishment of a public easement is fixed by drawing up a contract or normative act, where information about the object must be indicated: cadastral number, location, total area, etc. The easement will begin to work after state registration, for which it is necessary to collect the following documents:
- application for registration of encumbrance;
- state duty receipt;
- normative act or agreement on encumbrance;
- identity document of the applicant or documents of an agent;
- land plot on which the easement will be imposed.
Land surveying
A public easement is a type of encumbrance that must necessarily be reflected in the cadastral plan. In order for this information to be reflected, it is necessary to conduct land surveying. In other words, it should establish the boundaries of easement on the land allotment. And what boundaries of the burden should be displayed when surveying - planned or already established? If the land allotment is registered and put on cadastral registration, then you should wait for the normative act from state bodies on the establishment of easement and then you can conduct a land survey. If the land allotment has not been registered, then you will have to do double work. First, land surveying during registration of the allotment, and then surveying when establishing an encumbrance.
A logical question arises: is it possible to do everything in one go, if the landowner knows exactly where the easement will be located? On the one hand, the project of establishing the boundaries of land cannot be called the main and legal. He either forms, taking into account the requirements, proposals on the boundaries of the land allotment, or fixes the state of the existing allotment. But then, in terms of land surveying, public law servitudes should be reflected (that is, they already have the necessary documents). But on the other hand, the code of urban planning does not prohibit solving all issues simultaneously. And given the complexity of the procedure for processing an encumbrance, it is better to first obtain a legal act on the easement, and then conduct a land survey.
Contract
The next step, which determines the procedure for establishing a public easement, is the conclusion of a contract. It must be drawn up correctly and include the following mandatory points:
- The subject of encumbrance, that is, which property will be subject to easement.
- Who acts as parties to the agreement and will have the right to use the allotment.
- A detailed description of the land plot (its borders, location plan, area, what objects are located on it, including vegetation, what is the value of the object, cadastral information).
- The intended purpose of the land plot, the conditions for using this plot (what are the restrictions and at what time).
- The term for establishing easement.
- If there are conditions under which the contract can be terminated prematurely, they must be indicated.
After drawing up and signing the agreement, it must be certified in a notary's office and registered in the state register. These procedures are mandatory, otherwise the public easement will not be considered legal. Particular attention should be paid to the cadastral plan of the site. If it is damaged or lost, it must be restored as soon as possible.
Valuation and cost
A public easement is an encumbrance on the land, therefore, the owner of the allotment has the right to establish the amount of the fee for using his plot, referring to possible losses due to the establishment of the encumbrance. This clause should also be spelled out in the agreement and considered quite carefully, because initially it may seem that losses cannot be taken from anywhere, but in reality it will turn out the other way round.
In the amount for the easement, the owner of the site can include, for example, the cost of security services and maintaining the land in proper form, especially if it is public easements in cities, and their purpose is to travel. If, after the establishment of the easement, it became clear that the set price does not correspond to the actual costs, it is possible, referring to the RF Labor Code, to amend the terms of the agreement by making an addition to it. The weight basis for writing an addendum to the contract is:
- Change user activities.
- The user's right has been extended or limited in the same territory.
- Amending a regulatory act (provided that one of the parties is a government agency).
- Review of the agreement by both parties and making appropriate adjustments.
- Judgment.
registration
As mentioned above, registration of a public burden is a mandatory procedure and does not provide for any exceptions. Documents can be registered by justice bodies that enter data into a single register of real estate. The registration application must be submitted by the party in whose favor this burden is imposed. The public easement is established on the basis of a regulatory act, which should be attached to the application. In addition, applications from the municipality or other government agency may be needed.
After information about the burden is entered into the register, it shall enter into force. If the easement is not imposed on the entire land plot, but only on its part, then the above documents are accompanied by a schematic plan with dividing the borders and marks of the share of real estate that is encumbered. If several burdens should be registered, then each of them will be registered separately in the prescribed manner.
Given the provisions of the Tax Code of the Russian Federation, we can conclude that the process of registering a public easement is paid. Therefore, its participant will need to pay a state fee. Its size depends on who draws up the burden and in which region. If this is an individual, then the fee will be 500 rubles, if a legal entity - then 2,000 rubles. Each subsequent amendment is also subject to registration and is subject to a fee, but in smaller amounts. An individual will pay 100 rubles, a legal entity - 300, and a municipality - only 50 rubles.
When does encumbrance cease?
Legislatively established that a public easement can not always be indefinite, it can be established for a certain period. If the agreement nevertheless stated that the encumbrance is unlimited, there are good reasons for the termination of the agreement and, accordingly, the encumbrance itself.
Such grounds include:
- death of the owner of the land;
- user formalized refusal of encumbrance;
- unnecessary land for further public use;
- bringing together parties to conduct joint activities;
- court ruling on the lawsuit filed by the owner of the land;
- expiration of the encumbrance without its further extension.
Be that as it may, early removal of the encumbrance takes place by going to court, and a justification for this may be an infringement of the right of the owner of the real estate. In the above cases, you can do without litigation by writing a statement to the local administration.
The owner, whose rights have been infringed, may demand from the municipality to redeem the encumbered land if it is not possible to remove the easement. But he must be prepared for the fact that all objects located on this site will go to the use of municipal authorities. And in extreme cases, the owner will be able to rent them. Regardless of how the encumbrance was terminated, this fact is documented by a regulatory act of state bodies that made a decision on imposing an easement, with its further registration. In order to decide on the termination of an encumbrance, it is not necessary to convene meetings and hold hearings (unless otherwise provided by local law).