The easement in land law is a restriction on the use of the allotment. In the domestic system, this concept was first introduced in paragraph 4.10 of the Regulations on the state privatization program No. 1535. Next, we consider the types of easements under land law.
Historical reference
For the first time, land easements appeared in Roman law. The concept of servitus literally translates as "slavery of things." Moreover, the object served not only the direct owner. It was also used to benefit from a neighbor. In Roman law, there was a provision that his own thing does not serve anyone, that is, a person could not establish an easement on his site, but only on someone else's.
Formation of the regulatory framework
As you know, civil law has undergone a number of changes. In particular, new provisions concerning property relations were introduced. Easements to land regulated by Art. 274-277 Civil Code. The essence of the rules is as follows. The owner of the property may require the owner of the neighboring allotment to provide him with the opportunity to use his territory to a limited extent.
Appointment
Easements on land are set for different purposes. For example, to create a passage / passage, laying and using utilities, pipelines, communication lines, water supply. That is, easements on land are necessary to meet the needs of the owner, which cannot be provided in any other way. They act as an encumbrance that does not deprive the owner of the opportunity to dispose of and use the facility.
Terms of establishment
Easements for land are introduced by agreement of the parties. These encumbrances must go through state registration. If the owners have not reached a mutually beneficial agreement, a land easement is established by court order. It should be noted that not only the owner can enter into an agreement with a neighbor. The easement can be established at the request or in the interests of the entity to whom the plot is granted on the basis of inherited ownership or permanent use. The encumbrance in the form of limited ability to use part of the allotment involves the collection of fees. The cost of easement on the land is set by the owners (owners) independently.
The specifics of transactions
According to Article 613 of the Civil Code, the owner of the allotment, when leasing it, must warn that a land easement has been established on him. If this condition is not met, the user may demand a reduction in the amount of payment or terminate the agreement by suing for damages. When concluding a loan agreement, the entity that transfers the facility to gratuitous operation must also notify the other party to the transaction of existing encumbrances. If this condition is not fulfilled, the borrower may terminate the agreement unilaterally and demand compensation for damage.
Classification
The norms provide for two types of encumbrance. A public easement on a land plot may be established by decision of the territorial authority on the basis of urban planning documents and in accordance with the building rules. This burden is usually caused by the need to satisfy public or state interests. A private easement on a land plot may be established to limit the exploitation of allotment and other real estate to ensure:
- Reconstruction, construction, use and repair of structures, buildings, as well as objects of transport and engineering infrastructure.
- Directions / passage through the territory belonging to another person, unless otherwise possible to get to your own site.
- Perform engineering work, protect the area from flooding and flooding, and construct retaining walls.
- The use of devices penetrating foreign territory at a certain height during the construction of buildings.
- Repair and maintenance of common walls in buildings of blocked development.
- Other needs of property owners, the provision of which cannot be carried out without establishing an encumbrance.
The easement may not act as an independent subject of sale or pledge, or be transferred in any way to persons who are not owners of the objects for the use of which it is provided.
Cessation of encumbrance
It is carried out at the request of the owner of the site, in respect of which an easement has been established. Termination of the encumbrance may be caused by the absence of the grounds in accordance with which it was provided. The owner can go to court to eliminate the easement, if its presence creates significant obstacles to the use of the site for its intended purpose.
Additional Norms
The easement is provided not only in the Civil Code. The encumbrance, for example, is regulated by Federal Law No. 113 “On the Hydrometeorological Service”. The easement is set for allotments, which are used for passage / passage to stationary observation points included in the state network. The procedure in accordance with which the encumbrance is introduced in this case is determined by the government in Decree No. 972. In the Federal Law No. 72, which regulates the operation of homeowners associations, it is stipulated that a limited right to use them by third parties can be established in relation to the land plot and other common property persons. At the same time, a ban on the introduction of encumbrance is not allowed if there is a need to provide other entities with access to facilities that existed before the adoption of Federal Law No. 72. If the question arose of establishing a new easement, it is decided by agreement between the person concerned and the apartment owners. If consensus is not reached, the dispute may be resolved in court. To clarify the provisions related to the introduction of encumbrances provided for in Federal Law No. 72, the Government adopted Decree No. 1223. It approved the rules for determining the size and setting the boundaries of allotments in condominiums. In accordance with them, the territory of general use within a microdistrict, quarter, is subject to lease or ownership to a partnership of owners or homeowners only subject to the introduction of the necessary easements and restrictions.
Other cases
The Federal Law No. 123 defines the possibility of introducing an encumbrance on plots to satisfy the needs of pedigree animal husbandry. The need to establish the easement may also arise during land reclamation, for example, when draining it to drain water. The relevant provision is provided for in paragraph 3 of Article 26 of Federal Law No. 4. Allotments that are located on the border with the territories of reclaimed land may be used with restrictions established by the LC and CC.
Additional types of encumbrance
Forest and water legislation also provides for the establishment of easements. In their content, they are close to the encumbrances considered above. The water easement is enshrined in article 43 of the VC. Under the terms of the contract, the capabilities of entities that are provided with long-term or short-term use of the relevant facilities may be limited in favor of other persons. A private water easement may be established by court order. An important point should be noted. The rules on easements provided for by civil law apply to water bodies in the part that does not contradict the VK.
Burden Objectives
Water easement, under Article 44 of the VK, may be established for:
- Water abstraction without the use of structures, technical devices and means.
- Cattle run and watering.
- Operation of facilities as communication lines for boats, ferries, small vessels.
The law may provide for other purposes. To exercise the limited right to a water body, there is no need to obtain a permission to use.
Specificity
The peculiarity of a public easement on a water body is that the owner is one side, and the unlimited number of people who use it is the other. However, the latter are not the owners. A private easement for a water body is established between non-owner users.
Forest fund
The rules for using its territories are enshrined in LC. In accordance with article 21 of this code, citizens can freely be on the lands, both included and not included in the forest fund. Moreover, the ability to use the territories of the latter category may be limited in favor of other interested entities. The basis for establishing a forest servitude is a contract, a decision of a state body or territorial structure of power, as well as a court. The established encumbrance must go through the registration procedure. If an agreement is not reached between the interested subject and the owner of the territory, the dispute is considered by the court at the suit of the first. The public easement, in accordance with the LC, assumes that one side is the owner of the territory - the Russian Federation, and the other - an unlimited number of people who use. However, the latter are not the owners. When establishing a private easement, the parties to the transaction are exclusively non-owners. Decisions of government institutions (state or local), providing for the introduction of encumbrances on the territory, can be challenged in court in the prescribed manner.