Rights, obligations and encumbrances of the easement owner

Grounds for the creation of an easement

Each territorial easement is established subject to the obligatory condition of the existence of legal grounds. The main reason for concluding this document is the need to ensure and satisfy the interests of national importance, the needs of municipal local governments, as well as the needs of individual citizens.

Specific grounds for establishing an easement regime in relation to territories are:

• the need for free pedestrian passage or passage through the land plot using a vehicle;
• the need to place geodetic, administrative and boundary signs within the territory, as well as the organization of approaches to these objects;
• use of water resources from water bodies and agricultural watering places located on the territory;
• the need for cutting hay and grazing livestock in a strictly limited manner, and also subject to compliance with all deadlines;
• carrying out survey, archaeological, research and scientific work;
• exploitation of territories for the repair of any utilities, electrical communications, as well as reconstruction of transport infrastructure facilities;
• the need for drainage manipulations;
• the need for agricultural animal breeds to pass through the site;
• use of the territory for hunting, fishing, and spending time within the coastal strip.

Personal easement

A personal easement is established for one person. You may need it, for example, to drive your car through a private yard. In this case, the easement cannot be transferred from its owner to any other person.

Just as in the case of a public easement, the owners of a land plot have the right to demand payment from the persons in whose interests the easement is established.

Personal easement, according to clause 1 of Article 274 of the Civil Code of the Russian Federation, can be established for the purposes of:

• passage or passage through a neighboring plot of land;
• construction, reconstruction and operation of linear facilities, if this does not interfere with the use of the land plot by the owners,
• other needs of the owner of real estate that cannot be satisfied without the establishment of an easement .

Land plot as part of the common property of the MKD
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Types and forms of land easements

Land legislation invites citizens to enter into any easement. Depending on the subjects of this agreement, easements can be:

• Private easements indicate the granting of the right to limited use of a land plot that is located directly next to the border of the territory. Ensuring the interests of citizens can be carried out without concluding a private easement, subject to the consent of the legal owner of the territory;
• Public easements are usually concluded in order to satisfy public needs, which include ensuring state interests, the needs of local governments and the local population of federal subjects.

The concept of easement

An easement is the right to limited use of someone else’s real estate (Article 1 of Federal Law No. 122-FZ dated July 21, 01997), which is transferred to another person by right of encumbrance. It is sometimes needed, for example, for owners of other houses to lay a road and communications through someone else’s land and use them. In this case, an easement as a real right to a building, structure or premises may exist independently of the use of the land plot. The party that received the easement does not take possession of the plot, and the owners are not deprived of the right to use it (Clause 2 of Article 274 of the Civil Code of the Russian Federation) but can only use it, and for a specific purpose established by the contract or agreement.

An easement is a fairly rare occurrence when it comes to apartment buildings. After all, to obtain such permission it is necessary to obtain the consent of the owners, and our people are usually reluctant to agree to transfer their property for use. If the residents do not object (a simple majority of votes is required at the OSS), then an appropriate agreement or contract is concluded. This document becomes part of the technical documentation of the MKD and is stored with it.

An easement can be temporary (concluded for a certain period) or permanent; personal and public.

You can find out what is included in the technical documentation from this article.

The procedure and period for establishing an easement. Agreement on the establishment of easement

An easement is established in any order: in accordance with a voluntary agreement, by law, in accordance with a will, and also by a court decision. The duration of this regime is established by the subjects of the agreement, but the legislation also provides for an indefinite easement.

The agreement on the establishment of a territorial easement must include the following data:

• data on the purposes of use and location of the land;
• cadastral data of the site;
• contract time;
• the amount of payment for the use of the territory;
• responsibility of both the user and the owner.

Application to the court for the establishment of an easement

A private or public easement on a land plot can be established after filing a claim with the judicial authorities. To make a positive decision, it is important to draw up the application correctly. This document includes the following information:

• Full name, actual place of residence of the plaintiff and defendant;
• accurate cadastral and administrative data of the land territory that is the object of the easement;
• the plaintiff’s requirements and grounds for establishing the easement;
• the exact duration of the contract and the amount of fees for its use;
• the fact that the defendant is familiar with the requirements;
• provision of necessary applications.

TERMINATION OF THE RIGHT OF LIMITED USE OF ANOTHER LAND

Quite often in life situations occur when the owner is forced to allow other persons (usually the owner of a neighboring land plot or building, structure, premises) to use his land plot for passage or passage through it, so that the latter, in turn, can exercise the rights to use of property belonging to him. You can read in detail about the procedure for establishing such a right, problematic issues in proving the need to establish such a restriction on our website in the article “How to get to your land.” The right of limited use is a burden on property, which is not always desirable, and moreover, leads to negative consequences, such as the inability to use the land in accordance with its intended purpose. In order to terminate the relationship of providing a site for use by third parties, it is necessary that the appropriate grounds be established.
Due to the fact that the right to limited use of someone else’s land plot (easement) is registered in the Unified State Register of Rights to Real Estate and Transactions with It, its termination requires reflection in the register. The regulations of the Ministry of Justice of the Russian Federation explain that as documents - grounds confirming the early termination of an easement on a land plot, it is recommended to request an agreement on the termination of the easement concluded by the owner of the land plot and the person in whose favor the easement was established, or a court decision on termination of the easement .

One of the grounds for terminating the right of limited use of someone else's land plot (easement) is an agreement of the parties by which the parties terminate this right of limited use. This is the simplest and most cost-free basis; however, the person in whose favor the right of limited use of someone else’s land plot (easement) was established does not always agree to its termination. In addition, the unilateral refusal to execute an agreement to establish a private easement on a land plot (limited use rights) is in itself unacceptable. That is, there must be really existing circumstances indicating

disproportionate restriction of the owner’s rights when establishing an easement, or that the need to limit the right of ownership of a land plot has ceased or that the circumstances under which the right to limited use of a land plot was established have changed significantly.
If a dispute arises about the termination of the right of limited use of someone else's land plot, the owner of the land plot has the right to file a claim in court to terminate the easement (limited use right). The basis for such an appeal may be the refusal of the person using someone else's land plot to sign an agreement on early termination of the agreement establishing such a right. A court decision satisfying the plaintiff’s demands as a result of the consideration of the dispute will be the basis for termination of this right.

However, in order for the court to decide to terminate the right to limited use of someone else's land plot , the plaintiff must provide relevant evidence. Firstly, we are talking about evidence that such a restriction is not necessary at the moment. For example, to substantiate that the grounds for the establishment have disappeared, it is necessary to provide evidence of the existence of the possibility of unimpeded passage or passage to the defendant’s site without crossing the territory of the land plot owned by the plaintiff.

Secondly, an important condition for satisfying the claim is proof of the impossibility of using the land plot in accordance with its intended purpose due to its encumbrance with the right of limited use. For example, only vehicles with special sanitary passports and persons who have undergone a medical examination may be allowed to drive and pass through the territory of a bakery production plant. The passage of persons and vehicles without appropriate documents prevents the use of the land plot on which the plant is located in accordance with its intended purpose. Therefore, the owner of such a land plot has the right to file a claim for termination of the right to limited use of the land plot by third parties due to the impossibility of using the land plot for its intended purpose, if such use takes place by third parties for their own purposes.

To confirm the existence of the above grounds, it is necessary to seriously approach the presentation of legal justifications and evidentiary material to the court, since proper and convincing evidence is an essential condition for satisfying a claim for termination of the right to limited use of someone else’s land plot (easement). The difficulties of this category of cases are associated primarily with substantiating the plaintiff’s position and presenting evidence confirming this position, as well as supporting it with the appropriate legal framework. In this connection, of course, it is important to promptly seek qualified assistance from experienced practicing lawyers to competently substantiate and fully document all requirements.

Termination of easement of a land plot

A public easement on a land plot is legally subject to termination, subject to certain grounds, including:

• refusal to establish an easement regime for the person to satisfy whose needs the easement was to be concluded;
• expiration of the land encumbrance;
• violation by a party to the agreement of the terms of use of the territories, which are established by the documentation;
• the one who is the owner of the site and to satisfy whose interests the agreement is concluded is one person;
• existence of a court decision to terminate the easement;
• non-use of the easement for more than three years.

Termination of a land easement may be carried out in court at the initiative of any of the parties.

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Rights

The owner retains his right to own the plot, so he can sell or lease it. Moreover, in this case the encumbrance is transferred along with the land, since the easement is registered on the land, and not on its owner under Article 275 of the Civil Code. The owner is obliged to warn the buyer or tenant about the restrictions imposed on the land plot.

Also, upon signing the agreement, the owner has the right to receive payment for compensation for the use of the territory under Article 274, paragraph 5 of the Civil Code.

The owner of the land has the right, when the basis for the introduction of an easement is eliminated, to terminate the encumbrance, in accordance with Article 276 of the Civil Code.

This may occur when concluding an agreement to lift the restriction or when filing a claim in court.

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