Public easement under new rules

What is a land easement?

Civil Code of the Russian Federation in Art. 274 gives the concept of easement. This is the provision of the opportunity for limited use of a plot of land located in the neighborhood, in cases where this is necessary. An easement can be established, for example, to provide access/passage through the territory of the site.

It is important to know that the establishment of this encumbrance is considered a last resort measure, used only in cases where there are no other ways to meet the needs of the land owner.

An easement is established between two parties under an agreement: the owner of the site and requiring the establishment of an encumbrance with subsequent registration in Rosreestr. If it is not possible to reach an agreement, the dispute is resolved in court.

What is an easement on a plot of land?

A piece of land with clearly defined and documented boundaries fits into the concept of “land plot”. Its legal status and characteristics are stated in the Unified State Register of Real Estate. A land plot can have different forms of ownership: state, municipal, private.

A land easement provides for a limited right to use the site. It happens that you can only walk or drive to your home through your neighbor’s territory. In this case, a written agreement on the right of passage between the owner and the user is needed. A verbal agreement may become invalid due to a quarrel, personal hostility, or bad mood of the owner. A notarized document will protect the one who demands the easement from possible troubles. When an agreement is concluded between specific private individuals, this type of easement is private.

This legal concept is established in the Land and Civil Codes of the Russian Federation. If, according to the agreement, the user of the easement tries to dispose of someone else’s land for other purposes, much less sell or lease it, the owner can sue him. The owner has the right to sell his plot. If the owner of the land changes, the easement remains.

The contract for partial use may specify the duration of its validity, or the easement may be of unlimited duration. Also, this legal act is established voluntarily, and in some situations compulsorily. In the first case, a written agreement is drawn up, which specifies:

• Time and place of document preparation.
• Personal data of all parties to the contractual relationship.
• Characteristics, including cadastral number of the land plot.
• Reasons for the need for an easement.
• Duration of the contract or no restrictions.
• List of all persons claiming the easement.
• Indication of the portion of the plot that will be given for limited use.

For mandatory registration of the agreement in the Unified State Register, you will have to provide an identity card of all persons specified in the document, the ownership of the owner of the plot and a plan of the land plot indicating the zone of use, as well as a receipt confirming payment of the state duty.

Types of land use restrictions

Legally, encumbrances on land plots are distinguished:

1. Private easement. It is applied on the basis of a concluded and registered agreement or court decision when the interests of a certain person or organization are affected. Typically, such an encumbrance is of a compensated nature and the owner of the land has the right to demand a reasonable payment from citizens or legal entities in whose favor the encumbrance is registered. Except in cases where federal legislation is applied, obliging the application of a gratuitous restriction or when the owner himself voluntarily refused the payment.
2. Public easement. Established subject to the availability of a regulatory document of a government body or municipal entity. It can be imposed on the territory of land through which public communications are carried out, for example, water supply, gas pipelines. Here, the land owner cannot count on monetary compensation in connection with the imposition of an encumbrance.

Easements also differ according to the period for which they are established, it happens:

• permanent, without setting a deadline;
• urgent, when a specific period during which it will be valid is determined, or the occurrence of an event upon the occurrence of which the servitude will be lifted. As a rule, it is imposed in the case of certain work related to the laying of communications. Then, as soon as the work is completed, the encumbrance ceases;

When does a public easement apply?

Public restrictions provide for the exploitation of land by a state or municipal entity.

Read more about how to lease state or municipal land.

The grounds for imposing an encumbrance include:

• laying communications (gas pipeline, power lines);
• driving and grazing livestock belonging to farms and peasant households;
• passage of a public road through private territory;
• carrying out research and prospecting work;
• construction of public facilities;
• the possibility of unhindered passage to the water source (shore zone);
• placement of information signs;
• performing drainage work.

An agreement on the public use of a site must be registered with Rosreestr. Users of a public easement must comply with sanitary standards, fire protection rules, and take care of the preservation of the land.

When is a private easement necessary?

An agreement on the limited use of a site is concluded by the owners of adjacent plots. The establishment of a private encumbrance is used in the following situations:

• the need to travel or pass through neighboring territory;
• carrying out and repairing communications (for example, water supply, electrical cable);
• construction and repair of real estate;
• providing for other needs of the owner.

If the owners of the plots cannot agree on joint exploitation, the decision will be made in court.

Practice shows that a simple easement is drawn up by agreement of the parties in the presence of several circumstances:

• minor losses from the imposed restrictions are expected;
• it is not profitable for owners to bring the case to court;
• the person to whom the claim is made receives monetary compensation.

The amount of payments is determined by the size of the expected damage.

How are easements further distinguished?

Encumbrances on a land plot can be classified according to their duration. A fixed-term contract is valid for a certain period (for example, during repairs). A perpetual easement is not limited by time and is permanent.

There is a division of agreements on the exploitation of land territories by objects:

• water (use of reservoirs);
• forest (the right to freely stay in forests, collect mushrooms and berries).

In addition, the easement is provided free of charge or on a paid basis. To calculate the amount of payments, you should take into account real costs, intensity of use and cost of loss of benefit. If a legal entity makes a claim for encumbrance, compensation is additionally subject to VAT.

Grounds for the creation of an easement

The reasons and cases of application of easements to land plots are listed in Article 23 of the Land Code.

An encumbrance in the form of a public easement is used:

• to provide passage/passage through a piece of land if another route cannot be provided, for example, to the shoreline and a public reservoir;
• when part of the site is used for driving farm animals, making hay, or grazing animals at a certain time;
• for drainage work;
• when operating the allotment as a hunting and fishing zone;
• for repair of communications and use of this site;
• when the site is used for the purposes of research and survey work for a certain period.

An easement on a part of the land is required in order to provide other persons with the right to exploit someone else’s land when no other way exists. That is, this type of encumbrance can only be registered by a person whose rights cannot be realized without using someone else’s allotment. An easement is imposed by mutual agreement or forced by a court decision.

A private encumbrance can only be established to fulfill personal needs. For example, a citizen owns a plot of land where there is a natural water source. The owners of neighboring territories have the right to ask or demand permission to pass through the territory of private land to a source to collect water.

Establishment of land easement

The law regulates the application of land encumbrance; it can be established on the basis of:

• written agreements between two or more persons, the owner of a land plot on the one hand, interested in its use and initiating the imposition of an easement, on the other;
• a decision made by a state body or municipal entity through public hearings;
• judge's decisions.

A private easement can be established with the voluntary consent of both parties. A person interested in the limited use of someone else's land and wishing to have legal grounds for doing so approaches the owner of the land with such a proposal.

If you manage to reach an agreement, it is imperative to formalize all oral agreements in writing in an agreement, where you indicate:

• the purposes for which the area encumbered by the easement will be used;
• list all the rights and obligations of the parties to the agreement;
• establish a certain fee for the use of the territory of the land plot.

Then the easement right must be registered with the Rosreestr body. Only upon completion of the entire procedure does the agreement become legal and is valid from the date of registration of the encumbrance. From this moment on, the plot of land specified in the agreement can be used by an interested person, and the owner of the plot will be able to demand the appropriate payment for this.

If it is impossible to reach an agreement in the usual way, the initiator of the imposition of the easement can go to court, which will help resolve the controversial issue. This type of solution is also required to document the right to use part of the land when its owner allows this, but refuses to formalize it. Often, in the event of any conflict, the owner can stop the use and limit access to the territory to which he has legal rights. To prevent this from happening, it is better for the interested party to receive guarantees that he will be able to continue to exploit part of someone else’s land.

The court's decision can only be influenced by evidence that the plaintiff has no other option than imposing an easement on someone else's land. Therefore, the interested party must prove to the judge:

1. His personal rights without imposing an encumbrance on a plot of neighboring land will be infringed. For example, it is impossible to lay a water pipe to your home without touching someone else’s property.
2. The parties failed to come to an agreement peacefully and conclude an agreement. Perhaps the land owner is demanding an inflated payment or putting forward other conditions that the plaintiff does not agree to.

When considering the submitted materials, the court will be guided by the principle of the rights of each party and a reasonable balance of their interests. Restrictive measures applied to land should cause the least inconvenience to the land owner. The rights of the plaintiff should also not be infringed and only his necessary needs should be realized.

For example: The plaintiff is seeking the opportunity to conduct communications to his house through the territory of a neighbor’s land plot or to carry out passage/drive through it. The judge reviews the case materials and decides which part of the site can be used for this purpose, establishes the route of passage or passage, and also establishes the terms of the encumbrance, the tariff and the terms of payment that will be required in the form of compensation for the easement.

Validity

An easement can be urgent or indefinite. Certain conditions for the release of the encumbrance must be set out in the contract. An easement may be withdrawn for the following reasons:

• the arrival of the agreed date specified in the agreement of the parties;
• the occurrence of an event that removes the effect of the encumbrance.

It should be taken into account that the encumbrance concerns a plot of land and does not disappear anywhere when the owner changes. According to Article 278 of the Civil Code, it passes to the new owner.

Sample

Forms of agreements to establish an easement on a plot of land:

• urgent, paid -
• indefinite, gratuitous -
• permanent, paid -

Instructions for carrying out

We found out that easements are subject to state registration. To pass it, you need to first complete and collect a number of documents. Moreover, this list will vary depending on the type of easement and the parties involved in this transaction. To enter documents into Rosreestr, the presence of one party is sufficient.

If documents are transferred to the registration service by a third party, then a power of attorney must be issued to him to represent the interests of one of the parties. It must be certified by a notary. When submitting documentation, you must provide this power of attorney and the passport of the person for whom it is issued.

Step-by-step algorithm:

1. Collection of documents and payment of state duty for private encumbrance in accordance with Article 333.33, paragraph 31 of the Tax Code.
   State registration of easement of a land plot requires the provision of the following documents:
   • legal act – the main document for establishing an easement;

   constituent documents: charter, constituent agreement;

2. extract from the Unified State Register of Legal Entities;
3. power of attorney for the right to represent the organization, issued to an authorized person;
4. permission from the municipality to establish a restriction;
5. a document confirming the status of the local government body from which the encumbrance is imposed;
6. regulation on public debate;
7. cadastral passport indicating restricted zones.

State registration of an easement is carried out by both individuals and legal entities:

For an individual the following is provided:

• passport;
• a receipt for payment of the state fee for registration of the easement in the amount of 1,500 rubles.

For a legal entity:

• constituent documents: Charter, constituent agreement;
• extract from the Unified State Register of Legal Entities;
• power of attorney for the right to represent the organization;
• payment document for payment of the state fee for the easement in the amount of 6,000 rubles.

General documents for all types of persons:

• agreement – ​​the main document for establishing an easement;
• passport issued by the cadastral chamber, with markings of restricted zones.

When a case is submitted to the court for consideration, the main document for making an entry in Rosreestr is the court decision. It is provided in the form of two copies, certified by the official seal, with a note indicating that the decision has entered into legal force.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 350-29-87

To ensure proper preparation of documents, you can hire a specialist from a law firm. But if there is no need for this, it is not necessary. The main document that is the reason for introducing the encumbrance (agreement) does not need to be certified by a notary office, unless there is a requirement from one of the parties.

Payment for easement on land

The owner of the land has the right to legally demand payment for the use of his territory from an interested person. The amount of the payment itself must be adequate and commensurate. Both parties can independently agree on how expensive it will be for the initiator of the easement to use part of the neighbor’s land and specify the tariff in the agreement. If it is impossible to come to a mutual decision, only going to court will help.

The owner of the land has the right not to establish a fee and to enter into an agreement on the free establishment of an easement.

Public easement on a land plot

A public easement does not have a specific subject in respect of whom such a right is established. The establishment is carried out by decision of the executive government or local government. Authorities adopt a regulatory document specifying the conditions for limited use. Such a decision requires public hearings and strict compliance with all provisions of the law. Otherwise, the owner’s rights may be violated and his interests infringed. A public easement in no way deprives its owners of the right to use and completely dispose of land plots. In such cases, a public easement may be established:

• unhindered access of citizens to the shores of water bodies;
• during repair work of utility networks, utility lines or transport infrastructure;
• placement of geodetic signs and unhindered access to them;
• carrying out engineering surveys, geological research, geodetic work within the framework of state programs;
• work related to reclamation and installation of water supply;
• travel for the withdrawal of water resources for public needs;
• grazing and driving livestock, haymaking during the period of time established for this type of agricultural work in a given area;
• cases of hunting and fishing in areas adapted for this purpose.

In both the establishment of a private and public easement, the legal owner of the property may demand a proportionate fee for use. If the owner decides that his rights and interests have been violated, he has the right to go to court to overturn the authorities’ decision. If the filed claim is satisfied, the contract may be terminated. But for this to become a legally confirmed decision, it is necessary to register the termination of the agreement in Rosreestr and enter the relevant data into the Unified State Register of Real Estate. When the contract expires, the termination of the agreement must be recorded by entering information into the Unified Real Estate Register.