How and by whom is a private easement established and can it be challenged?

Ordinary citizens are practically unfamiliar with the concept of land easement. But everyone enjoys the “fruits” of the introduction of this term into use and the phenomenon itself. Therefore, it is worth understanding in more detail what an easement itself is.

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What is a private easement on a land plot?

An easement is a specific category of encumbrance on someone else's land plot. Its specificity lies in the fact that such an encumbrance is not a punishment for the owner for violating the law and the rights of other citizens.

This is a slightly different form of encumbrance that can be placed on land even with his consent. The land under easement is burdened with serious restrictions. It will be able to be used by another person for certain reasons and in accordance with the established procedure.

A land easement imposes obligations on the land owner to provide his land for limited use. Often such an encumbrance is of a compensatory nature, with a reasonable payment for the right to use part of the site. This concept is established by the Civil Code of the Russian Federation in Art. 274. A common reason for an easement is the need to ensure movement through a neighbor’s land plot.

In this case, a private easement according to the land code should be based on the absence of alternatives to the approach/access. The establishment of an easement occurs by agreement between citizens on a voluntary basis or when a lawsuit is filed by a citizen interested in the easement (future user).

Purpose of establishing

The variety of options that require the establishment of an easement boils down to its expediency. It is not established without special reasons that force an individual or legal entity to apply to the owner of the site for permission to use part of its territory.

The purpose of such an easement is a compensated restriction of the right to use the site on the part of the owner, which arises in the direction of the applicant for the part of the land plot alienated in his favor.

Installed at the initiative of the owner of the property , which requires placement on the encumbered site. Or - at the initiative of the customer (performer) of work that requires the use of the territory of the encumbered plot. This interaction includes aspects of joint ownership or tenancy, but is neither one nor the other due to the circumstances determining the encumbrance.

In this case, there is always a cause-and-effect relationship between the need of one person and the ability to satisfy it on the part of another. These reasons may include:

• the need to access the roadway;
• passage to water resources;
• passage to your own house through the neighbors' plot;
• someone else's property located on the owner's property;
• installation of a boiler or linear facilities by legal entities;
• conducting communications through the neighbors' property;
• similar reasons.

The right of perpetual or fixed-term use allows the use of one person’s land to solve the problems of another, which creates a symbiosis of advantages and expansion of the boundaries of possibilities, if the parties can agree.

How to establish a private easement

An agreement is drawn up to establish a private easement of a land plot according to the following principle:

1. In two-sided format and in writing.
2. Subject to state registration by USRN. Otherwise, the document is not considered legally strong and the encumbrance is not officially valid.

Easements are subject to state registration based on the norms of Federal Law No. 218 of 15. Land with an easement imposed on it can be transferred through transactions to other owners (under a donation agreement, purchase and sale agreement, as part of an inheritance case). Obligations under the encumbrance pass to the next owner.

Since the rights and interests of the owner are violated, he has the right to demand an objective payment from citizens whose rights have been expanded through an easement. Reluctance to place an encumbrance on the land or the need to determine payment are two common reasons for initiating litigation.

The fee for a private easement on land plots is set taking into account many points:

• the conclusion of the appraiser, the appeal to which is in the area of ​​​​interest of both parties;
• the degree of inconvenience and damage to the owner of the site (for example, the need to demolish fences);
• the duration of the private easement;
• the nature of the use of the site by a third party.

A private encumbrance is established solely to fulfill the personal needs of the land user. But the objectivity of such requests must be taken into account. The usual desire in this case will not be enough.

What is the documentation?

Termination of an easement requires mandatory state registration. Such registration will require the submission of a decision to terminate the easement, based on the termination of the validity period specified when drawing up the agreement for such use of the land territory.

The entry into force of the agreement of the parties to terminate such an agreement, confirmed by an act of a local government body, issued on the basis of an application by the parties to terminate the easement (such an application can be prepared in free form and only requires the provision of title documents for ownership of the territory and passport data of the parties to the agreement).

Based on the documents submitted, a special entry is made in the Unified State Register of Rights at the registration authority at the location of the land plot.

You can find out whether an easement is subject to state registration and what documents are needed for this.

Grounds for establishing a private easement

The grounds for establishing a private easement under the Civil Code of the Russian Federation primarily include the presence of consensus between the owners of different plots, which is expressed in the conclusion of an agreement by them. If there are disagreements, the corresponding court decision becomes another documentary basis for establishing an easement.

Conditions for establishing an easement:

• availability of information on the registration number assigned to the private territory;
• certain time frames during which the encumbrance is planned to operate;
• formulation of the purpose of imposing the easement;
• availability of information on the cadastral number of the land plot.

As for the private reasons for establishing an easement, these include the inability to use one’s property without moving around the neighbor’s land. That is, there are no other approaches and entrances to the property (not necessarily to the house, but also to other objects).

Also, the reason for the mandatory use of someone else’s land is the need to carry out construction work, operate housing and communal services facilities and other linear facilities, drive farm animals and their grazing, haymaking, etc.

Who establishes it and can the landowner do it?

The initiative to establish an easement belongs to the owners who own a plot of land or a permanently constructed building, who cannot do without the use of neighboring territory in solving important life support issues.

Such owners have a great interest in achieving the intended goal, and act as the main initiators of the procedure for establishing a private land easement.

Based on the legislative acts of the Russian Federation, easements can be established for various periods and purposes, which are specified in the agreement (read about what types of easements exist here). According to the mutual agreement between the parties, a land easement involves registration on:

1. Urgent term . The contract is drawn up for a certain period of time, which is required for construction, equipment of an access road, and transportation of property. After completion of the work, the owner’s right to use someone else’s territory is removed.
2. Constant term . When concluding such an agreement, no time period is established. The owner's limited right to use the encumbered plot remains and cannot be terminated until the existing grounds for this cease.

You can find more information about temporary and permanent easements here.

Duration of private easement

The validity period of encumbrances is determined by the citizens themselves and the court when it is involved in the issue of assigning an easement. It directly depends on the reasons for the appointment and the need for the encumbrance.

The duration of a private easement for the use of a land plot can be very short, for example, in accordance with the timing of construction work. When using a site for hiking or driving in the absence of other paths, it is advisable to establish an easement for a longer period of time.

Possibility of encumbering shared ownership - part of the plot

With this small addition to the article we will answer the question: “What is the registration of an easement for part of a land plot and how to do it?”

It is also permissible to encumber land plots that are in joint (shared) ownership with an easement. You should pay attention to some nuances.

1. If allocation of shares is not provided , but the owners have drawn conditional boundaries, then an agreement should be concluded with all owners of the site. After which one of the owners, alienating his part of the plot for encumbrance, identifies the boundaries of the easement.
2. If the shares are allocated , then the agreement with the interested party is concluded by the owner of the right to shared ownership, and the remaining co-owners provide notarized consent to register the encumbrance.

What documents need to be prepared

To establish an easement by agreement of the parties, the following is required:

• personal application for state registration;
• documentary basis for assigning an easement: bilateral agreement of the parties, court decision.

To register an easement, an application will be required (the applicant's representative shall present a notarized power of attorney plus). Also presented to the registration authority is a personal passport, a cadastral passport of the land plot and a cadastral extract, which can be ordered on the Kartagov website in the section of the same name.

In addition, you will have to pay a state fee of 1.5 thousand rubles. for individuals (legal entities pay more) and submit a receipt for it. The easement is valid from the date of its registration with the official bodies.

The agreement includes under Art. 39.25 of the Land Code of the Russian Federation:

• description of the land plot;
• penalties for failure to comply with established obligations;
• cadastral number of the plot;
• registration number of the part of the site in respect of which the easement is established;
• indication of the parties to the contract;
• reasons and purposes for establishing an easement
• term of encumbrance;
• a statement of their rights and responsibilities;
• fee size;
• a statement of the reasons for changing or terminating the agreement;
• If desired, you can include other important information in the document.

To draw up an agreement, you will have to identify its participants (parties to the agreement). The agreement will deal with the owner and the user. A user is an individual who intends to use the site in accordance with the conditions specified in the contract. He signs an agreement exclusively with the documentary owner of the site (not the tenant).

Regarding the procedure for limited use, the owner gives permission to use the land plot, but in a limited manner (prescribing these conditions in detail). This way he is guaranteed protection against misuse of his property.

To establish such an easement, enter into an agreement on it. Include in the agreement the subject, amount of payment, term and other conditions that you consider necessary. If an easement agreement has not been reached or there are disagreements regarding its terms, go to court. The court will establish an easement only if without it you cannot use your property and if it does not prevent the owner of the encumbered lot from using it according to the permitted use. If an easement is established by a court, it determines its terms. As a general rule, an easement must be registered in the Unified State Register of Real Estate in the manner prescribed by law (clause 3 of article 274 of the Civil Code of the Russian Federation, clause 17 of article 23 of the Land Code of the Russian Federation).

1. When and in what order can a private easement be established on a land plot? If you cannot use your property without using someone else’s land plot, then a private easement can be established on it. In particular, an easement may be needed: · for passage and passage through a neighboring plot of land; · construction, reconstruction and (or) operation of power lines (communications), pipelines, highways and other linear facilities; · ensuring water supply and reclamation. You can demand the establishment of an easement if you own real estate on certain real rights, for example: on the rights of ownership, lifelong inheritable possession or permanent perpetual use (clauses 1, 4 of Article 274 of the Civil Code of the Russian Federation). If the owner of the land plot agrees to establish a private easement, enter into an agreement with him on this. If the site is publicly owned, enter into an agreement with the person to whom it is allocated based on the right specified in the law (Clause 6 of Article 274 of the Civil Code of the Russian Federation, Article 39.24 of the Land Code of the Russian Federation). If you cannot reach an agreement, then to establish an easement you need to go to court. 2. How to draw up an agreement on establishing an easement on a land plot Be sure to include its subject in the agreement, that is, indicate that the person is granted the right to limited use of someone else’s land plot (easement). Otherwise, the agreement to establish an easement, as a general rule, is considered not concluded (Clause 1, Article 432 of the Civil Code of the Russian Federation). If an easement is established in relation to a site located in state or municipal ownership, include in the agreement the conditions specified in paragraph 1 of Art. 39.25 of the Land Code of the Russian Federation. These include: 1) cadastral number of the land plot in respect of which it is intended to establish an easement; 2) the registration number of the part of the land plot in relation to which the easement is established, with the exception of a number of cases, for example, if the easement is established in relation to the entire land plot; 3) information about the parties to the agreement (full name, OGRN, TIN); 4) the goals and grounds for establishing an easement; 5) duration of the easement; 6) fee size; 7) the rights of the person in whose interests the easement is established to carry out the activity for the purpose of ensuring which the easement is established; the obligation of the person in whose interests the easement is established to pay a fee; 9) the obligation of the person in whose interests the easement is established, after termination of the easement, to bring the site into condition in accordance with the permitted use. It is advisable to include these conditions in the agreement in the case of establishing an easement in relation to a plot of land that is privately owned. Moreover, some of these conditions will be needed to register an easement, for example, conditions on the term of the easement, on the person in whose favor the easement is established, etc. (clause 123 of the Procedure for maintaining the Unified State Register of Real Estate). The conditions of the easement should be the least burdensome for the use of the land plot in accordance with its intended purpose and permitted use (Clause 8 of Article 23 of the Land Code of the Russian Federation). 3. How to establish a private easement on a land plot in court To do this, you need to prepare and submit to the court a statement of claim for the establishment of a private easement. In this case, there is no need to follow the pre-trial procedure, since the law does not provide for this. However, if you formalized your proposal to the owner of the land plot to establish an easement in the form of a demand (claim), it must be attached to the claim. This is due to the need to confirm that an easement agreement was not reached before the trial (Article 65 of the Arbitration Procedure Code of the Russian Federation, Article 56 of the Code of Civil Procedure of the Russian Federation). When going to court, it is important to remember that an easement will be established only if there are no other options to satisfy the needs of the plaintiff (clause 1 of Article 274 of the Civil Code of the Russian Federation). An easement should be your only opportunity to ensure the normal use of the property. If the person requesting the establishment of an easement cannot fully use the property only because of his actions, and not for objective reasons, the court will refuse to establish an easement. Please note that the court will not establish an easement if, because of it, the owner of the encumbered plot will not be able to use his land plot in accordance with the permitted use. If the court satisfies your request, it will determine the conditions for establishing the easement, in particular the condition of payment and duration. 3.1. How to draw up and file a claim for the establishment of a private easement Draw up a claim in accordance with the general requirements for content and form established by Art. 125 of the Arbitration Procedure Code of the Russian Federation or Art. 131 of the Code of Civil Procedure of the Russian Federation, depending on which court (arbitration or general jurisdiction) you are applying to. Justify why it is necessary to establish an easement and how its absence deprives you of the opportunity to use your own property. Provide in the claim information about the area in respect of which you want to establish an easement, the purpose of establishing the easement, the amount of the proposed fee, the duration of the easement and other conditions under which you want to establish the easement. Point out the fact that you approached the owner of the land with a proposal to establish an easement, but did not reach an agreement. Attach to the claim the documents specified in Art. 126 of the Arbitration Procedure Code of the Russian Federation or Art. 132 Code of Civil Procedure of the Russian Federation. If you ordered an assessment to confirm the validity of your claim, please attach the results to the claim. Pay the state duty in the amount established by paragraph. 3 p. 1 art. 333.19 of the Tax Code of the Russian Federation when filing a claim in a court of general jurisdiction or paragraphs. 4 paragraphs 1 art. 333.21 of the Tax Code of the Russian Federation when filing a claim in an arbitration court. File a claim with the court at the location of the land plot in respect of which you want to establish an easement (Part 1, Article 30 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 38 of the Arbitration Procedure Code of the Russian Federation). 4. How to determine the amount of payment for a private easement on a land plot The amount of payment for a private easement is determined by the parties to the agreement on establishing the easement or by the court. As a rule, the amount of the fee depends on many factors, so to determine it, it is advisable to contact a specialist (appraiser). In some cases, the amount of payment for an easement may be provided for by a regulatory act. In this case, you need to be guided by it. As a rule, this applies to publicly owned areas. For example, if an easement is established in relation to a land plot that is in federal ownership (clause 2, Rules approved by Decree of the Government of the Russian Federation of December 23, 2014 N 1461). 4.1. Determining the amount of the fee in an agreement establishing an easement Typically, the amount of the fee corresponds to the amount that the owner of the encumbered site could receive if the site were not encumbered by the easement. For example, the possible amount of rent for a site used for travel and passage. When determining the size, they take into account, in particular: · the costs of the owner of the site in connection with the establishment of an easement or the costs of organizing passage, demolishing fences, and complying with access control regulations; · the degree of inconvenience in connection with the establishment of an easement; · the nature and intensity of use of the site by the person in whose interests the easement is established; · term of easement. Often, when determining the amount of payment for an easement, the report of an independent appraiser on the market value of the fee for an easement is taken as a basis. 4.2. Determining the amount of payment for an easement in court If an easement is established in court, the court usually appoints an expert examination (independently or at the request of the parties) and determines the amount of payment for establishing the easement on the basis of an expert opinion. When determining the fee, the court takes into account, in particular: · the reasonable costs of the owner of the plot in connection with the restriction of his rights, or the termination of his obligations to third parties, or the creation of conditions for the implementation of the easement; · the intensity of the intended use of the site (for example, the intensity of traffic on the site); · the nature of the inconvenience experienced by the owner of the site encumbered by the easement (for example, noise and dust from transport); · the share of the land plot limited by the easement in the total area of ​​the plot; · term for establishing the easement; · the degree of influence of the easement on the possibility of disposing of the land plot; · material benefit acquired by the person in whose interests the easement is established. 5. For what period is a private easement established? The term of the easement is determined by the parties to the agreement (Clause 7, Article 23 of the Land Code of the Russian Federation). If they have not agreed on the establishment of an easement, this period is determined by the court when resolving a dispute regarding the establishment of an easement. The choice of the duration of the easement depends on the needs for the use of the encumbered land plot and the capabilities of its owner. For example, if you establish an easement for the purpose of carrying out repair work, then it is advisable to determine the term of the easement in accordance with the timing (duration) of their completion. If you want to establish an easement, for example, for driving through a neighboring plot of land, since there is no other road, it is advisable to establish a longer period. In some cases, the law limits the duration of the easement. For example, a tenant of a public land plot that is encumbered by an easement has the right to enter into an agreement to establish an easement for a period not exceeding the term of the lease agreement (clause 7 of article 23, clause 4 of article 39.24 of the Land Code of the Russian Federation).

When may court assistance be needed?

You can go to court for an easement at any time. The court is obliged to consider all claims of citizens. However, the judge will be interested in the fact that the plaintiff has attempted to enter into a voluntary agreement with a neighbor. Therefore, if you need to organize an easement on a neighboring plot, you need to try to come to a consensus in the world order.

If there is a conflict of interests, the resolution of the problematic issue is entrusted to the judicial system. When going to court, it is necessary to correctly draw up a statement of claim (under Article 125 of the APC and 131 of the Code of Civil Procedure).

An important point in the claim is the justification for applying for an easement. It is necessary to provide strong evidence (primarily documentary). The plaintiff independently offers a certain fee for the use of the site, the duration of the encumbrance, and other conditions. Documentary attachments must comply with Art. 126 APC and 132 Code of Civil Procedure.

Incurring expenses when withdrawing limited rights of use

The termination of the encumbrance results in certain expenses, since such a process relates to the performance of legally significant activities. The main expense will be the payment of the state fee for completing the registration process. Depending on the holding entity - a citizen or an organization - the amount can range from 500 to 2000 rubles.

If preparing an application and the necessary documents requires contacting specialists with appropriate training, or a notary, expenses may range from 2,000 to 15,000 rubles, depending on the type of restrictions.

Grounds for termination

Typically, an easement is imposed for a specific period. This is an optional, but convenient design option. Even in the indefinite version, the encumbrance is subject to termination. Like the initial registration, termination can be voluntary or ordered through the court.

Grounds for termination of a private easement:

• expiration of the validity period, if one was established in a documentary manner;
• the end of the reasons for imposing the encumbrance (for example, a different approach or access to the user’s property has appeared);
• violation of the rights of the owner in the matter of using land at his own discretion.

The encumbrance can be terminated bilaterally if the reasons for its initial imposition have disappeared. The owner has the right to try to cancel the easement in court when his rights are infringed.

For example, initially, the owner was not against the limited use of his land, since he did not use it for its intended purpose. If he subsequently wishes to use the land in full, then a controversial issue arises (and grounds for termination of the easement).

Legislative regulation

The main laws regulating the termination of easements are the Civil and Land Codes of Russia.
They contain comprehensive grounds for the procedure, rules for lifting the encumbrance, voluntary and judicial procedures for lifting restrictions. The Code of Civil Procedure of the Russian Federation regulates the process of canceling an easement if it occurs through judicial proceedings. It establishes the obligation to file a claim and provide additional documentation as evidence necessary to fully resolve the conflict.

Considering that the imposition of encumbrances and their cancellation must be registered in the manner prescribed by law, this procedure is regulated by the Federal Law “On Real Estate Registration”.

What areas cannot be covered by personal easements?

The following are not entitled to personal easements of territory:

• Lands located in forest fund zones, as well as forest belts that are not included in it, but belong to forest users on the basis of government acts, court decisions and agreements.
• Water fund lands, which are a form of public or private encumbrance.

These types of encumbrances have several limitations. In the first case, a personal easement is established only by a court order, through a contract or agreement, or on the basis of an act from a government agency. In the second case, the encumbrance can be created exclusively by agreement with government agencies or by court decision.

Grounds for legal action

The purpose of establishing restrictions on property ownership is to obtain additional benefit from land owned by another person.
Has a limited or definite period. When an easement is established, the owner of the plot has the right to demand compensation for possible losses and damages that he will incur if the plot is used by third parties.

Important. The amount of loss is discussed by the parties voluntarily among themselves or disputed in court, since there is no clear tool for calculating it.

It is established in the case when the parties were unable to reach an agreement and the owner of the encumbered plot did not sign the easement agreement within 30 days. The main provisions for determining an easement are:

• conducting research activities;
• carrying out work involving the impact of minerals;
• installation of all kinds of structures, identification marks, and other infrastructure facilities permitted by law;
• difficulty moving around the land;
• establishing access to utilities;
• ensuring access to water sources;
• impossibility of pasturing and grazing livestock and other economic activities.

The easement must not contradict the intended purpose of the land plot or building to which the restriction applies.

Owners of land plots who have the right of lifelong ownership, who entered into possession more than one year ago, and who have the opportunity to inherit the disputed property, can request an easement. Persons who have received the right to own someone else's property cannot transfer this plot to third parties (for example, donate, sell, exchange, etc.)

How to file a claim?

Attention. An easement claim is the main document that will be considered by the judge during the process.

Compiled in accordance with the requirements of the Civil Procedure Code of Articles 131, 132.

In order to avoid inaccuracies that could affect the court's decision, when drawing up a statement of claim, it is advisable to contact a lawyer who specializes in such cases.

Let's look at how to write a statement of claim when filing it yourself. The document states:

• the name of the judicial authority to which the application is submitted;
• the plaintiff’s passport details, telephone number and address;
• last name, first name, patronymic of the defendant, his address and telephone number;
• for a legal entity - company name, details (for institutions TIN, KPP, for individual entrepreneurs only TIN);
• legal and actual address of the legal entity;
• rights of the trustee, principles for representing the interests of the plaintiff;
• a document indicating the methods of pre-trial settlement of the issue and the reasons why it was not possible to reach it;
• reasons for establishing an easement, terms and purposes (for example, pasturing livestock, laying communications, etc.);
• a short pleading part of the application indicating the owner of the disputed property;
• a list of documents confirming the impossibility of solving the problem in another way;
• date when the claim was filed, transcript and signature of the plaintiff.

Important. The statement of claim is drawn up by the person initiating the litigation.

The defendant is the owner of the plot on which the easement is imposed.

Consequences

1. After the termination of the encumbrance, the land owner loses the right to receive payment for the service.
2. Persons who previously had the right to use the site can no longer use it for their needs.

As you can see, an easement can be terminated at the request of the person in whose interests it was established , but more often this happens at the request of the land owner. To cancel, it is enough to submit an application-demand to special authorities and draw up an additional agreement on termination of the contract.