The ability to legally use property owned by another person is called an easement. In some specific situations, a land plot acts as property. This right is legal, but has some restrictions.
You can use a land plot owned by someone else only within the framework of specific purposes, and within strictly defined limits. What needs to be done to establish an easement on a plot of land to ensure passage through this territory - we will find out in the article.
What does this concept mean?
So, let's try to figure out what it is - an easement for the passage and the road? The owner of the site may need to move around the territory of a neighboring or nearby property.
In situations of this kind, it is practiced to register an easement for movement on someone else’s property to one’s own land.
The owner of a land plot in need of limited use has the legal opportunity to declare the need to use the land area of a neighbor or other person for the purpose of movement. Legal entities or individuals apply for the establishment of an easement based on its reasonableness, appropriateness, relevance to the purpose and the presence of compelling reasons.
Limited use is approved in a regulated sequence prescribed by legislative acts, by mutual agreement of the parties involved or by a court order. An easement on a plot of land does not become the subject of a trade transaction or transfer to citizens who are not recognized as the owners of the land.
Legal acts divide easement into private and public (state). Private view regulates the attitudes and interests of individual citizens. In public form, restrictions are expressed by government agencies or the local population.
The established encumbrance provides the opportunity for beneficial interaction between the parties, their rights and obligations, and agreement in making a compromise decision.
Do you want to establish an easement on a neighboring plot of land? Don't know what is more profitable: rural or urban limited use rights? The answers can be found here!
Conditions for establishing an easement on a land plot
The encumbrance is established voluntarily, there is the possibility of payment corresponding to the size of the transaction, that is, the party further using the easement must compensate the owner of the plot for all expenses and losses caused by the alienation, as well as compensate for the benefits that can be derived from this land.
Sample agreement on providing access to a land plot.
What is a public easement on a land plot, read here.
What is a private easement of a land plot, read the link:
In addition, throughout the entire period for which the encumbrance agreement is concluded, the person holding the easement is responsible for the land plot and undertakes to maintain the property entrusted to him in proper form. The part of the territory covered by the easement can only be used for the purpose specified in the official agreement.
The owner of the plot, in turn, agrees that the territory provided within the framework of the concluded agreement can be freely used by the owner of the territory under the conditions specified in the agreement. He must respect the established boundary points and also remove all obstacles located in the vicinity of the encumbered part of the territory that might interfere with its use.
In this case it is prohibited:
- Use land for purposes other than its intended purpose or go beyond the category;
- Carry out actions leading to a decrease in soil fertility;
- Harm the environment;
- Seize land belonging to others.
Compliance with fire and sanitary safety requirements is mandatory.
Legislative acts
To properly use your legal options, you must read the text of Article 274 of the Civil Code of the Russian Federation dated November 30, 1994 No. 51-FZ. It states that an easement is imposed to implement free passage or passage through a neighboring territory , but should not prevent the use of the land in the permitted manner.
An easement established between owners is registered legally. It does not deny proprietary rights and gives the owner of the encumbered plot the prerogative of establishing payment for the use of his territory within reasonable limits.
Art. 23 of the Land Code of the Russian Federation clarifies the terminology of public easement , which can be registered for a certain period or indefinitely.
If the property is located on federal or municipal areas, then the validity period cannot be longer than the reservation period for these plots.
It is envisaged that a citizen whose rights have been infringed will appeal to a legal authority if a certain public easement significantly complicates activities on the land plot and interferes with the interests of the owner established by law.
Mandatory registration of a limited right is required in accordance with Federal Law No. 218 of July 13, 2015 “On State Registration of Real Estate”.
Important! During the procedure for the purchase and sale of a plot, all encumbrances (not excluding the easement) are transferred, which will be indicated in the Unified State Register extract.
Experts from the Cadastral Chamber explained the rules for establishing a private easement
Let's imagine: you purchased a plot of land and built a house. It's time to install electricity and water - and suddenly there's a problem. Communications fail - the neighboring area is in the way. The problem will be solved by establishing an easement. Experts from the Federal Cadastral Chamber explained what it is, how to conclude an agreement on a private easement and how to register it.
What is an easement?
An easement is the right of a person(s) to limited use of another person's land plot. There are two types of easements: public and private.
A public easement is established in order to meet state or municipal needs, as well as the needs of the local population, without seizure of land plots. For example, if access to a public reservoir and its shoreline, a spring or other socially significant object is possible only through your site, it may be burdened with the right of passage or passage to these objects.
Private easement - when passage and access to your site is possible only through the neighboring site.
Why is a private easement needed?
- for individual access to a home, when passage or passage is possible only through an adjacent plot of land.
- to ensure water supply.
- for the construction, reconstruction and operation of power lines (communications), pipelines, highways and other linear facilities;
- to provide for other needs of the landowner.
Thus, restrictions on real estate are established in the interests of specific individuals.
How
to conclude a private easement agreement?
As a rule, a private easement is established by voluntary agreement of the parties or by court decision if the owner of the neighboring plot does not agree to the conclusion of the agreement. The provision of an easement on a land plot requires documentation. The future owner of the easement is primarily interested in this.
Before entering into such an agreement, it is necessary to determine whether the boundaries of the land plot have been established within which the restriction (encumbrance) in the form of a private easement is registered. If an easement is established on a part of the land plot, and it is not registered in the cadastral register as part of the land plot, then it is necessary to carry out cadastral work (land surveying) to form such a part. If the easement is established on the entire land plot, and it is registered in the cadastral register, then cadastral work is not required.
To draw up a boundary plan containing the information necessary for state cadastral registration about the part of the land plot that is being formed in order to establish an easement in relation to it, you must contact a cadastral engineer.
If the owner of a land plot agrees to establish a private easement, you need to conclude an easement agreement with him indicating:
- cadastral number of the land plot in respect of which the easement is established;
- information about the parties to the agreement with passport data;
- goals and grounds for establishing an easement;
- validity period of the easement (if the easement is not unlimited);
- the amount of the fee (if the easement is established for a fee);
- rights and obligations of the parties to the agreement, including your obligation, after termination of the easement, to bring the site into condition in accordance with the permitted use (for example, when laying communications, fill the trench and restore the fertile layer of soil, etc.).
Important!
The amount of payment for a private easement is determined by the parties to the agreement establishing the easement. If an agreement is not reached, then the issue of establishing an easement is resolved in 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).
Registration of a private easement
A private easement must be registered with Rosreestr. To do this, the participants in the concluded agreement (or one of them) must contact the MFC with an application for state cadastral registration in connection with the formation of part of the land plot and state registration of rights in the form of a restriction (encumbrance) of part of the land plot, attaching the necessary package of documents.
However, in the event of concluding an agreement on the establishment of an easement for a period of up to three years, the law allows the establishment of an easement in relation to part of such a land plot without carrying out cadastral work (surveying), without carrying out state cadastral registration of the specified part of the land plot and without state registration of the restriction (encumbrance) arising in connection with the establishment of this easement. In this case, the boundary of the easement is determined in accordance with the diagram of the boundaries of the easement on the cadastral plan of the territory attached to the agreement on the establishment of the easement.
When the state registrar makes a positive decision, the applicant will be issued an extract from the Unified State Register containing the encumbrances imposed on this territory.
Important!
Encumbering a land plot with an easement does not deprive the owner of the plot of the rights of ownership, use and disposal of this plot.
Rationale for establishing
The limited right of use is approved by a legislative or regulatory act of the Russian Federation, a subject of the Russian Federation or a local administration body. It meets the needs of the federal, local or individual citizens and does not require the confiscation of land from the owner.
Public encumbrance of land is required for:
- passing or crossing the territory of the earth by motor transport, including free accessibility for citizens of the coastal zone and a body of water of general purpose;
- carrying out repair actions at linear facilities and transport structure facilities;
- placement of land surveying and geodesy signs and unimpeded movement to them;
- the passage of farm livestock through the territory;
- established rules for haymaking and grazing of animals;
- temporary use of land for research work, etc.
Who can demand restrictions for passage and movement on access roads?
Submit a requirement to determine limited use under Art. 274 of the Civil Code of the Russian Federation has the right:
- owners of neighboring land areas;
- individuals to whom the land area has been inherited for life;
- individuals who have been allocated land on a perpetual use basis;
- landowners and land users who find it difficult to fully realize their legal capabilities without defining an easement for passage.
Do you have a forested area on your property? Is it necessary to establish an easement for this category of land? Don't know the nuances of the procedure?
Another article on our site will help!
How to establish an easement on a plot of land
If there is a need to formalize an easement on a neighboring plot in order to legally use it for any purpose, contact the owner of this plot. Further actions must be carried out in accordance with the instructions. Having discussed all the conditions under which it will be possible to use the lands of interest jointly, the parties must enter into a written agreement, formalized accordingly, which is also an agreement on the establishment of an easement.
The parties specify in this document all legal issues that are important to them in order to avoid the emergence of controversial situations, as well as to ensure that all obligations specified in the easement agreement are impeccably observed. It is necessary to take into account all the nuances of using land in advance in order to clearly follow the prescribed conditions in the future, without going beyond them.
Register the easement with government authorities and enter information about the encumbrance in Rosreestr. To do this, it is necessary that the agreement be drawn up in accordance with the sample and signed by both parties.
An easement can only be registered with the relevant authority by receiving an extract from the decision made by a special administrative commission.
Contact the registrar who works at the local cadastral chamber office or cartography department, or at the MFC, and submit a package of papers confirming:
- The identity of the parties who entered into the agreement;
- Availability of permission issued by the administration to establish an easement;
- The fact that one of the parties owns the site regarding which the agreement was concluded.
When accepting documents, a receipt is issued indicating the date when the paper confirming the registration of the easement will be issued. In most cases this occurs after 21 days.
Instructions: how to register private limited use?
An easement is assigned either by mutual agreement or in court if it is impossible to reach a compromise agreement.
Where to contact?
To draw up a conciliation agreement, a citizen interested in assigning a limited use right must:
- Contact the owner of the land for which, with a reasoned justification, it is necessary to approve an easement, and consider its joint use from a mutually beneficial perspective.
- Upon reaching an agreement, draw up a document agreement between the parties on the purpose of the easement in writing. The agreement is drawn up in accordance with the requirements of legislative acts:
- the data of the parties to the concluded agreement is recorded;
- cadastral and technical information data on the land allotment are indicated;
- a detailed breakdown of the issues is given, which part of the land is limited, where it is located, what are the conditions for moving on foot or by vehicle, and the terms of use are provided.
- After signing the agreement, state registration of the easement in Rosreestr is required.
- If the land area is leased from the administration, not only an agreement is drawn up, but also statements from the parties to the authority.
The administration considers the stated request within thirty days. If the decision is positive, the state registration procedure is carried out. If the answer is negative, the person in need of establishing a restriction has the right to send a statement of claim to the courts.
Important! The agreement should set out the detailed circumstances of the easement arrangement to avoid future disagreements.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 350-29-87Moscow
Drawing up an agreement
State registration of an easement is carried out on the basis of an application submitted to the local cadastre and cartography department or to the MFC. The application contains the following information:
- about the interested person filing the petition;
- about the land plot;
- about the owner of the site;
- about the reasons why the easement is claimed;
- on the conditions and circumstances of approval of limited use;
- about the absence of prohibitions for organizing an easement;
- about the list of attached documents.
Documentary materials are attached to the application:
- copies of identity documents;
- documents for the site;
- cadastral plan of the land territory with a mark on the easement;
- agreement or court order;
- permission from the administration for limited use of land;
- receipt of payment of state duty.
When registering an easement, the following points are important:
- if an encumbrance on the plot as a whole is required, then a cadastral plan is not provided;
- if the land area on which the easement will apply in the future is recognized as common property, then the consent of all owners is required.
The receipt of acceptance of the application and its annexes records the date of issue of the registration.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 350-29-87Moscow
Timing and cost
The registration period is twenty-one days. There is no financial cost to contacting your local government. It costs from five to ten thousand rubles to contact the legal service to write an agreement.
When submitting an application for registration of an easement, in accordance with Article 333.33 of the Tax Code of the Russian Federation, a state fee is paid:
- for an individual – two thousand rubles;
- for a legal entity – twenty-two thousand rubles.
The beginning of the functioning of the easement corresponds to the date of its registration in the Unified State Register.
The owner of the land territory acquires an encumbrance for its use.
During the temporary period of operation of limited use it is not allowed:
- Use the allotment inconsistently with its intended purpose.
- Harm the environment.
- Influence areas of land not included in the limited use agreement.
Procedure for establishing payment
Certain facts influence the determination of the fee:
- proportionality to the material benefit possible if the area were not encumbered by the easement;
- indicators of operating intensity;
- probable financial costs of the owner aimed at creating conditions for the implementation of the easement, for example, maintaining the road surface in the required condition.
The fee for a private limited use is specified in the text of the agreement or determined in a court order.
When calculating, the following indicators are added up:
- Amount of actual damage.
- Lost profit.
- Losses and expenses.
The amount of payment for public limited exploitation of land is prescribed in a regulatory act of the government body, provided that there is a significant difficulty in land use.
The fee is divided into:
- one-time, that is, paid in full once;
- periodic, that is, paid regularly throughout the entire period in the specified amount.
The payment method is determined:
- easement agreement,
- court order;
- regulatory legal act.
Reasons for adjustments in payment are considered:
- significant transformation of the circumstances initially taken into account when signing the agreement;
- changes in restrictions on proprietary rights up or down;
- issuance of a court resolution on fee correction.
Important! According to the Civil Code of the Russian Federation and the Land Code of the Russian Federation, changes may be made to the determination of the amount of payment for an easement during the period of its validity according to the coordinated opinion of the parties.
Sample agreement on easement to ensure passage through a land plot
In order to freely move or drive vehicles through a specific plot of land, it is necessary to establish an easement of a public nature. This action is performed in order to meet the needs of citizens living in a given area or local authorities.
In order to use land owned by another person for any purpose, it is necessary to conclude an agreement with the owner, which will confirm the establishment of a private easement. This paper provides the opportunity to travel or pass through the territory, which is prescribed in one of the paragraphs of the document.
In this situation, it is necessary to indicate the subject of the agreement, which stipulates the establishment of the easement:
- Personal data of both parties signing the agreement (full name) or name of legal entities;
- The number under which the plot, which is the subject of this agreement, is entered in the cadastral register;
- The most detailed description of the part of the land ownership that is planned to be used in accordance with the agreement;
- A list of specific actions that will be performed in this territory;
- All the grounds that gave rise to the agreement;
- The validity period of the concluded agreement, or the clause that states the unlimited nature of the agreement being concluded;
- The possibility of compensation for the granted right of use, prescribed by a separate provision in the concluded agreement.
It is also necessary to specify as precisely as possible the rights and obligations of the persons between whom this agreement is concluded. The owner of the plot should be aware that the easement agreement is an encumbrance on a plot of land that is privately owned. As a result, certain restrictions arise on the use of specific land ownership, including the transfer of rights to a plot of land. These points are mandatory specified in the concluded agreement.
Owners of different, but most often adjacent to each other, land plots can draw up such an agreement. One of the parties must have ownership of the plot, which, according to the concluded agreement, will be burdened with an easement (the owner of this plot is often called the land user).
The other party is the owner of the land, in whose favor an easement will be established on the plot that is the subject of the agreement (he may later be called the user or holder of the easement).
It will be useful to supplement the already specified information about land ownership (such as the name of the easement and its content, as well as data on land plots) with a cadastre plan on which the easement will be indicated.
When travel through the territory of land ownership is permitted, it is necessary to designate the road along which it will be carried out. Data about the trail marked on the map will make it possible in the future to avoid disagreements and conflicts that could be started by the owner of the easement, claiming that he does not know the boundaries of the territory that has come into his use.
The cost of establishing an easement rarely affects the conclusion of an agreement, since often a use agreement is concluded free of charge. According to the law, the owner of the encumbered land plot has the right to name the amount of money that must be paid in order for the easement agreement to be reached. But he may refrain from making this statement. The owner has the right to set a price, but is not obliged to perform this action.
It is best to write down the term and cost as separate clauses in the concluded contract. If these instructions are missing, the contract becomes of an open-ended and gratuitous nature.
What to do if you receive a refusal?
The problem in the matter of approving an easement is considered to be a refusal on the part of the owner of the site. The fact of payment under the contract often does not have its motivational impact.
The land owner is unwilling to agree to sign the agreement or questions a particular paragraph or sentence. In such situations, the dispute is resolved in court. The permitted possibility of crossing the site will be registered in the Unified State Register on the basis of a court order.
When going to court, it is recommended to have legal support for competently drafting a petition, since a serious argument that excludes another opportunity to get to your territory will lead to the satisfaction of the claim.
The second problem leading to refusal is technical errors in the provision of documentation. In this option, you need to enter the correct information and repeat the procedural steps.
Reasons for cancellation and termination of the agreement
The easement can be terminated, as stated in Article 276 of the Civil Code of the Russian Federation. The following facts are recognized as justification :
- There is no previously initiated need for limited use, as evidenced by the agreement to terminate the easement.
- Restricted use prevents the owner from using the land to its fullest extent, in which case a court decision will be filed.
- Physical liquidation of the allotment.
- The normative act according to which the easement was in force has lost its force.
Establishing an easement is the optimal solution to the problem of moving through the territory of another owner.
The law requires respect for the legal norms of the people around us and an understanding of the complications that arise in practical life. Solving difficulties is realistically achievable on mutually beneficial terms, and knowledge of the legislative framework will eliminate the need to seek help from the courts.
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