The legislation provides for various options for the right to a land plot, including types that provide only the possibility of temporary use of the land. One of these rights is an easement. In simple words, what does this word mean: a right such as an easement is a limited real right to a certain piece of land. Further in the text it is explained what an easement is and for what purposes it is established.
Definition: what is it in simple terms and what is it for?
The procedure for establishing this right is fully regulated at the legislative level.
Thus, the meaning of the word easement is the right of a person who is not the owner of the land to use a certain plot of land in a limited manner (Article 23 of the Land Code of the Russian Federation, Article 274 of the Civil Code of the Russian Federation). Most often, the essence and need for its design arises to ensure passage or passage through a land plot. Often, such authority is required to carry out repair or construction work, reconstruction or operation of facilities located on a land plot (we tell you more about the grounds on which an easement may arise here).
- If a person needs to use a plot of which he is not the owner, the transfer of a limited right to land occurs by agreement. This type of agreement between two persons is a private easement.
- If the right to use land is established in the interests of the state or local authorities, then in this case the easement is considered public.
A detailed comparison and difference between public and private easements is provided here.
The right to use land can be obtained for the following purposes:
- passage or passage through the site;
- carrying out drainage works;
- water intake if there are water bodies on the site;
- provision of agricultural needs (grazing livestock, driving animals, making hay, etc.);
- laying power lines, water pipes and other amenities;
- carrying out repair or construction work.
The purpose can be stated in the agreement between the parties to clearly indicate why the right to use the land is granted.
Difference from land lease
Another type of right to limited use of a land plot is lease. A land easement has a number of differences from a lease:
- can be established either voluntarily or compulsorily, and a lease agreement can be concluded solely by voluntary agreement between the parties;
- provided by a court decision, by concluding a written agreement between the parties or on the basis of a regulatory act, and to transfer the lease of an object, the parties simply enter into an agreement between themselves;
- most of the rights remain with the legal owner of the land, and when renting, the bulk of the rights to the plot are transferred to the tenant;
- can be established either on a paid or free basis, and a lease agreement always implies payment for the use of property, since the transaction is paid;
- the tenant has the right to make a profit from the land plot, but the easement does not provide for such an opportunity.
Both rights can be obtained for one plot. Thus, an easement can be established on a leased plot of land, but in this case a violation of the rights of the tenant cannot be ruled out.
We discussed in more detail all the differences between lease and easement in this article.
The procedure for establishing an easement
For the varieties considered, the procedure differs in algorithm. A private easement is established by agreement of two parties or through a court. There are many stakeholders involved in a public easement decision. And the administrative body acts only as an instrument for formalizing the procedure.
Establishment of a private easement
A private easement is established at the initiative of an interested party, which may be:
- a property owner who needs to place his object on a site that does not belong to him;
- the customer (performer) of the work who needs to use the territory of someone else’s site;
- a neighbor who needs to carry out major repairs to the facade of the house or the fence on the side of someone else's property.
If the parties agree on interaction, they will be able to expand their capabilities on mutually beneficial terms. To do this, the interested party approaches the owner of the land plot with a request to provide a share of the land for temporary or permanent use. If the landowner agrees, the parties will need to draw up an agreement in the form of a contract certifying their good will.
How to draw up an easement agreement
The contract is drawn up in a relatively free form (you can use the sample as a guide). First they write:
- Title of the document;
- date and place of compilation.
This is followed by the body of the document, consisting of provisions arranged in paragraphs and subparagraphs throughout the text. The text begins with the subject of the agreement, which defines its parties: the Owner and the User. The characteristics of the land plot are also given here, indicating:
- categories of land and type of permitted use;
- total storage area;
- site location.
The main part contains detailed, but succinctly introduced and legally correct content of the procedure for the alienation of part of the land plot:
- what area of the site is limited;
- its location on the site;
- what work is planned to be carried out;
- what objects to locate;
- term of use;
- return conditions.
The text of the agreement specifies the rights and obligations of the parties and the terms of payment.
The parties first determine the location of the alienated share directly on the site and on the boundary plan. For land areas of significant size or significance, it is envisaged to draw up a land survey project. The contract should be accompanied by a site plan with a highlighted part or indicate its dimensions and coordinates. After the document is drawn up, the parties’ signatures are affixed and their details are entered.
Registration of the agreement
Clause 9 of Article 23 of the Land Code of the Russian Federation determines that the easement procedure is subject to state registration. To do this, the parties need to simultaneously contact the multifunctional center (MFC) or a branch of Rosreestr. First, the recipient of a share of the plot writes an application for registration and pays a state fee.
The following documents are submitted to the registrar:
- passports (originals and photocopies);
- title document for the land plot;
- certificate of ownership or extract from the Unified State Register of Real Estate (USRN);
- agreements in triplicate;
- if the property is shared - notarized consents from the co-owners;
- if acquired in a joint marriage - notarized consent of the spouse;
- land surveying project with a plan for allocating the alienated share.
These documents are handed over against signature. After 10 days, the parties can come up to receive the agreement with a registration mark and an extract from the Unified State Register of Real Estate, which indicates the imposed encumbrance.
An extract from the Unified State Register confirms the right of the owner of the easement to use the encumbered plot
For what period is the contract concluded?
The contract is concluded for the period required to carry out the planned work. If the recipient of the rights does not meet the deadline, it can be extended by an additional agreement.
In certain situations that require permanent use of the site, the contract is drawn up for an indefinite encumbrance. In this case, the conditional term of the contract is equal to 49 years of use of the allocated part of the memory.
How is payment calculated?
In order to establish the current cost of encumbering the site, it is necessary to carry out calculations. They consist of the following parameters:
- The amount of real losses, that is, the market value of the alienated area, based on the period of use.
- Real damage experienced by the owner in the form of inability to use the memory for its intended purpose. And also in case of damage to one’s own property for the sake of encumbrance.
- Lost profit. This is, for example, the cost of the crop that a person could grow and sell when cultivating this part of the plot.
To obtain data on the amount of real losses, you need to carry out the following calculations:
- Determine the market value of the alienated share: find out the unit value of land in the cadastral quarter (per 1 m2) and multiply by the number of meters.
- Take the resulting product as 100%. This amount is equivalent to a lifetime perpetual easement or a period of 49 years. To keep things even, let's round this number to 50.
- In other cases, establish a proportionate percentage of use. For example, if the contract is drawn up for 10 years, then it will be 20%.
- Calculate the basic cost of using the memory using the formula: divide the cost of the alienated share by 100 and multiply by the number corresponding to the percentage received.
- This is how we get the base cost, which plays a major role in pricing.
Actual damage and lost profits are additional parameters; they are summarized based on specific indicators and are different in each specific case. For example, the actual damage may be the cost of a building that had to be destroyed to get to the user's site. And the lost profit is the market value of 100 kilograms of apples that the owner could have collected from the apple tree he cut down.
The owner of the encumbered plot has the right to receive payment for its use
In practice, I have often encountered the fact that parties try to operate with different price options. If they cannot come to an agreement, you need to call an independent appraiser who has reliable data and calculation formulas approved by law.
Registration fee
According to the official website of Rosreestr, all encumbrances, including easements, require payment of a state fee of 350 rubles. At the same time, no distinction is made here between an individual and a legal entity, as is the case when registering property rights. Both pay the same amount.
Establishment of an easement in the absence of consent of the parties
If the owner refuses to allow access to his plot, then the person claiming to use it should file a civil lawsuit in the district court at the location of the land plot. But to go to court, the following conditions are necessary:
- the issue could not be resolved in any other way;
- the encumbrance is a matter of substantial necessity for the plaintiff;
- the defendant's refusal to use the site is detrimental to the plaintiff.
Therefore, you must first notify the defendant of your intention to file a claim. The notice must be delivered against signature. Since most defendants do not want to sign such documents, notice can be sent by registered mail. When sending, be sure to fill out:
- inventory of attachments;
- notification of receipt of letter;
- shipping receipt.
After the letter is received by the owner of the land plot and a notification is received, you can go to court.
You need to go to the court office and file a statement of claim, in the text of which you need to inform:
- Due to what circumstances was it necessary to establish an easement?
- Why can’t the plaintiff resolve the issue without establishing an encumbrance?
- When and under what circumstances did he turn to the defendant with a request to use part of his plot.
- What did the owner of the plot answer and on what grounds did he give the refusal? Why does the plaintiff consider the reason for the refusal to be unlawful?
The application includes the following requirements:
- Admit the claim in full.
- Allow encumbering the land plot with an easement.
Finally, you must sign and provide a list of attachments, which includes documents confirming the validity of the claim. They must show that the plaintiff really has no choice but to use the defendant's site.
After this, the situation will be at the mercy of the court's decision. His decisions may not always be on the side of the plaintiff. It all depends on how the magistrate sees this situation. There are many examples in judicial practice when the court made a completely unexpected decision.
Video: public easement as a way to resolve disputes
An example from judicial practice
FKUZ "Sanatorium "Progress" of the Ministry of Internal Affairs of Russia" filed a claim with the Khostinsky District Court of the city of Sochi against E. V. Oleynikova for the elimination of violations of the owner's rights, for the dismantling of a metal staircase on the territory of the sanatorium land on a retaining wall, which is federal property, leading to her summer cottage.
From the court decision
https://sudact.ru/regular/doc/KSyIQPa9JKHR/
Based on the fact of the situation, it was reported that the defendant installed a metal staircase on the side of the sanatorium site for her own use. During the consideration of the case, she filed a petition with the Federal Property Management Agency to establish an easement. In fact, she reported that there is no access to one of the country premises other than the established one. The defendant’s plot turned out to be sandwiched between other people’s plots; local authorities could not have foreseen this when distributing land. But the justifications were not taken into account and the counterclaim for the establishment of an easement was denied.
The claim of the Federal Health Institution “Sanatorium “Progress” of the Ministry of Internal Affairs of Russia” against E. V. Oleinikova for the elimination of violations of the owner’s rights is satisfied. Oblige Oleynikova E.V., within five days from the date the decision enters into legal force, to vacate the land plot and bring the said land plot to its original condition. Oblige Oleynikova E.V., within five days from the date the decision enters into legal force, to vacate the real estate object “Retaining Walls of the Sanatorium” letter LVI, 345 meters long, cadastral No., from the located metal staircase structure, by dismantling and removing the unauthorized installed metal staircase structure on the specified property and bring the said property to its original condition. Prohibit Oleinikova E.V. from performing any actions related to the assembly and installation of staircase structures and other structures on the real estate facilities of the Federal Health Institution "Progress Sanatorium" of the Ministry of Internal Affairs of Russia.
The claim of Oleynikova E.V. against the Federal Health Institution “Sanatorium “Progress” of the Ministry of Internal Affairs of Russia” for the establishment of a permanent private easement in relation to the land plot is to be refused.
From the court decision
https://sudact.ru/regular/doc/KSyIQPa9JKHR/
Establishment of a public easement and the procedure for holding public hearings
If the land is encumbered by the administration, the algorithm of actions for the owner is simplified - he has the right not to attend the hearings and not to draw up any papers. Such a decision can be made without him. But he has the legal right to attend all events and defend his property interests with all his might.
The step-by-step algorithm for establishing a public easement is as follows:
- Acceptance of a collective statement or petition from citizens of a locality regarding the need to include land in use, indicating their location and justification for the requirements.
- Consideration of the accepted application.
- Setting a date for public hearings.
- Meeting and holding public hearings, making decisions on the issue on the record.
- Drawing up an extract from the protocol, according to which an administrative act on the assignment of an encumbrance will be drawn up.
- State registration of public easement.
In addition to this algorithm, there are special norms and rules for conducting public hearings. They are mainly carried out according to an established plan, which is posted on the official website of the locality administration. Unscheduled convening is also allowed. In both cases, the public must be informed both of the convening of the hearing and of any changes being made. Information should be provided on the official website and in local media: newspapers and relevant television channels.
On the appointed day, a meeting of the authorized commission takes place, which considers the issue on the agenda. All present citizens and competent specialists have the right to speak on the issue under consideration. Each statement is entered into the protocol. Based on the totality of statements and on the basis of the application of the provisions of the law, a decision is made, which must be presented on the official website of the administration and in the local media immediately after adoption.
After the decision is made, the plan of the site with a public easement appears in the public domain
If the owner of the site believes that his property interests have been unlawfully violated or, on the contrary, the public is not satisfied with the result of the hearings, it can be appealed in court within 10 days after the decision is made.
Legal regulation: concept and characteristics in civil and public law
The concept of easement and the procedure for its establishment in relation to land plots is disclosed in a number of legal acts:
- Private view is regulated by civil law. This issue is addressed in Art. of the Civil Code of the Russian Federation. 216, art. 274-277.
- Public - established in accordance with the norms of the Land Code of the Russian Federation (Article 23, Article 39.23-39.26). More information about how a public easement is established can be found here.
The right to limited use of forest areas is established in compliance with the norms of the Forest Code of the Russian Federation (Article 9 of the LC RF).
The encumbrance can be used when surveying the territory, as well as for carrying out construction work, which are regulated by the Town Planning Code of the Russian Federation (Article 43, Article 51 of the Civil Code of the Russian Federation). The following laws are also taken into account:
- No. 218-FZ “On state registration of real estate”;
- No. 126-FZ “On Communications”;
- No. 113-FZ “On the Hydrometeorological Service”;
- No. 4-FZ “On land reclamation”;
- No. 123-FZ “On livestock breeding”;
- No. 102-FZ “On mortgage (real estate pledge)”.
Types of encumbrance
According to Art. 23 of the Land Code of the Russian Federation, easements are divided into two types - private and public:
- The establishment of the first occurs in accordance with the norms of civil legislation. The need for it arises if the person who owns the property cannot perform the work listed in Art. 274 of the Civil Code of the Russian Federation, without using a site owned by another person. When this type of limited use of land is established for a third party, the owner of the territory himself continues to own, use and dispose of the land.
- The establishment of a public easement occurs on the basis of a law, a regulatory act of the Russian Federation or any subject of the country, a local government body, if the need to use the territory arose in the interests of the state. A public easement can be granted only in the cases listed in paragraph 3 of Art. 23 of the Land Code of the Russian Federation.
More information about existing types of easements and their features can be found here.
Main differences
A public institution is characterized by its gratuitous nature. When concluding a private contract, there is no encumbrance fee. It can arise only in individual cases established by law. For other situations, the owner of the plot can exercise his right to demand monetary compensation for the encumbrance.
But, it may be absent if the landowner refuses it. A public easement is issued on the basis of the introduction of restrictions against the background of state or municipal interests. In addition, a large number of persons and private enforcement of civil rights may be involved here.
The grounds for imposing encumbrances may also differ from each other. Regarding public encumbrances, they are based on regulatory documents, and private ones, on the requirements of a specific landowner, group of persons or company.
Features regarding lands in private and municipal ownership
The need to provide limited use rights may arise both for private land territory owned by a legal entity or individual, and for a site owned by the state.
- If the land is privately owned, then only the owner himself can enter into an agreement to transfer the use of a certain plot to a third party. Land tenants, landowners or temporary users of the site do not have such powers.
- If the land is in federal ownership, then the Rosimushchestvo acts as the owner (Government Decree No. 432 of 06/05/2008).
Both private individuals and the Federal Property Management Agency can demand payment for the use of land:
- In the first case, the funds received will be the personal income of the owner.
- In the second case, the funds will go to the federal budget.
The owner of the land can independently set the amount of payment for work on his private territory. If the land is owned by the state or municipality, then the amount of payment is established:
- in accordance with Decree of the Government of the Russian Federation No. 1461;
- in accordance with the procedure in force in a certain subject of the Russian Federation regarding lands owned by such subject;
- in accordance with the procedure established by local authorities for municipally owned territories.
- If municipal property has been provided for permanent, indefinite use for a period of more than 1 year, then the land user also has the right to enter into an agreement that the land plot may be encumbered.
- If the territory is transferred for use to a municipal or state enterprise, then the conclusion of an agreement requires written permission from the government authority in charge of the enterprise.
If a person uses a municipal land plot as a tenant, then when a restriction on the use of land is established, its term should not exceed the term of the current lease agreement.
Case studies
Citizens often go to court to challenge the imposition of an easement on a land plot or to initiate the conclusion of such an agreement. The result largely depends on the correctness of the statement and the presence of a good evidence base.
Example No. 1
Individual entrepreneur A filed a claim with the district court against private company B to cancel the perpetual easement on the land. During the trial, it was revealed that an underground water supply network runs through neighboring areas.
An engineering unit was located on the plot owned by IP A. Maintenance of equipment by private company B significantly limited the rights of person A to use his territory.
The examination showed that the engineering project could be moved to a plot of land owned by Company B. As a result, the judge decided to cancel the easement and ordered the private company to change the location of the work.
Holders
The legislation establishes that holders of easements are persons who have received the right to limited use of territory owned by another person (Article 5 of the Land Code of the Russian Federation). In other words, owners are participants in land relations in whose favor an easement has been established.
Most often, these persons receive the right to use only a certain section of the territory; cases where the owner is granted the use of the entire territory are quite rare.
As a rule, the owner is the owner of the neighboring plot, but in general the remoteness of the plots does not matter.
Who are the easement owners and what are their rights, read here.
Why was this right invented at all?
There was a time when no one knew about easements except lawyers. Although it was enshrined in law back in the Soviet era. This is because the plots then were flat, had strict boundaries and their own entrances and approaches.
Over time, land began to be bought up in huge quantities, hundreds of dacha communities appeared, plots began to be divided and merged . Some dachas now have such vast properties that they really block out everything possible.
Then the disputes began - one cannot get to his house, the other needs to install water supply, and it is impossible to do this without “running into” someone else’s property. Someone completely blocked the only public beach with a fence.
In such disputes, an easement precisely determines who has the right to use a plot that is not theirs and who does not.
How to apply?
A private easement is established on the basis of an agreement, the parties to which are the owner of the land and the person demanding the right to use the site. Such an agreement states:
- purpose of providing the site;
- deadlines;
- amount of fee for use.
If the parties cannot agree on their own, then the decision is made in court. The plaintiff (the person who needs to obtain the right to use) submits an application to the court to establish an easement on the land plot.
The basis for registration of a public easement are legislative acts adopted by federal, municipal or regional authorities in the interests of the state. The decision to establish the right to limited use of the territory is made at public hearings, and agreement with the owner or owner of the land plot is not required.
You will find more information about the rules for registering an easement in a separate material.
Useful video
Lawyers say that you can understand a term only by carefully studying its nature, origin, learning how legal experts apply it in practice, and explaining the concept of easements in land law. A detailed analysis of this concept with specific live examples can be seen in this useful video.
The expert claims that the right of limited use of land in question is a reliable and good tool for effectively regulating conflict situations between different owners. Although, according to the expert, there are some shortcomings in the current legislation.
What does state registration mean?
For the transaction to have legal force, the agreement on the provision of an easement must be registered in the Unified State Register of Real Estate. Accordingly, to carry out this procedure, the land area or part of it must be registered in the cadastral register.
The basis for registration is an agreement between the parties, a decision of municipal authorities or a court.
Registration of encumbrance is not always required. An exception is cases when the right of limited use is established in relation to land located in municipal or state ownership for a period not exceeding 3 years, as agreed upon by the parties in the relevant agreement (clause 4 of Article 39.25 of the Land Code of the Russian Federation).
We talk in more detail about how easement registration occurs here.
Pay
An easement can be either paid or free. The legislation does not prohibit the owner of a land plot from demanding a proportionate payment from persons who have the opportunity to use the territory (clause 12, clause 13 of Article 23 of the Land Code of the Russian Federation).
If the parties have agreed on payment for the use of the territory, then the corresponding clause should be included in the agreement. The fee must be reasonable. It may include:
- expenses associated with the implementation of the right of use;
- the cost of creating a security and access control regime, etc.
Payment can be made one-time or in installments. The agreement can also be concluded free of charge if the parties have reached such a decision.
We wrote in this material how an easement is usually assessed, and here you can find out how the size and procedure of payment for the use of an easement is determined.
For what period is it set?
According to the term, the encumbrance for the use of land can be:
- Urgent (temporary) – the period is established in the document on the basis of which the right of use was established.
- Indefinite (permanent) - established on a permanent basis and terminates upon the adoption of the appropriate court decision.
The temporary agreement automatically ceases to be valid after the end of the period specified in it.
Read about what the term of an easement can be here, and from this article you will learn about the existing types of easement, including classification by terms.
Can it be indefinite?
The agreement may not indicate a specific period of use of the land plot. Such rights to limited use of memory are called perpetual.
They cease to operate solely by court decision. The basis for filing a claim in court to remove the encumbrance may be a violation of the rules for using someone else’s land plot or the absence of circumstances that led to the establishment of the right to use the land (we talked about the grounds for terminating an easement here). If there is a need to use someone else's land, the law allows you to formalize the right of limited use by establishing an easement zone. Depending on the circumstances, it may be:
- private and public;
- urgent and unlimited;
- paid and free.
In all cases, the establishment procedure is regulated by legal norms, only upon compliance with which the transaction acquires legal force.
