In what cases and how can neighbors on SNT establish an easement?

The Supreme Court indicated how to correctly establish an easement

Established judicial practice recognizes easement as an “extreme” measure that the parties can resort to in exceptional cases if there are no other ways to ensure unimpeded access to property, explains Land Law Firm Land Law Firm lawyer Federal Rating. group Land Law/Commercial Real Estate/Construction group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) group Private wealth management 23rd place By revenue per lawyer (less than 30 lawyers) 47th place By revenue Company profile Marina Strokan. Vasily Ognev* faced a similar situation.

The cafe has closed access to the site

In 2003, he rented a plot of land in the city of Buturlinovka, Voronezh region, from the local administration for 49 years. On this land there was an old domestic building, which the tenant wanted to reconstruct and turn into an industrial premises for the repair of various equipment. It was this plan that Ognev agreed with the chief architect of the district, but was in no hurry to begin construction work. For several years the tenant did not appear on the land in Buturlinovka, and in 2021 he discovered that a cafe had been built in front of his plot.

Due to the new construction, Ognev lost free access to the building in which he wanted to organize a production facility. Then the tenant tried to negotiate with neighbor Inna Dmitrieva* to establish an easement and pass through her plot onto the leased land. But she objected to this, pointing out that Ognev could get to his property in another way. The Buturlinovsky District Court, by its decision, confirmed the validity of Dmitrieva’s position (case No. 2-818/2016 ~ M-866/2016).

But the tenant was not satisfied with this conclusion, and he filed a new claim - to establish an easement for access to his property through another adjacent plot, which belonged to the local administration (case No. 2-1034/2017 ~ M-1038/2017). The city authorities submitted documents to the court that showed that the plaintiff had not used the leased land for many years: it was overgrown with trees, and the household building had partially collapsed during this time. In addition, on one side of the disputed area there is an ownerless brick fence in which a gate could be installed to allow access to the production premises, the defendant noted. The court did not order additional examinations and, based on the papers presented, decided to refuse Ognev. The appeal left this decision unchanged (case No. 33 –2380/2018).

The Supreme Court found several violations by lower courts

The tenant did not agree with the conclusions of the lower authorities and challenged them in the Supreme Court. The Supreme Court noted that when resolving the issue under discussion, the court should proceed from the need to ensure a balance of interests of the parties. That is, the conditions should be the least burdensome for the owner of the site in respect of which the easement is established.

In the situation under consideration, the courts should have examined whether the plaintiff could protect his rights in another way and whether the tenant of the plot has the right to demand the establishment of an easement under the current law, the Supreme Court emphasized (case No. 14-КГ19-3). The Judicial Collegium for Civil Cases of the Supreme Court indicated that the lower authorities had to study in more detail the situation with the brick fence: who owns it, on whose property it is located, whether it will be possible to install a gate in it and on the basis of what the plaintiff can take any actions with this property.

Such information can only be obtained from an expert opinion, since the court is not an expert in the field of land management, but no studies were ordered as part of the process, the Supreme Court noted. Taking into account the above circumstances, the “troika” of judges, chaired by Vyacheslav Gorshkov, canceled all acts of the lower courts and sent the case back to the first instance for a new trial.

“Pravo.ru” experts: “Expertise in such cases is mandatory”

In such situations, it is dangerous to follow the lead of tenants, believes MGP Lawyers partner MGP Lawyers Federal Rating. Group Bankruptcy (including disputes) Group Land Law/Commercial Real Estate/Construction Group Corporate Law/Mergers and Acquisitions Denis Bykanov: “The owner is already under pressure from the institution of forced easement, and if the right to claim is also granted to tenants, then this reduces the property even more” .

In fact, the court violated the adversarial principle and deliberately gave preference to the seemingly stronger position of the Administration, which presented the listed documents. Thus, the conclusion of the lower authorities about access to the site through the installation of gates in the fence was based on a superficial examination of the circumstances.

Marina Strokan

According to the expert, the basic right of the tenant is that in any unclear situation he can ask the landlord to file an appropriate claim, and not try to appropriate the rights of the owner: “This approach, in general, is enshrined in the law.”

How to establish an easement

— Find out the need for its installation as such;

— Prove the impossibility (difficult nature) of access to the property;

— Developing the least burdensome option for establishing an easement;

- They execute the decision - they enter the coordinates of the boundaries of the easement into the Unified State Register of Real Estate, and register the encumbrance on the land.

In decisions on such disputes, the court must determine all the conditions of the easement, including the route of travel and passage, explains Veronica Velichko from Avelan Avelan Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group Dispute resolution in courts of general jurisdiction Profile. This is why it is necessary to appoint an examination in such cases, emphasizes partner Aronov and partners Aronov and partners Federal Rating. group Family and inheritance law group Pharmaceuticals and healthcare group Criminal law group Dispute resolution in courts of general jurisdiction Company profile Anton Emelin. In a word, the presence of alternative ways to access the site should be a subject of examination, and not a hypothesis of the court, Velichko emphasizes.

In our practice, there was a case when the chairman of the arbitration court held an on-site court hearing, examined all travel options, described them and, comparing them with the diagrams presented by the parties, chose the best option.

Ainur Yalilov, partner Shaimardanov and Partners Shaimardanov and Partners Regional rating.

Problems often arise at the stage of execution of a court decision, when it is necessary to enter information about the easement into the Unified State Register of Real Estate, warns Strokan. According to her, this is usually due to the fact that during the examination the coordinates of the boundaries of the easement are incorrectly determined.

*names and surnames of the participants in the case have been changed

• Alexey Malakhovsky

• Supreme Court of the Russian Federation
• Civil process

Easement in relation to a site in state or municipal ownership

Chapter V.3 of the Land Code of the Russian Federation (“Establishment of an easement in relation to a land plot located in state or municipal ownership”) was introduced by Federal Law dated June 23, 2014 N 171-FZ.

Now the Land Code provides for the possibility of establishing an easement in relation to a land plot that is in state or municipal ownership). If such a plot of land is provided for permanent (indefinite) use, lifelong inheritable possession, or for rent or gratuitous use for a period of more than one year, in order to conclude an agreement on the establishment of an easement, it is necessary to contact the land user, landowner, tenant (clause 1 of Article 39.24 ZK RF).

What can these restrictions do?

An easement establishes the right to use, to one degree or another, someone else’s property or land. The landowner is not deprived of his property rights. He only has a restriction of his rights on a certain territory of the plot that belongs to him. Establishment of the fact of encumbrance is considered from the date of registration of the agreement in Rosreestr.

The Land Code defines two main types of easement: public and private.

Public easement

A public easement is characterized by the fact that one of the participants in concluding an agreement is a government body and the purpose of its establishment is considered to be the protection of the interests of not one person, but a huge number of people.

Article 23 of the Land Code, paragraph 3 defines the grounds under which the use of a public easement is possible:

• passage or passage to a water body;
• the ability to carry out repair work on utility infrastructure;
• drainage works;
• cattle drive;
• haymaking and grazing in seasons established by local natural conditions;
• carrying out hunting and fishing;
• carrying out research and survey work.

Private easement

This type of restriction is based on the conclusion of a document between two private parties. They can also be legal entities. In cases where the grounds for establishing an easement have disappeared, it must be terminated by an application from one of the parties.

Examples of private encumbrance:

• when carrying out work on the territory of a nearby site, a passage or passage is required;
• running a water supply or sewerage system through the territory of a neighboring plot;
• conducting electrical networks.

Legislative acts on which these encumbrances are based

Information about rights limiting the use of land is contained in the Civil and Land Codes.

Article 274 of the Civil Code introduces the main characteristics of an easement, when and under what conditions it is established. Article 275 of the Civil Code states that the rights under restrictions when the owner of a plot changes remain with this land. The grounds for termination of the easement in Article 276 of the Civil Code are considered.

Article 23 of the Land Code lists the situations in which public encumbrance is applied. Types of restrictions are considered: urgent and permanent. The conditions for requiring an appropriate payment for the provision of inconveniences on the land plot are also stipulated.

The same article, paragraph 9, establishes the condition for the need to register an easement with a government agency.

Article 39.25 of the Land Code indicates the clauses that are included in the concluded agreement:

• number of the plot in the cadastral chamber;
• personal information about the parties entering into this document;
• goals and conditions for establishing an encumbrance;
• term of easement;
• rights and obligations of the person in whose interests the restrictions are imposed.

The procedure for drawing up a document establishing an easement is described in Article 39.26 of the Land Code.