Expert assessment of the value of the easement

An easement is the right to limited use of someone else's land. Encumbrances are established for various purposes, for example, when there is an uneven distribution of natural goods between the owners of two plots. One owner may require the other to establish an easement for free passage to his land plot, reservoir or other public facility. Constraint can be positive or negative. A positive easement establishes the right to perform actions that do not cause damage to someone else’s land plot. Negative - imposes a ban on certain types of use of the neighboring plot.

In an easement agreement, the parties have the right to provide for the obligation of the person in whose favor the encumbrance is established to make a proportionate payment for losses caused to the owner by the restriction of rights. The amount of compensation and its type (one-time or periodic) is also fixed in the contract. provides services for assessing the easement of a land plot in order to comply with the interests and legal requirements of the parties to the agreement. Activities are carried out in accordance with the Law of the Russian Federation of July 29, 1998 No. 135-FZ.

Objects of assessment

Object of assessment: the right to limited use of someone else’s land plot or part thereof.

When is an easement assessed?

Resolution of property disputes in court.
Confiscation of a land plot from the owner for municipal or state needs.
Determining the market value of an object for the purpose of making management decisions.

If the easement is established for a limited period, then the owner of the land plot has the right to set the amount of payment for limited use according to the principle of independent reasonable determination. If an oral agreement is reached between the parties, you can do without calculations and documentation.

A public easement can be established to meet state, municipal needs, as well as the needs of the local population, without seizure of land plots. In particular, it can be introduced in the interests of residents of a certain locality, but a public easement will not be established in the interests of a specific person. To ensure such interests, you can, for example, enter into a private easement agreement.

As a rule, a public easement is established only if the interests of an indefinite number of persons cannot be ensured in any other way. Moreover, it can be installed both on private lands and on lands that are in state (municipal) ownership, including those transferred for fixed-term or indefinite use. After establishing a public easement, the owner of the land plot can sell it or otherwise transfer rights to the land. In this case, the public easement will not cease and its conditions will not change. A public easement can be established for the following purposes : - passage or passage through a land plot, including to ensure free access of citizens to a public water body and its shoreline; — placement of boundary signs, geodetic points of state geodetic networks, gravimetric points, leveling points and approaches to them; — carrying out drainage works; — intake (withdrawal) of water resources from water bodies and watering holes; — driving of farm animals; — haymaking, grazing of farm animals at a time consistent with local conditions and customs; — hunting, fishing, aquaculture (fish farming). There are also certain purposes for which a public easement is established in a special manner (based on a request from an interested party), for example, for the placement of engineering structures or roads in tunnels. Information on the establishment of a public easement is entered into the Unified State Register of Real Estate. A public easement is established by decision of executive bodies of state power or local government bodies. You have the right to go to court to protect your rights and legitimate interests if you do not agree with the encumbrance of your site with a public easement or its terms. In general, the term of a public easement is determined by the authorized body and indicated in the decision to establish such an easement. The period of public easement of plots on lands reserved for state (municipal) needs cannot exceed the period of such reservation. A public easement can be terminated by decision of the authorized body if the public needs for which it was established have ceased. It is also considered terminated from the month following the month in which the term of the public easement expired. A decision from the authorized body is not required in this case. In addition, a public easement can be terminated in court at the request of the owner of the land plot, for example, if, due to the implementation of a public easement, it is impossible to use such a plot. The term of a public easement established in a special manner has a number of features depending on the purpose of the encumbrance and the grounds for termination of the encumbrance. When establishing a public easement, you can demand a proportionate fee if it creates significant difficulties in using your site. An application drawn up in free form should be submitted to the authority that established the easement. Please note that the fee for using the site must correspond to the inconveniences and restrictions that you experience due to the public easement. It is necessary to justify the requirements and collect evidence that the use of the site has become difficult. For example, indicate the area that you cannot use for its intended purpose due to a public easement. You should also attach to the application an appraiser's conclusion, which calculates the fee for the public easement. It will confirm your arguments and help you calculate the amount of the fee. If you were denied a fee, you are not satisfied with its size, or your application was not responded to, go to court. To do this, you need to prepare a claim to establish an adequate fee and determine the order of payments. Documents supporting the claims must be attached to the claim. The fee for a public easement established in a special manner is determined taking into account the specifics . For certain purposes, a public easement is established in a special manner. Such an easement, depending on the purposes of the encumbrance, is established for the following periods, for example: · placement of engineering structures and their parts, if they are objects of federal, regional or local significance, or are intended to provide the population with utility resources, connection to engineering networks, or their transfer in connection with the seizure of land plots for state or municipal needs (for a period of 10 to 49 years); · storage of building materials, placement of temporary, auxiliary structures, construction equipment to ensure the construction, reconstruction, repair of federal, regional or local transport infrastructure (for the duration of these works); · construction of intersections of roads or railways with public railways on state-owned land plots within the boundaries of railway right-of-way (for a period of 10 to 49 years); · construction of intersections of roads or railways with roads or junctions of one road with another road on state or municipal land plots within the boundaries of the right of way of the road (for a period of 10 to 49 years); · placement of roads and railways in tunnels (for a period of 10 to 49 years); · engineering surveys in the preparation of documentation on territory planning for the placement of linear objects of federal, regional or local significance, for the construction, reconstruction of objects and structures listed in paragraph 1 of this list (for a period of no more than one year). The ability to establish a public easement does not depend on the form of ownership of the land plot. Please note that in some cases it is impossible to establish a public easement in relation to land plots provided for individual housing construction, gardening, vegetable gardening and personal farming. In particular, they cannot establish a public easement for the placement of engineering structures on such sites. An exception is, for example, cases when it needs to be installed for the operation or reconstruction of existing engineering structures. A public easement is established in a special manner by a decision of executive bodies of state power or local government bodies on the basis of a petition. The applicant can submit the application on paper in person, by mail, or send an electronic document to the email address of the authorized body. The following may apply for the establishment of a public easement for certain purposes (within their competence): 1) subjects of natural monopolies (for example, for the placement of engineering structures necessary for the activities of the subject); 2) organizing communications (for example, for placing communication lines or structures); 3) owners of transport infrastructure facilities of federal, regional or local significance (for example, for placing a highway in a tunnel); 4) organizations that filed a petition for the seizure of a land plot for state or municipal needs, for the reconstruction of an engineering structure moved in connection with such seizure. The list of organizations entitled to such a petition is indicated in paragraph 1 of Art. 56.4LK RF; 5) other persons authorized on the basis of legal acts of the Russian Federation, a constituent entity of the Russian Federation or contracts (agreements) with state authorities or local government to carry out activities for which it is possible to establish a public easement. If the procedure for filing a petition is violated (for example, it is submitted for purposes for which the establishment of a public easement is not provided, or not all required documents are attached to the petition), the authorized body returns it without consideration within five working days. The authorized body, within no more than seven working days from the date of receipt of the application, must take steps to identify the right holders of land plots and notify them of the possible establishment of a public easement. In particular, it posts a message on its official website and the website of the corresponding municipal one. If the rights to the land plot are not registered in the Unified State Register of Real Estate, then in order to participate in the encumbrance procedure you need to submit an application to the authorized body to register the rights to the plot, as well as supporting documents, and indicate the method of contacting you within 30 days from the date of publication of the message. Within five working days from the date of adoption of the decision, the authorized body sends a copy of it to the legal owner of the land plot, the holder of the public easement and to the rights registration authority, and also places the decision on its website and publishes it in the prescribed manner. In case of refusal, a copy of the decision indicating all the grounds for refusal (for example, the conditions for establishing a public easement are not met) is sent to the applicant within the same period. A public easement is considered established from the day when information about it is entered into the Unified State Register of Real Estate. The holder of a public easement and the legal holder of the land plot in respect of which the encumbrance has been established must enter into an agreement in writing. It is necessary to include, in particular, the following conditions: · details of the decision to establish a public easement; · the purpose of establishing a public easement; · cadastral number of the land plot in respect of which the agreement is concluded; · term of public easement; · the amount of payment for a public easement, the procedure and deadline for its payment; · rights and obligations of the owner of a public easement. No agreement is concluded in relation to state and municipal lands that are not encumbered by the rights of third parties. The owner of the easement sends to the owner of the land plot: · a draft agreement on the implementation of the public easement; information about its boundaries; · an assessment report to determine the amount of the encumbrance fee. These documents are sent in one of the following ways: · by registered mail: - to the address specified in the application for registration of rights, in the extract from the Unified State Register of Real Estate; - at the address of the land plot or property on it (in the absence of other postal addresses); · in electronic form - to the email address specified by the owner of the land plot or given in the Unified State Register of Real Estate; · on receipt. The right holder of the land plot sends the signed agreement to the holder of the easement, a notice of refusal to sign it, or within 14 days from the date of receipt of the project sends to the holder of the easement a proposal to conclude an agreement on other terms. Within 10 days from the date of receipt of a proposal for new terms of the agreement, the holder of the easement is obliged to send to the owner of the plot an agreement signed on new terms or a notice of rejection of his proposal. The copyright holder may challenge the decision to establish a public easement in court within 30 days from the date of receipt of the agreement on its implementation. If during this period the agreement is not concluded and the decision to establish it is not challenged in court, the fee for the easement is paid by its owner to the deposit of the notary at the location of the land plot. In this case, the owner of the encumbrance, who has paid the fee to the notary's deposit, has the right to implement the easement (in particular, to carry out the work provided for in the draft agreement) before concluding the agreement. The copyright holder can force the owner of a public easement to enter into an agreement in court. In this case, the court will determine the terms of the agreement and the amount of payment for the encumbrance, and it will be considered concluded from the moment the court decision enters into legal force. If the establishment of a public easement has made it impossible for the owner of the right to use the land plot or real estate on it for a period exceeding the period established in the decision, it is possible to demand from the owner of the public easement their redemption at market value and compensation for losses, and in some cases (for example, rent, gratuitous use) - only compensation for losses arising in connection with the encumbrance of the land plot) When establishing a public easement in a special manner, its owner, as a general rule, is obliged to pay a fee . The fee for public easement for land plots in state or municipal ownership, not encumbered by the rights of third parties, is set at 0.01% of the cadastral value of such a plot for each year of use, but not less than 0.1% of the cadastral value for the entire period of encumbrance, if it is set for three years or more. The authorized body may issue a legal act and determine the general procedure for payment for public easements in relation to certain lands. For example, such a procedure has been approved for a public easement within the boundaries of the right-of-way of highways (except for private ones), which is established for the purpose of laying, moving, rebuilding utility lines and their operation. The annual fee is 0.12% of the cadastral value of the land plot. The fee for public easement for land plots in private ownership or leased state (municipal) plots is determined on the basis of an assessment report. The amount of the fee must be determined as of a date no later than 30 days before the date of sending the agreement on the implementation of a public easement to the right holder of the land plot. Such a fee may be determined in the agreement on the establishment of an encumbrance in the form of a one-time payment or periodic payments; it is calculated in proportion to the area of the land plot and (or) lands within its boundaries. It can be deposited with the owner of the land plot or, in certain cases, as a deposit with a notary. In this case, a one-time payment is made to the notary's deposit. In case of early termination of a public easement, the payment paid is not refundable, unless otherwise provided by the agreement on the implementation of the encumbrance. In some cases, a public easement must be gratuitous, for example, when placing roads and railway tracks in tunnels. A public easement established in a special manner is terminated based on a decision of the authorized body when: - the activity for which it was established is not carried out for two or more years; - payment for a public easement in relation to state or municipal lands (land plots) not encumbered by the rights of third parties has not been paid within six months from the date of the decision on its establishment; - payment for a public easement established in relation to land plots provided or owned by citizens or legal entities has not been paid: - within six months from the date the owner of the plot receives a draft agreement on the implementation of a public easement (with a one-time payment); - more than two times in a row after the expiration of the payment period established by the agreement on the implementation of a public easement (for periodic payments); - the owner of a public easement has abandoned it. By a court decision, a public easement established in a special manner may be terminated at your request, for example, when the owner of the public easement conducts activities in violation of the agreement on the implementation of the easement and (or) laws and technical regulations.

Stages of assessing the easement of a land plot

To conduct an assessment, it is necessary to establish the qualitative and quantitative characteristics of the object burdened with the easement.
They take into account data on real estate located within the boundaries of the land plot. Assessment steps:

processing of title documents for land and real estate;
obtaining cadastral registration data;
studying information about operational and technical characteristics;
analysis of the market to which the land plot encumbered with easement belongs;
calculation of actual losses, lost profits and damages;
performing calculations of proportionate fees taking into account the received data;
the final expression of the assessment of the easement in the units established by the agreement.

The customer receives a conclusion indicating the exact figure. The assessment of the easement of a land plot, carried out in accordance with the requirements of the law, is recognized as reliable and recommended for payment to the owners of the encumbered object.

When is it necessary to register an easement and when not?

According to the general rule, which applies to all rights in force in a modern state, an easement as a property right must undergo mandatory registration.

An exception can only be if the easement in relation to the encumbered property was terminated even before the relevant agreement was signed (for example, the laying of utilities to the site through the neighboring one, on which the encumbrance was to be imposed, occurred faster than the parties prepared and signed agreement).

Another case when an established easement does not need to be registered is associated with the transfer of an encumbered land plot by inheritance. In this case, the principle of succession applies to the property, when, along with the real estate, the rights to it, as well as all imposed encumbrances, are transferred to the heir.

In all other cases, registration of such land use rights must occur.

What factors influence the assessment?

To determine the amount of the proportionate fee for the easement, actual losses are taken into account:

real damage - the difference between the market price of a land plot with and without a restriction;
lost profit - the difference between the profit that the owner could have received from using the allotment before the establishment of the easement and after it;
losses caused as a result of early termination of obligations to third parties.

The assessment results are influenced by the current situation on the real estate market in the region, the condition and purpose of the site, its location, transport accessibility, area, type and scope of restrictions imposed. The characteristics of the property matter. For example, if there is a shopping center or large warehouse complex on the site, the establishment of an easement may entail more serious losses for the owner than in the case of an empty territory.

Procedure for registering an easement

The registration procedure takes quite a long time and consists of four stages.

As mentioned above, the procedure for registering an easement is mandatory and must be carried out in the same way as the registration of other rights of ownership and use of real estate. It is for this reason, as well as because of the peculiarities of an easement as a property right, that it is necessary to pay special attention to the entire registration procedure, as well as the documents necessary to obtain the appropriate certificate.

The entire procedure consists of four parts, each of which has a significant impact on the subsequent stage:

Reception of documents. At this stage, not only documents are accepted for signature, but also an initial check of their correctness is completed.
Legal expertise. This stage is devoted to a more detailed study of all submitted documents in order to establish the legality of the transaction, as well as to exclude the possibility of challenging the signed agreement.
Amendments to the Unified State Register of Real Estate Rights. At this stage, appropriate changes are made to the data stored in the Unified State Register of Rights, and the corresponding mark is placed on the title documents based on the results of such changes.
Issuance of a certificate of easement registration. This is the final stage that completes the entire process of registering an easement as a right of encumbrance on real estate. In case of controversial situations, the certificate obtained at this stage can be considered as one of the proofs of the legality of the signed agreement.

Evaluation result

The customer receives the report in writing.
The conclusion on the valuation of the easement is certified by the signature of the appraiser and the seal of a specialized organization. The document has legal force and can be used as evidence in court. The report has 5 main sections:

general characteristics of the conclusion with information about the customer, land plot and appraisal organization;
list of standards used in calculations;
description of methods for assessing the value of an established easement;
indication of the object of assessment and the period of encumbrance;
the text of the appraiser's conclusion with a detailed description of the easement being established, the characteristics of the land plot and other data.

Types of establishing a limited right to use someone else’s property

An easement is an encumbrance established in relation to real estate, including land plots (we talked in more detail about what a land easement is and how it is formalized here).

Its essence is that other persons will be able to use the territory or part of it, for example, for travel.

Attention. The legislation defines two types of encumbrances – private and public.

They are essentially similar, but still have some differences, the main of which is the status of the parties to the transaction.

A private easement is an agreement between individuals, as a result of which a person receives the right to use a plot that does not belong to him, for example, for driving to his home. A legal entity can also be a party to an individual encumbrance.
The establishment of a public easement is determined by Article 23 of the Land Code of the Russian Federation. Its essence lies in the fact that the local government authority acts as a party to the transaction. An encumbrance can be established in relation to state or municipal land. You will find more information about how the procedure for establishing a public easement occurs here.

More detailed information about existing types of easements can be found in this material.

List of documents

A document confirming the right to dispose of a land plot.
A cadastral passport of an object or an extract from the Unified State Register of Real Estate indicating the main technical characteristics of the object and the buildings, structures and structures located on it.
A document indicating the encumbrance (if any).
Data on the amount of taxes, on the book value of the land plot.

Easement assessment is a complex undertaking that requires highly qualified specialists.
It is impossible to carry out calculations independently in accordance with the regulations. Only a specialized organization licensed to carry out professional activities can carry out an assessment of the easement of a land plot. The appraisal department has many years of experience working with objects of various types and purposes. Deep professional knowledge and experience allow us to guarantee quality workmanship. The company's liability is insured. To order an assessment service, call us or leave a request on the website.

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.

Formula for determining cost

Base loss cost

To calculate this parameter, you must use the following formula:

market value of 1 sq. m of land * total volume of alienated land as a percentage of the area of the plot

For example:

1 sq. m of land costs 3 thousand 500 rubles. 15% of the plot area is alienated (total area 30 acres, that is, 3000 sq. m, the size of the alienated area is 450 sq. m). The first part of the calculations will look like 3500 * 450 = 1,575,000 rubles.

The second part of the calculations is an equation in which we determine the cost of using the site if it is used under the right of permanent perpetual use, but the maximum period will be forty-nine years:

49*1575000=77175000 rubles. This is the amount that the initiator of the establishment of the easement would have to pay if he used the site under the right of permanent, unlimited use for 49 years.

Since the easement is established for 2 years, the amount will be: 2*77175000:49=3150000. This amount is calculated by the equation: 49 years = 100% of the cost, and the term of the easement is X% of the cost. Thus, the base cost of all losses incurred will be RUB 3,150,000.

Lost profit

Lost profits from the exploitation of a land plot are calculated as the difference in the amount of money that the owner of the plot can receive from the operation of his plot without an encumbrance and which he receives when such an encumbrance is established.

For example:

The plot without encumbrance is rented out at a cost of 80 thousand rubles per month, which will amount to 80,000 * 24 = 1,920,000 in two years. With the encumbrance, the rent will be 50 thousand rubles, and the total amount will be 50,000*24=1,200,000. The difference will be 720 thousand rubles. This amount is added to the base cost of all losses incurred: 3,150,000 + 720,000 = 3,870,000 rubles.

Real damage

Real damage is formed by establishing the difference between the market value of the site without establishing an encumbrance and with one.

For example:

A plot of 30 acres without encumbrance costs 1,050,000 rubles (35,000 rubles per hundred square meters). With encumbrance, its price drops to 600,000 rubles (20,000 thousand per hundred square meters). The difference is 450,000 rubles. The total cost of the easement in this case will be 3870000+450000=4320000 rubles.

The person who initiated the establishment of the easement will have to pay this amount to the owner of the encumbered plot. The payment procedure is established in the concluded easement agreement.

Owners of warehouses and other buildings are often interested in how to convert non-residential premises into residential ones. What package of documents will be needed to conclude a land purchase and sale transaction? Find out about it here. When purchasing land, you can get a tax deduction. You can find out how to get it here.

Conclusion

Easements of all stripes and types are a useful legal tool that allows you to regulate relations between owners, respecting the rights of each of them. It is useful in a wide variety of situations, but only in cases where the basic needs of one property owner cannot be satisfied without partially invading the property of another. The main thing is not to engage in arbitrariness and immediately contact lawyers to develop a winning strategy, no matter which side you are in the dispute.

Differences between these types

In comparison, both private and public easements can impose restrictions on the use of land . This is their main similarity. But they have certain differences, which are based on the following main features.

Establishment goals

The purposes for private and public encumbrance are formulated in the Land Code. They are associated with the need to use someone else’s site for laying communications, conducting construction work or carrying out other necessary activities.

With a public burden, a restriction is carried out in the interests of a huge number of people. A private easement covers only certain interested parties.

Base

To introduce a public restriction, it is necessary to issue a legislative or regulatory document , since the party establishing the easement is a government agency. For a private encumbrance, it is sufficient to conclude an agreement between the interested parties.

Description of the establishment procedure

The introduction of a private easement is somewhat different from a public one. Let's consider the procedures for accepting restrictions for each of them.

Public

When determining the boundaries of the encumbrance, topographic work is carried out to clarify it on the cadastral plan. These documents are transferred to the cadastre and cartography service for the formation of a cadastral extract with inclusions in the plan of the boundaries of encumbrance on the plots.

An application is then submitted to the local administration along with a land restriction plan. Review takes place within 3 months.

During this period, public hearings are held. Information about the place, date and time of hearings occurs through the media. The applicant is also notified. Materials must be made available to all interested parties. After the hearing, a decision is made on this issue. It is also published in the media.

If at this stage a positive verdict is made, then they proceed to the actual conclusion of the easement. The last stage is the registration of the right to encumber the site in Rosreestr . Only after this operation the easement is considered established.