How can a public easement be established on a land plot?

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Published: 02/03/2017

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The right to establish an easement arose in Roman law and is still preserved in the legislation of the Russian Federation. The establishment of this encumbrance is regulated by the following regulatory documents:

• Articles 274–277 of the Civil Code;
• 223 articles of the Land Code;
• article of the Federal Law of July 21, 1997;
• 9 articles of the Forest Code.

You should know that a structure, building, or land plot can be encumbered with an easement. However, practice shows that the latter option is most common. Easements on land can be private or public. Today we’ll talk about the public appearance of this encumbrance.

• What is a public easement? For what purposes can it be installed?
• When is it possible to establish and when is it not?
• Kinds
• Peculiarities
• Examples Example 1: Perpetual public easement
• Example 2: urgent public easement

What is a public easement?

According to the current legislation of the Russian Federation, a public easement is understood as the limited use of a land plot that is privately or municipally owned in the interests of municipal, administrative authorities and local governments.

In this case, the easement is used by an indefinite number of persons.

For what purposes can it be installed?

A public easement on a land plot is established in the following cases:

• travel or passage through the site is necessary;
• it is necessary to install or repair electrical or transport utility networks;
• it is necessary to install geodetic or boundary signs, as well as provide access to them;
• it is necessary to carry out drainage or install drainage equipment in a certain area;
• water intake is necessary for watering livestock or for analysis;
• grazing of livestock and storage of hay for the winter is necessary;
• it is necessary to organize hunting for non-prohibited species of animals and fishing;
• it is necessary to carry out geological excavations and study the condition of the soil;
• It is necessary to transport objects across the territory.

These reasons are not exhaustive.

When is it possible to establish and when is it not?

A public land easement can be established only if a positive decision was made at public hearings by voting.

The opinions of the following persons are taken into account:

• Residents of a certain area who may suffer damage.
• Trustees of law firms and companies whose legal address is located in close proximity to the site on which an easement may be established (service site);
• The owner of a potential service plot, as well as tenants of this land and persons who have the right of perpetual use.
• Employees of municipal authorities or local government.

However, there are cases that do not allow the establishment of a public easement. These include the following:

• the establishment of an easement does not allow the owner of a land plot to fully dispose of his land;
• the owner of the land plot received a notification to the local government authorities of a request to cancel the easement;
• the impossibility or unwillingness of the person who filed the application to organize a public hearing.

Kinds

If we talk about the duration of the easement, then two types should be distinguished:

• urgent - the encumbrance is established for a certain period, after which the easement automatically ends;
• perpetual - the easement is established for an indefinite period and can be terminated in court or when the need for the encumbrance disappears by itself.

Speaking about the purposes of the easement, it is necessary to highlight the following:

• water - guarantees the right of every citizen of the Russian Federation to use the resources of the water fund of Russia without the use of technical devices;
• forest - secures the right of a citizen to be free and unhindered in the territory of the country's forests, as well as to collect food forest resources (mushrooms, berries, herbs);
• road easement - guarantees the right of every citizen to use federal roads free of charge.

Peculiarities

An easement can be established both for the entire plot and for a specific part of the land plot.

The fact of registration of an easement on a land plot can be recorded by the following documents:

• acts of the Russian Federation;
• acts of local government bodies;
• regulatory legal acts of constituent entities (municipalities) of the Russian Federation.

In case of sale, lease or donation of a plot of land on which an easement is established, the owner must notify the other party of the existing encumbrance. Otherwise, the transaction will be declared invalid, and the owner will suffer large losses, as he will be obliged to pay compensation to the injured party for the damage caused.

The establishment of an easement should not in any way impede the exploitation of the land plot by its legal owner.

But if the owner of the land experiences inconvenience when using his plot in the usual way, he can sue and demand the purchase of the plot with the provision of similar or full compensation for the damage caused.

As a result of considering the case, the court may make one of the following decisions:

• satisfy the claim and oblige the authorized body to purchase the site and pay compensation for damage caused;
• satisfy the claim and oblige the authorized body to provide a similar plot and compensate for losses;
• satisfy the claim and oblige the authorized body to pay full compensation for losses;
• refuse to satisfy the claim.

Examples

Example 1: Perpetual public easement

The houses of two families are located in close proximity to the bank of the river that flows through the village. Every day during the period April-October, village residents graze their livestock and need to take the animals to water. There is no other approach to the river in the village. The administration of the settlement established a public water easement, according to which residents have the right to take livestock to watering in close proximity to the plots. Land owners were charged for the easement between April and October.

Example 2: urgent public easement

The village administration is carrying out gasification of the village. Participation in this event is voluntary. An urgent public easement was established on some land plots whose owners did not want to take part in the gasification program, but whose territory was required for work on neighboring plots. A month after the start of work, the easement expired.

Legislative perspective

Any legal actions related to water bodies are prescribed in the Water Code.
And issues of private property - the Civil Code of the Russian Federation. Since the issue of water resource use often affects public and state interests, this area is also regulated by Federal Laws and local regulations.

Which legal code to follow in a given case largely depends on the type of water encumbrance.

Boundaries of public easement areas

The boundary of the area of ​​public easement is the establishment of the boundaries of the site on the territory of which the encumbrance is valid.

As mentioned above, an easement can extend not only to the whole plot, but also to part of the land.

The boundaries of the easement encumbrance zone are determined through topographic and geodetic work. All costs are borne by the interested party, i.e. municipality or administration. The results are recorded in cadastral documents.

You should also know that before establishing an easement, it is necessary to check whether the land plot has been surveyed. Here the government agency deals with two types of sites:

1. Registered plots that are registered in the cadastral register.
2. Unregistered areas where boundaries have not yet been formed and cadastral work has not been carried out.

The finished land surveying project for a specific site must necessarily indicate the boundaries of the public easement zones. If there is no land surveying project yet, then you must first carry out the land surveying procedure, and then establish the boundaries of the public encumbrance.

When concluding a purchase and sale transaction, owners are often interested in how to find out the cadastral value of an apartment. What is a waiver of the pre-emptive right to purchase agricultural land, you can find out in our article. What is better: donate a plot of land or sell it? All the advantages and disadvantages of each transaction are described here.

Kinds

In easement law, there are two forms of water “encumbrance”:

• Public water easement. Every citizen has the right to use public water bodies. One subject of the agreement is the owner of the water body. The other is an unlimited circle of outsiders who have the right to general water use. This form of easement protects public and state interests. It is established on the basis of the Federal Law.
• Private water easement. The owner who has a long-term/short-term right of use is limited in his rights in the interests of third interested parties. The agreement is reached voluntarily or during legal proceedings. The subjects of the agreement can only be water users. In this case, the easement protects private interests.

Peculiarities

The imposition of a water encumbrance does not mean that the owner is deprived of his rights

ownership or use of this object. The water encumbrance passes when the owner changes, so it is protected by law.

The encumbrance itself cannot be bought and sold, pledged or transferred to other persons without legal basis.

The user of a water body on which an encumbrance has been imposed has the right to go to court to remove it if the reason for establishing the water easement is no longer relevant.

The court can also remove the encumbrance if it makes it impossible to use the property for its intended purpose.

The right of use is extended at the request of the water user in the approved manner. It is worth noting that a change in the location of a water source (for example, a river bed has deviated) does not automatically terminate the water easement.

When can the owner of a land plot demand annulment through the court?

The grounds for the right of the owner of the plot to demand termination of the easement through the court arise if the other party refuses to resolve the issue peacefully. The reasons may be as follows:

• the procedure for establishing an easement has been violated;
• there is no possibility of using the land or real estate on it for its intended purpose due to encumbrance;
• territory planning documentation was changed;
• the activity carried out by the holder of the easement violates the law;
• there is no timely payment for the easement.

On our website you will also find publications explaining the difference between a private and public easement and how to impose an encumbrance on part of a land plot.

Encumbrance algorithm

Let us analyze the algorithm for establishing water burden in a common case. For example, on private territory there is a water body - a source of water. Then water users need the right to pass through and use the “oasis” on private property.

Public case

Let's assume that the water body belongs to the public category. In this case, others

water users have all rights to it. For legal use, they only need to express their public will and establish a water easement on private territory. This allows them to make federal laws and local acts.

Residents must contact their local authorities with a corresponding application. Public hearings will be held and a final decision will be made. It will be enshrined in the appropriate document and officially registered. From this date, the public form of encumbrance comes into its own.

Local residents will be able to freely pass through and use the designated water body for their needs free of charge.

Special case

A special case is based on the requirement of third parties to provide them with a partial right to use a specific object. It is not the public interest that is protected, but the private one. In this case, a limited number of people must make a request to the owner.

Then there can be two ways of development of events:

Mutual agreement

The owner agrees to the terms and sets his own price for the rights of use granted to third parties. All nuances are specified in the contract. It is signed by the parties and registered with the authorized bodies. Only after this the water easement becomes legal. It is worth noting that the agreement also stipulates the terms for establishing the easement (fixed-term agreement), otherwise it will be considered unlimited.

Goals

Water resources are the most necessary resources for human life and farming.

The goals of establishing private and public water restrictions are related to this need:

• watering place for livestock;
• driving animals for grazing;
• water intake without the help of engineering structures and devices;
• use of water bodies for small navigation (ferries, boats, etc.).

The law also allows the establishment of a water easement for other reasons that do not contradict the law. In any case, there must be an objective and proven need for the establishment of an easement.

What costs are involved in terminating a limited right of use?

The consequences of terminating an easement may include certain costs, since this procedure is considered one of the most serious legally significant actions.

The main material investment of funds will be the payment of the state duty for registering the cancellation of the easement . Currently, this amount ranges from 500 to 2000 rubles, depending on who is the owner of the land plot - an individual or a legal entity.

If, when preparing an application and all necessary documents, you need to contact a lawyer or a notary, the services of such specialists are estimated at from 2,000 to 15,000 thousand rubles, depending on the cost of the established encumbrance (this calculation is determined by the notary price list).