Supreme Court: establishing an easement on a land plot

On April 26, the Supreme Court of the Russian Federation published a review of judicial practice in cases of establishing an easement on a land plot. We will share the main findings.

You will find out which court to apply to establish, change the conditions or terminate the easement. We will explain what to do if the Unified State Register of Real Estate does not contain information about part of the land plot encumbered by an easement.

Formation of a land plot under a blocked building

What is an easement and how to get one

We have already told you that an easement is the right to limited use of someone else’s real estate (Article 1 N 122-FZ). This right is transferred to another person by right of encumbrance.

The right of encumbrance is otherwise called the right of limitation. Its definition is given in paragraph 1 of Article 1 of the Law on State Registration of Rights. The law or authorized bodies establish restrictions for the land owner in the exercise of ownership or other proprietary rights to a land plot.

Residents of neighboring houses may need an easement in order to lay communications through someone else’s land and use them. An easement may exist independently of the use of the land plot.

If you have received an easement, this does not mean that the plot has passed into your possession and its owners have lost the right to use it (Clause 2 of Article 274 of the Civil Code of the Russian Federation). The owners continue to use it, but for a specific purpose, which is established by contract or agreement.

To obtain an easement, you need to obtain the consent of the owners of the apartment complex. A simple majority of votes at the OCC will be sufficient. After this, an agreement or contract is concluded. This document is included in the technical documentation of the MKD.

Read more about what an easement is and how to get one

To establish such an easement, enter into an agreement on it. Include in the agreement the subject, amount of payment, term and other conditions that you consider necessary. If an easement agreement has not been reached or there are disagreements regarding its terms, go to court. The court will establish an easement only if without it you cannot use your property and if it does not prevent the owner of the encumbered lot from using it according to the permitted use. If an easement is established by a court, it determines its terms. As a general rule, an easement must be registered in the Unified State Register of Real Estate in the manner prescribed by law (clause 3 of article 274 of the Civil Code of the Russian Federation, clause 17 of article 23 of the Land Code of the Russian Federation).

1. When and in what order can a private easement be established on a land plot? If you cannot use your property without using someone else’s land plot, then a private easement can be established on it. In particular, an easement may be needed: · for passage and passage through a neighboring plot of land; · construction, reconstruction and (or) operation of power lines (communications), pipelines, highways and other linear facilities; · ensuring water supply and reclamation. You can demand the establishment of an easement if you own real estate on certain real rights, for example: on the rights of ownership, lifelong inheritable possession or permanent perpetual use (clauses 1, 4 of Article 274 of the Civil Code of the Russian Federation). If the owner of the land plot agrees to establish a private easement, enter into an agreement with him on this. If the site is publicly owned, enter into an agreement with the person to whom it is allocated based on the right specified in the law (Clause 6 of Article 274 of the Civil Code of the Russian Federation, Article 39.24 of the Land Code of the Russian Federation). If you cannot reach an agreement, then to establish an easement you need to go to court. 2. How to draw up an agreement on establishing an easement on a land plot Be sure to include its subject in the agreement, that is, indicate that the person is granted the right to limited use of someone else’s land plot (easement). Otherwise, the agreement to establish an easement, as a general rule, is considered not concluded (Clause 1, Article 432 of the Civil Code of the Russian Federation). If an easement is established in relation to a site located in state or municipal ownership, include in the agreement the conditions specified in paragraph 1 of Art. 39.25 of the Land Code of the Russian Federation. These include: 1) cadastral number of the land plot in respect of which it is intended to establish an easement; 2) the registration number of the part of the land plot in relation to which the easement is established, with the exception of a number of cases, for example, if the easement is established in relation to the entire land plot; 3) information about the parties to the agreement (full name, OGRN, TIN); 4) the goals and grounds for establishing an easement; 5) duration of the easement; 6) fee size; 7) the rights of the person in whose interests the easement is established to carry out the activity for the purpose of ensuring which the easement is established; the obligation of the person in whose interests the easement is established to pay a fee; 9) the obligation of the person in whose interests the easement is established, after termination of the easement, to bring the site into condition in accordance with the permitted use. It is advisable to include these conditions in the agreement in the case of establishing an easement in relation to a plot of land that is privately owned. Moreover, some of these conditions will be needed to register an easement, for example, conditions on the term of the easement, on the person in whose favor the easement is established, etc. (clause 123 of the Procedure for maintaining the Unified State Register of Real Estate). The conditions of the easement should be the least burdensome for the use of the land plot in accordance with its intended purpose and permitted use (Clause 8 of Article 23 of the Land Code of the Russian Federation). 3. How to establish a private easement on a land plot in court To do this, you need to prepare and submit to the court a statement of claim for the establishment of a private easement. In this case, there is no need to follow the pre-trial procedure, since the law does not provide for this. However, if you formalized your proposal to the owner of the land plot to establish an easement in the form of a demand (claim), it must be attached to the claim. This is due to the need to confirm that an easement agreement was not reached before the trial (Article 65 of the Arbitration Procedure Code of the Russian Federation, Article 56 of the Code of Civil Procedure of the Russian Federation). When going to court, it is important to remember that an easement will be established only if there are no other options to satisfy the needs of the plaintiff (clause 1 of Article 274 of the Civil Code of the Russian Federation). An easement should be your only opportunity to ensure the normal use of the property. If the person requesting the establishment of an easement cannot fully use the property only because of his actions, and not for objective reasons, the court will refuse to establish an easement. Please note that the court will not establish an easement if, because of it, the owner of the encumbered plot will not be able to use his land plot in accordance with the permitted use. If the court satisfies your request, it will determine the conditions for establishing the easement, in particular the condition of payment and duration. 3.1. How to draw up and file a claim for the establishment of a private easement Draw up a claim in accordance with the general requirements for content and form established by Art. 125 of the Arbitration Procedure Code of the Russian Federation or Art. 131 of the Code of Civil Procedure of the Russian Federation, depending on which court (arbitration or general jurisdiction) you are applying to. Justify why it is necessary to establish an easement and how its absence deprives you of the opportunity to use your own property. Provide in the claim information about the area in respect of which you want to establish an easement, the purpose of establishing the easement, the amount of the proposed fee, the duration of the easement and other conditions under which you want to establish the easement. Point out the fact that you approached the owner of the land with a proposal to establish an easement, but did not reach an agreement. Attach to the claim the documents specified in Art. 126 of the Arbitration Procedure Code of the Russian Federation or Art. 132 Code of Civil Procedure of the Russian Federation. If you ordered an assessment to confirm the validity of your claim, please attach the results to the claim. Pay the state duty in the amount established by paragraph. 3 p. 1 art. 333.19 of the Tax Code of the Russian Federation when filing a claim in a court of general jurisdiction or paragraphs. 4 paragraphs 1 art. 333.21 of the Tax Code of the Russian Federation when filing a claim in an arbitration court. File a claim with the court at the location of the land plot in respect of which you want to establish an easement (Part 1, Article 30 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 38 of the Arbitration Procedure Code of the Russian Federation). 4. How to determine the amount of payment for a private easement on a land plot The amount of payment for a private easement is determined by the parties to the agreement on establishing the easement or by the 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). In some cases, the amount of payment for an easement may be provided for by a regulatory act. In this case, you need to be guided by it. As a rule, this applies to publicly owned areas. For example, if an easement is established in relation to a land plot that is in federal ownership (clause 2, Rules approved by Decree of the Government of the Russian Federation of December 23, 2014 N 1461). 4.1. Determining the amount of the fee in an agreement establishing an easement Typically, the amount of the fee corresponds to the amount that the owner of the encumbered site could receive if the site were not encumbered by the easement. For example, the possible amount of rent for a site used for travel and passage. When determining the size, they take into account, in particular: · the costs of the owner of the site in connection with the establishment of an easement or the costs of organizing passage, demolishing fences, and complying with access control regulations; · the degree of inconvenience in connection with the establishment of an easement; · the nature and intensity of use of the site by the person in whose interests the easement is established; · term of easement. Often, when determining the amount of payment for an easement, the report of an independent appraiser on the market value of the fee for an easement is taken as a basis. 4.2. Determining the amount of payment for an easement in court If an easement is established in court, the court usually appoints an expert examination (independently or at the request of the parties) and determines the amount of payment for establishing the easement on the basis of an expert opinion. When determining the fee, the court takes into account, in particular: · the reasonable costs of the owner of the plot in connection with the restriction of his rights, or the termination of his obligations to third parties, or the creation of conditions for the implementation of the easement; · the intensity of the intended use of the site (for example, the intensity of traffic on the site); · the nature of the inconvenience experienced by the owner of the site encumbered by the easement (for example, noise and dust from transport); · the share of the land plot limited by the easement in the total area of the plot; · term for establishing the easement; · the degree of influence of the easement on the possibility of disposing of the land plot; · material benefit acquired by the person in whose interests the easement is established. 5. For what period is a private easement established? The term of the easement is determined by the parties to the agreement (Clause 7, Article 23 of the Land Code of the Russian Federation). If they have not agreed on the establishment of an easement, this period is determined by the court when resolving a dispute regarding the establishment of an easement. The choice of the duration of the easement depends on the needs for the use of the encumbered land plot and the capabilities of its owner. For example, if you establish an easement for the purpose of carrying out repair work, then it is advisable to determine the term of the easement in accordance with the timing (duration) of their completion. If you want to establish an easement, for example, for driving through a neighboring plot of land, since there is no other road, it is advisable to establish a longer period. In some cases, the law limits the duration of the easement. For example, a tenant of a public land plot that is encumbered by an easement has the right to enter into an agreement to establish an easement for a period not exceeding the term of the lease agreement (clause 7 of article 23, clause 4 of article 39.24 of the Land Code of the Russian Federation).

Which court considers easement issues?

To accurately determine which court to contact to resolve issues of easement, clarify the subject composition of the parties to the dispute and the nature of the legal relationship. There are two options - a court of general jurisdiction or an arbitration court.

According to Parts 1 and 2 of Art. 27 of the Arbitration Procedure Code of the Russian Federation, arbitration courts consider:

economic disputes;
cases involving legal entities and individuals carrying out entrepreneurial activities
activities without forming a legal entity and having the status of individual entrepreneurs;
cases involving the Russian Federation, constituent entities of the Russian Federation, municipalities, government bodies, etc.

Courts of general jurisdiction deal with cases provided for in Parts 1 and 2 of Art. 22 Code of Civil Procedure of the Russian Federation. But economic disputes and cases dealt with by arbitration courts are not resolved.

An easement is requested in relation to real estate that can be used for business activities:

if the parties to the dispute have the status of entrepreneurs,
if the dispute is between individual entrepreneurs regarding land not used for business activities.

But this fact does not mean that the dispute is of an economic nature and should be considered by an arbitration court.

The Supreme Court cites the district court's ruling as an example. He terminated the proceedings on the claim for the establishment of an easement. The plaintiff had the status of an individual entrepreneur and asked to establish an easement in relation to the land. He needed the easement to provide access to his land plot and non-residential premises.

The district court found that the plaintiff was the owner of a commercial property. His interest is to ensure the passage of transport for the transport of goods. The dispute was of an economic nature and therefore had to be considered by an arbitration court.

But courts of general jurisdiction do not always have the authority to resolve such disputes. For example, a dispute over the cancellation of an easement can be considered by a court of general jurisdiction and an arbitration court. It all depends on which court established the easement.

Registration of a land plot into the common property of the MKD

The GZHN body does not have the right to unilaterally establish an easement on a land plot of an apartment building

The outcome of the court case, confirmed by the Supreme Court of Russia, once again showed that Goszhilnadzor bodies cannot go beyond their powers.

The legislation states that an easement is established by the parties to the issue: the owner of the land and those who want to obtain restrictive rights, or the court. Neither the supervisory agency nor the municipal government has the right to unilaterally decide that an easement has been established on the local area. Also, residents of houses for whom the owners of the premises of a neighboring apartment building have blocked the usual path to the bus stop through their yard cannot claim this.

Previously, we wrote about a court case in which the appellate court pointed out that if the fence installed around the apartment building is located in the local area and its installation is agreed upon by the OSS and municipal authorities, then the fence is not illegal.

An obstacle to installing a fence cannot be the dissatisfaction of residents of neighboring houses, for whom this lengthens the path to a bus stop or store, or a unilateral decision by the State Housing Authority that the territory of the apartment building is burdened with an easement.

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.

If you find an error, please select a piece of text and press Ctrl+Enter.

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:
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.

Important! The agreement should set out the detailed circumstances of the easement arrangement to avoid future disagreements.

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.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 350-29-87

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) 350-29-87

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.

Termination of the agreement

To terminate a private easement, circumstances are needed that would allow the owner of the encumbered plot to demand termination of the concluded agreement. Such grounds for termination of the agreement are :

termination of grounds for further limited use of the territory;
termination of the agreement;
refusal of the interested party to continue the agreement;
purchase of a territory or object by an interested party who initiated the establishment of an easement;
loss of land allotment of its intended purpose;
exclusion of the territory from land circulation and transfer of the site to state purposes and use needs;
liquidation of the facility (implies breakdown of communications, road collapse, drying up of water; demolition of buildings).