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 it is?
An easement is a special type of agreement provided for by law, which presupposes the emergence and regulation of the right to establish limited use of someone else’s property (Clause 1 of Article 274 of the Civil Code of the Russian Federation). The procedure is carried out taking into account the following features (paragraphs of Article 274 of the Civil Code of the Russian Federation are indicated in brackets):
- the owner of the land plot retains the right to own and operate it (clause 2);
- registration of the agreement is carried out in accordance with the regulations adopted regarding the registration of real estate (clause 3);
- a demand for an easement, if it is difficult to reach an agreement with the owner, may be raised in court (clause 3);
- the agreement is concluded for a limited or permanent period, i.e. indefinitely (clause 4);
- use of the site may be provided for a fee (clause 5);
- it is permissible to conclude an agreement in relation to state and municipal property (clause 6).
Reference. The right to limited use arises only in relation to real estate (Article 277 of the Civil Code of the Russian Federation).
If the ownership of the encumbered land plot passes to another person, then the easement does not expire, but is transferred together with the real estate (clause 1 of Article 275 of the Civil Code of the Russian Federation). Thus, an easement agreement is a way to establish and regulate the right to use part of someone else’s land , as well as to indicate in writing the conditions, terms and details of the parties to the agreement.
We will tell you more about what an easement is, how and when it is formalized, in a separate article.
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Jurisdiction
According to general rules, the jurisdiction of arbitration courts includes cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities (clause 1 of Article 27 of the Arbitration Procedure Code of the Russian Federation).
At the same time, the mere circumstance that an easement is requested in relation to real estate that can be used for business activities does not yet indicate that the dispute is of an economic nature and is subject to consideration by an arbitration court.
The same is true in the event of a dispute between business entities regarding an object not used for business activities.
For example, as the highest court noted in one of the cases, a dispute about the termination of an easement established earlier by decision of an arbitration court is subject to consideration in a court of general jurisdiction, taking into account the subject composition, since the owner of the land plot, in respect of part of which this easement was established, has lost status of an individual entrepreneur (clause 2 of the Review).
Illegal reconstruction
The position reflected in paragraph 3 of the Review on the issue of the possibility of establishing an easement to ensure passage or passage to an unauthorized building, including a new facility resulting from unauthorized reconstruction, deserves attention.
In the case cited in the Review, it was established that the object in respect of which the requirement to establish an easement was stated (a warehouse building) was illegally reconstructed (a new capital construction project was erected on the site of the dismantled building without a construction permit).
The courts came to the conclusion that in this case the plaintiff, as a person who unauthorizedly built a new facility, taking into account the provisions of Art. 222, 274 of the Civil Code of the Russian Federation does not acquire ownership rights to it and, accordingly, does not have the right to demand that the owner of a neighboring land plot establish an easement.
Public and private easements
One of the most interesting, from our point of view, explanations is contained in paragraph 4 of the Review. According to this paragraph, the ability to establish a public easement for the repair and operation of a linear object does not deprive the owner of the linear object of the right to demand that the owner of the land plot establish a private easement for the same purposes.
In accordance with sub. 2 p. 2 art. 23 of the Land Code of the Russian Federation, a public easement can be established for the use of a land plot for the purpose of repairing utility, engineering, electrical and other lines and networks, as well as transport infrastructure facilities. In this case, the easement is established based on the results of public hearings on the basis of an act of the authorized body to ensure the interests of the state, local government or local population.
In turn, the provisions of paragraph 1 of Art. 274 of the Civil Code of the Russian Federation provide for the establishment of a private easement by agreement between the owner of the site and the owner of the linear object or by a court decision, including for the construction, reconstruction and (or) operation of linear objects.
The Review analyzes judicial acts in the case of protecting the interests of the owner of a gas pipeline who applied to the owner of a land plot to establish a private easement for the purpose of operating and repairing a gas pipeline providing gas supply to an apartment building. The court of first instance refused to satisfy the demands, referring to the above norms of land legislation and motivating its decision by the fact that the plaintiff’s use of someone else’s land plot for the specified purposes is possible on the basis of a public easement.
The cassation court did not agree with the position of the first instance court, pointing out that the potential possibility of establishing a public easement for the operation of a linear facility itself cannot be a basis for refusing to establish a private easement for the same purposes in accordance with Art. 274 Civil Code of the Russian Federation. This position was supported by the highest court.
It should be noted that in practice until now there has been a clear division between the institutions of private and public easements depending on the circle of persons in whose interests the easement is established. According to the existing position of the courts, a public easement is always aimed at ensuring the interests of an unlimited number of persons and public interests, and therefore, in principle, cannot be established in the interests of a private person (1.
Having determined that there was no clearly expressed public interest or the will of the local population in establishing a public easement, the courts recognized as legal the refusal of the authorized body to establish a public easement (2.
In paragraph 4 of the Review, the Supreme Court deviates from this position, actually allowing, under the same circumstances (the need to operate and repair utility networks connected to an apartment building), the establishment of both a public easement in the interests of the local population and a private easement in favor of the owner of the utility networks . This approach, in our opinion, will help resolve the pressing issue of operating utility networks located on someone else’s land plot, giving the owner of the networks the right to use various mechanisms: both applying to an authorized body for the establishment of a public easement, and the right to demand the establishment of a private easement from the owner of the land plot.
Who can demand?
Paragraph 5 of the Review contains another position, which, in our opinion, will have a positive impact on the formation of uniform law enforcement practice. The Supreme Court confirmed the right of the owner of a land plot on which someone else’s linear object is located to demand that the owner of such an object establish a private easement.
The Review describes a dispute between the owner of the site on which the power transmission line supports are located and the owner of this linear facility regarding the establishment of an easement. The court of first instance refused to satisfy the requirements, indicating that, within the meaning of Art. 274 of the Civil Code of the Russian Federation, only the owner of a linear object, and not the owner of the site, has the right to demand the establishment of an easement.
The cassation court determined that the object was erected on the site after the plaintiff’s ownership rights arose (the issues of the owner’s consent to the construction of the object on his site and, therefore, the legality of the construction are not reflected in the Review), the owner of the linear object actually used the land plot, but from establishing the order evaded use and payment.
Taking into account the above, the district court sent the case for a new trial, indicating that Art. 274 of the Civil Code of the Russian Federation does not limit the right of the owner of a plot to contact the owner of a linear object erected after the emergence of private ownership of the land plot with a demand to establish an easement. The court also took into account the fact that the plaintiff had already been denied negatory and vindication claims.
Of course, in a situation where the owner of a land plot has exhausted other methods of protection, in particular, he is denied the release of the plot from someone else’s property, and the right holder of a linear object avoids resolving questions about the procedure for using the plot and setting fees, in fact, the only instrument for protecting the interests of the owner of the land plot there remains an appeal for the establishment of a paid easement. To be fair, it is worth noting that a similar position was expressed earlier by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 15104/12 dated March 19, 2013.
At the same time, in our opinion, this position, set out in the Review in relation to cases of construction of a linear facility after the emergence of the plaintiff’s private property right, should be interpreted more broadly.
It seems that the owner of the plot has the right to demand the establishment of a paid easement even in the case when he acquired the land plot with already erected linear objects, but the relationship of the owner of the linear object with the previous owner of the land plot for some reason was not formalized.
The position, logically related to the analyzed approach of the Supreme Court, is reflected in paragraph 6 of the Review, which explains that if the grounds on which the easement was established no longer exist, both the owner of the land plot encumbered by the easement and the owner have the right to apply to the court to demand termination of the easement. a plot of land to ensure the use of which an easement has been established.
Easement fee
Taking into account the number of disputes related to the establishment of fees for easements, the Supreme Court also identified criteria for the court to determine the amount of fees for easements, as well as the procedure for establishing and changing them, namely (paragraphs 12, 13 of the Review):
1. Payment for an easement is determined based on the principles of reasonableness and proportionality, taking into account the nature of the activities of the parties and the period for establishing the easement. In particular, it is noted that the amount of payment for the easement must be proportionate to the material benefit that the owner of the land plot acquires as a result of the establishment of the easement, while compensating for the restrictions and costs that arise for the owner of the land plot burdened with the easement (for example, expenses associated with the need organizing passage through the land plot, with the demolition or relocation of fences, observing the access control regime, maintaining part of the land plot in proper condition).
2. Such a fee may take the form of either a one-time payment or periodic payments, while it is permissible to establish a combined fee consisting of a one-time fee and periodic payments.
3. The obligation to provide evidence of the validity of the proposed amount of payment for the easement rests with the plaintiff, including by appointing an expert examination, while the defendant, if he disagrees with the proposed amount of payment, has the right to present evidence to the court in support of his objections (Part 1 of Article 56 of the Civil Procedure Code of the Russian Federation Part 1 of Article 65 of the Arbitration Procedure Code of the Russian Federation).
4. The terms of the easement may provide for a procedure for changing the fee, while each party has the right to go to court with a demand to change the amount of the fee (to increase or decrease it) in the event of a change in the scope of restrictions on the rights of the owner burdened with the easement (for example, in the case of a change in the intensity movement and carrying capacity of vehicles of the holder of the easement).
It is important to note that paragraph 12 of the Review finally formulates an unambiguous position on the possibility of establishing a gratuitous easement: such an easement is permissible with the consent of the owner of the encumbered property for gratuitous use.
The above position is notable primarily for the fact that earlier in practice the position was repeatedly expressed about the inadmissibility of the court establishing free easements, since they are not provided for by law (3.
Defining Conditions
In addition to the above positions, the Supreme Court in the Review also clarified the approaches established in practice to resolving cases related to the establishment of an easement and the determination of its conditions, in particular:
1) failure to reach agreement on the establishment of an easement or on its terms is a sufficient basis for going to court, the legislation does not provide for a mandatory pre-trial procedure for resolving a dispute about the establishment of an easement, filing an additional claim if the parties fail to reach an agreement is not required (clause 1 of the Review);
2) the establishment of an easement is possible only if the owner of the land plot (real estate property) has no other opportunity to exercise his right to use the plot (property) belonging to him (clause 7 of the Review);
3) the inadmissibility of establishing an easement if its terms deprive the owner of the land plot of the opportunity to use the plot in accordance with the permitted use of the land plot (clause 8 of the Review);
4) ensuring compliance with the balance of interests of the parties when choosing the least burdensome terms for the owner of the land plot in respect of which the easement is established (for example, if there are several options for access to the land plot through a neighboring land plot) (clause 9 of the Review) ;
5) satisfying the requirements for the establishment of an easement, the court must determine all the conditions under which it is established (information about land plots, type, content, scope of the easement, term, terms of payment, types of work, if the easement is established for repair or other work , etc.) (clause 10 of the Review) (4.
It is worth noting that the criteria for the admissibility of establishing an easement and recommendations regarding the choice of the optimal option for its establishment have been repeatedly reflected in judicial acts of the Presidium of the Supreme Arbitration Court of the Russian Federation, the Constitutional Court of the Russian Federation and are uniformly applied in current judicial practice (5.
Taking into account the new Federal Law dated July 13, 2015 No. 218-FZ “On State Registration of Real Estate,” the Supreme Court also noted that in the absence of information in the Unified State Register of Real Estate (until January 1, 2017 in the State Property Committee) of information about the part of the land plot encumbered easement does not interfere with the state registration of the easement, except in cases established by law (clause 11 of the Review).
The positions presented by the Supreme Court on disputes regarding the establishment of an easement on a land plot, summarized in a single Review, brought clarity to many ambiguous issues that existed in the practice of courts resolving this category of cases.
1. Resolutions of the AS PO dated 04/05/2016 in case No. A55-4542/2015, FAS VVO dated 10/07/2013 in case No. A11-102/2013.
2. Resolution of the AS PO dated March 21, 2016 in case No. A57-1890/2015.
3. Resolutions of the AS MO dated July 20, 2016 in case No. A40-82890/2014, AS ZSO dated August 26, 2016 in case No. A70-10105/2015.
4. Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 11, 2016 No. 18-КГ16-113.
5. Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 4, 2013 No. 16033/12, dated February 28, 2012 No. 11248/11, dated July 20, 2010 No. 2509/10; Determination of the Constitutional Court of the Russian Federation dated March 22, 2012 No. 510-О-О; resolution of the AS MO dated April 25, 2017 in case No. A41-26749/14, AS SZO dated October 28, 2016 in case No. A21-1566/2015.
Purpose
Private and public easements are established in cases where the owners of neighboring or nearby land plots, as well as government authorities, need to use part of someone else’s property. In accordance with paragraph 4 of Art. 23 of the Land Code of the Russian Federation, a public agreement is concluded for the purposes of:
- ensuring travel or access to public facilities;
- placement of geodetic objects;
- laying engineering and cable networks;
- carrying out land and water works;
- movement or grazing of farm animals;
- haymaking, hunting, fishing, agricultural fishing;
- construction of road and automobile lines;
- construction of engineering structures and structures.
The purpose of a private easement is determined by the agreement of the parties to the agreement, for example, if it is necessary to place a through public roadway or lay a cable on the territory of a neighboring plot.
Parties
Since, according to the specific purpose of the agreement, the agreement is of a private or public nature, the parties to the agreement act either individually or as part of a certain circle of persons, and as part of an undetermined one .
In this case, the users and holders of the easement may become:
- individuals;
- individual entrepreneurs;
- legal entities;
- municipal organizations;
- executive agencies.
The parties to the agreement are the owner of the property encumbered by the easement (landowner) and the owner of the property in whose favor the agreement is concluded (easement). In some cases, a servitude may be a person using the property on the basis of indefinite or lifelong residence, for example, under a rent agreement, as well as a tenant (Article 39.24 of the Land Code of the Russian Federation).
Consequences
- After the termination of the encumbrance, the land owner loses the right to receive payment for the service.
- Persons who previously had the right to use the site can no longer use it for their needs.
As you can see, an easement can be terminated at the request of the person in whose interests it was established , but more often this happens at the request of the land owner. To cancel, it is enough to submit an application-demand to special authorities and draw up an additional agreement on termination of the contract.
Terms of payment
The conditions and amount of payment established in relation to the servitude are not strictly regulated by law. However, if the subject of the agreement is real estate owned by the state or local governments, then the fee is established (clause 2 of article 39.25 of the Land Code of the Russian Federation):
- The Government of the Russian Federation in relation to real estate under federal ownership.
- Regional Government of the constituent entities of the Russian Federation, if the property belongs to regional authorities.
- Local government authority in relation to municipal real estate.
Funds transferred in favor of the land user are directed to the regional, municipal or federal budget of the Russian Federation, or to the benefit of a certain person or group of persons who are the subjects of a private agreement (clause 3). The fee by private agreement is established in accordance with Art. 424 of the Civil Code of the Russian Federation by mutual agreement of the parties.
Reference. When assessing the value of an easement, you can use the recommendations of Roszemkadastr dated March 17, 2004.
We talk about the methodology for determining and the procedure for paying fees for an easement on a land plot in this article.
Who establishes it and can the landowner do it?
The initiative to establish an easement belongs to the owners who own a plot of land or a permanently constructed building, who cannot do without the use of neighboring territory in solving important life support issues.
Such owners have a great interest in achieving the intended goal, and act as the main initiators of the procedure for establishing a private land easement.
Based on the legislative acts of the Russian Federation, easements can be established for various periods and purposes, which are specified in the agreement (read about what types of easements exist here). According to the mutual agreement between the parties, a land easement involves registration on:
- Urgent term . The contract is drawn up for a certain period of time, which is required for construction, equipment of an access road, and transportation of property. After completion of the work, the owner’s right to use someone else’s territory is removed.
- Constant term . When concluding such an agreement, no time period is established. The owner's limited right to use the encumbered plot remains and cannot be terminated until the existing grounds for this cease.
You can find more information about temporary and permanent easements here.
Validity
The duration of the agreement is regulated by Art. 19 43 of the Federal Law of the Russian Federation. In all cases provided for by the Land Code of the Russian Federation, the validity period of the agreement is established:
- for the period specified in the text of the agreement;
- for an unlimited period with the possibility of transferring rights by inheritance/contract;
- for a period of no more than 2 years, if the intended purpose of the agreement involves carrying out regional, federal work, research or survey work.
When establishing an easement in connection with the operation of regional or federal linear facilities, the contract is concluded for an unlimited period (clause 3 of Article 19).
If the text of the agreement does not stipulate the validity period of the easement, then the agreement continues to be valid for 5 years from the date of conclusion (clause 4 of article 19).
We also talk about how long an easement can be established in this material, and here you can learn about the types and classification of easements by duration.
What if I have to go to court?
In the event that the initiator of the establishment of an easement refuses to cancel it even despite the presence of objective reasons for its cancellation, the possibility of removing encumbrances on land plots exists - by going to court.
- In order for the court to make an appropriate decision, the owner of the land plot must file a claim to cancel the encumbrance. As part of the statement of claim, it is necessary to indicate at what time the easement was established, for what period it was established, and also for what reason it should be canceled.
- Such an application must be accompanied by documents confirming the legality of the requirements to cancel the easement. In addition, it will be necessary to attach evidence of an attempt to resolve the dispute over the cancellation of the easement out of court.
- The last document that will need to be submitted to the court will be a receipt for payment of the state fee for court services. Its amount for individuals will be 300 rubles.
The consideration of the case in court will take about one to two months, depending on how many meetings are needed to study the positions of the parties to the agreement.
If we are talking about a public easement, then it can also be canceled by considering the case in court. However, in this case, the period for consideration of the case may increase to three months, but cannot exceed this period.
We propose to find all the details about the types and other features of establishing an easement on a land plot in these articles:
- Subjects of easement relations and the duration of the agreement.
- How is state registration of an agreement carried out?
- How to calculate fees - instructions for setting costs.
- All about predial easement.
Grounds for termination
The parties to the agreement list in the agreement the circumstances upon the occurrence of which the agreement terminates. They could be:
- expiration of the validity period provided for by the contract;
- unification of land plots of the land user and the servitude;
- unilateral or mutual expression of will of the subjects of the agreement;
- there is no need to use the easement for a certain period, for example 3 years.
Attention. According to Art. 276 of the Civil Code of the Russian Federation, the grounds for termination of an easement are the disappearance of the need for limited exploitation of the property (clause 1), as well as a court decision if the encumbrance limits the possibility of using the site for its intended purpose (clause 2).
We also provide a list of grounds for termination of an easement in a separate material.
Thus, owners of real estate, if necessary, have the right to enter into an agreement to grant a limited right to use the site or part of it to another owner. In this case, the subject of the agreement can be both private and state property. The document necessarily regulates the rights and obligations of the parties, the duration of the agreement, as well as the amount and terms of payment.
Procedure
Regardless of the basis for termination of the easement, the procedure and procedure are similar:
- First, an application is drawn up requesting the cancellation of the encumbrance by the owner of the site.
- Next, you must submit a request application to the authorized body to cancel the established easement.
- Drawing up an additional agreement on termination of the contract or a Resolution of the head of the authorized government body.
- Registration of the concluded agreement in Rosreestr.
If the initiator is the owner of the easement, then filing an application is not required.
Drawing up a requirement
- The requirement is drawn up in the name of the head of the authorized executive body or local government.
- In the text of the application-demand, you must indicate information about the encumbered land (address, boundary data and other information to identify the site), information about why termination of the restriction is required.
- If the cancellation of the encumbrance is carried out on the initiative of the person who demanded the establishment of the easement, then an application is not necessary - an additional agreement to the contract is sufficient, which indicates the basis and date for termination of the restriction.
- If the easement is canceled at the request of the land owners, then the application for cancellation forms the basis of the Resolution on the cancellation of the encumbrance (whether it is a public or private easement does not play a role here).
Additional documents
The following documents must be attached to the request:
- identification document of the land owner;
- title documents for the site;
- technical documents for land;
- agreement on the establishment of an easement;
- papers confirming the legality of the claim (operation plan for the encumbered part, where it is clear that it is impossible to use it, documentary evidence of the absence of the need to use the land or violation of the terms of the easement);
- expert opinion on the condition of the site.
Employees of the authorized government body must, within no more than 10 days, check the correctness of the requirements and documents and send the application to the head of the body for consideration.
After submitting the document to the authorized body, within a period of no more than 30 days it is required to review it and make a decision.
Signing the agreement
Next, an additional agreement on termination of the contract or a resolution of the head of the government agency is drawn up. Here, the time for preparing documents is limited to 30 days from the date of the decision to cancel the encumbrance .
The preparation and signing of the additional agreement must occur within this period.
Registration in Rosreestr
Registration must take place no more than 10 days from the date of signing the agreement or issuing the Resolution.
Any actions with the land plot and changes in documentation must be recorded in Rosreestr.
The procedure takes place in the bodies of Rosreestr, which are responsible for making changes to the Unified State Register of Real Estate. To do this, you must submit to the authority a signed additional agreement, documents for the plot, and a passport of the land owner.
