Servitudes on land plots are private and public. Land easements in legislation

Servitude in land law is a restriction on the use of allotment. In the domestic system, this concept was first introduced in paragraph 4.10 of the Regulations on the state privatization program No. 1535. Next, consider the types of easements on land legislation.

Historical reference

Land easements in Roman law first appeared. The concept of servitus is literally translated as "slavery of a thing". In this case, the object served not only to the immediate owner. It was also used to derive benefits from a neighbor. In Roman law, there was a clause that one's own thing does not serve anyone, that is, a person could not establish an easement on his site, but only on a stranger.

Formation of the regulatory framework

As is known, civil legislation has undergone a number of changes. In particular, new provisions were introduced concerning property-related relationships. Servitudes on land plots are regulated by Art. 274-277 Civil Code. The essence of the norms is as follows. The owner of the property may require the owner of the neighboring plot to give him the opportunity to use his territory to a limited extent.

Appointment

Servitudes for land plots are set for different purposes. For example, to create a passage / passage, laying and use of engineering communications, pipelines, communication lines, water supply. That is, easements on land are necessary to meet the needs of the owner, which can not be provided in any other way. They act as an encumbrance, which does not deprive the owner of the opportunity to dispose of and use the object.

Conditions for Establishing

Servitudes on land plots are introduced by agreement of the parties. These encumbrances must undergo state registration. If the owners have not reached a mutually beneficial agreement, the land easement is established by a court decision. It should be noted that not only the owner can enter into an agreement with a neighbor. The servitude may be established on demand or in the interests of the entity to which the site is granted on the rights of inheritable possession or permanent use. Encumbrance in the form of a limited opportunity to use part of the allotment involves charging fees. The cost of easement on the land plot is established by the owners (owners) themselves.

Specificity of concluding transactions

According to Article 613 of the Civil Code, the owner of the allotment, when giving it out, should warn that a land servitude has been established on him. In the event of non-fulfillment of this condition, the user may demand a reduction in the amount of payment or terminate the agreement by filing a claim for recovery of damages. When concluding a loan agreement, the entity that transfers the object to gratuitous operation must also inform the other party to the transaction of the existing encumbrances. If this condition is not fulfilled, the borrower may terminate the agreement unilaterally and claim compensation for the damage.

Classification

The norms provide for two types of encumbrance. Public easement on the land plot may be established by decision of the territorial authority on the basis of town planning documents and in accordance with the rules of construction. Such an encumbrance is usually caused by the need to satisfy public or state interests. A private easement on a land plot may be established to limit the exploitation of allotments and other real estate to ensure:

1. Reconstruction, construction, use and repair of structures, buildings, as well as objects of transport and engineering infrastructures.
2. Passage / passage through the territory belonging to another person, if otherwise it is impossible to get to your own site.
3. Implementation of works on engineering training, protection of the terrain from flooding and flooding, construction of retaining walls.
4. Applications of devices penetrating to foreign territory at a certain height, when building buildings.
5. Repair and operation of common walls in constructions of the blocked building.
6. Other needs of property owners, the provision of which can not be carried out without imposing an encumbrance.

The servitude can not act as an independent subject of sale or pledge, and also be transferred in any way to persons who are not owners of the facilities for which it is intended.

Termination of encumbrance

It is carried out at the request of the owner of the site in respect of which the easement is established. The termination of the encumbrance may be due to the lack of grounds under which it was provided. The owner can apply to the court to eliminate the easement, if its presence creates significant obstacles to the use of the site for its intended purpose.

Additional standards

Servitude is provided not only in the Civil Code. An encumbrance, for example, is regulated by Federal Law No. 113 "On Hydrometeorological Service". The servitude is established on allotments, for which the passage / passage to the stationary observation posts included in the state network is carried out. The procedure according to which the encumbrance is introduced in this case was determined by the Government in Resolution No. 972. In Federal Law No. 72 regulating the functioning of homeowners' associations, it is stipulated that in respect of a land plot, as well as other common property, a limited right of use by third-party Persons. At the same time, it is not allowed to prohibit the imposition of encumbrance in the event that there is a need to ensure access of other entities to objects that existed before the adoption of Federal Law No. 72. If the question of establishing a new easement arose, then it is decided by agreement between the person concerned and the apartment owners. If the consensus is not reached, the dispute can be resolved through the courts. To clarify the provisions related to the introduction of encumbrances under Federal Law No. 72, the Government adopted Decree No. 1223. It approved rules for determining the size and setting of the boundaries of allotments in condominiums. In accordance with them, the territory of general use within the microdistrict, quarter is subject to leasing or ownership to the owners' association or homeowners only on condition that necessary servitudes and restrictions are introduced.

Other cases

In Federal Law No. 123, it was determined that it is possible to introduce encumbrances on land plots to meet the needs of livestock breeding. The necessity to establish an easement can also arise during land reclamation, for example, when it is drained for drainage. The corresponding provision is provided for by Clause 3 of Article 26 of Federal Law No. 4. Assignments located on the border with the territories of reclaimed lands may be used with restrictions determined by the LC and the Civil Code.

Additional types of encumbrance

Forestry and water legislation also provides for the possibility of establishing easements. By their content, they are close to the encumbrances discussed above. Water servitude is fixed in Article 43 of the VC. Under the terms of the agreement, the capacity of entities that are granted long-term or short-term use of the relevant facilities may be limited to the benefit of others. A private water easement can be established by a court decision. It should be noted an important point. The rules on easements, provided for by civil law, apply to water bodies in a part that does not contradict the VC.

Objectives of encumbrances

Water easement, under Article 44 of the VC, can be installed for:

1. The abstraction of water without the use of structures, technical devices and means.
2. Running and watering cattle.
3. Exploitation of objects as communication routes for boats, ferries, small boats.

The law may provide for other purposes. To realize a limited right to a water body, there is no need to obtain a permit for use.

Specificity

The peculiarity of a public easement on a water body is that one side is the owner, and the other is an unlimited number of persons who use. In this case, the last owners are not. A private easement on a water object is established between non-owner users.

Forest fund

The rules for the use of its territories are fixed in the LC. In accordance with Article 21 of this Code, citizens can freely be on the land, both incoming and not included in the forest fund. In this case, the possibility to use the territories of the latter category may be limited to the benefit of other interested entities. The basis for establishing a forest servitude is a contract, a decision of the state body or territorial structure of power, and also of the court. The encumbrance must be registered. If the agreement between the interested entity and the owner of the territory is not reached, the dispute is considered by the court upon the suit of the first. Public easement, in accordance with the LC, assumes that one side is the owner of the territory - the Russian Federation, and the other - an unlimited number of persons who use. In this case, the last owners are not. When establishing a private easement, the participants in the transaction are exclusively non-owners. Decisions of institutions of power (state or local), providing for the imposition of encumbrances on the territory, may be challenged in court in the established manner.