The procedure for terminating a private and public easement on a land plot

Instructions for carrying out

We found out that easements are subject to state registration.
To pass it, you need to first complete and collect a number of documents. Moreover, this list will vary depending on the type of easement and the parties involved in this transaction. To enter documents into Rosreestr, the presence of one party is sufficient. If documents are transferred to the registration service by a third party, then a power of attorney must be issued to him to represent the interests of one of the parties. It must be certified by a notary. When submitting documentation, you must provide this power of attorney and the passport of the person for whom it is issued.

Step-by-step algorithm:

Collection of documents and payment of state duty for private encumbrance in accordance with Article 333.33, paragraph 31 of the Tax Code.

State registration of easement of a land plot requires the provision of the following documents:

• legal act – the main document for establishing an easement;
• constituent documents: charter, constituent agreement;
• extract from the Unified State Register of Legal Entities;
• power of attorney for the right to represent the organization, issued to an authorized person;
• permission from the municipality to establish a restriction;
• a document confirming the status of the local government body from which the encumbrance is imposed;
• regulation on public debate;
• cadastral passport indicating restricted zones.

State registration of an easement is carried out by both individuals and legal entities:

For an individual the following is provided:

• passport;
• a receipt for payment of the state fee for registration of the easement in the amount of 1,500 rubles.

For a legal entity:

• constituent documents: Charter, constituent agreement;
• extract from the Unified State Register of Legal Entities;
• power of attorney for the right to represent the organization;
• payment document for payment of the state fee for the easement in the amount of 6,000 rubles.

General documents for all types of persons:

• agreement – ​​the main document for establishing an easement;
• passport issued by the cadastral chamber, with markings of restricted zones.

When a case is submitted to the court for consideration, the main document for making an entry in Rosreestr is the court decision. It is provided in the form of two copies, certified by the official seal, with a note indicating that the decision has entered into legal force. Filling out an application. Common to all participants should be an application for state registration of the easement, a sample and form of which you can download below. This document indicates in whose name the easement is established or the name of the legal entity is recorded, as well as contact information. If registration occurs by power of attorney, then the full name of the representative with information about him is indicated.

The application contains a record of the purpose of the restriction, indicating which area it is being applied to: address, cadastral number, full name of the owner. The deadline for introducing the restriction when concluding a fixed-term encumbrance must be entered.

• Transfer of documentation for registration to the Unified State Register of Rights.
• Receive confirmation of registration. Within 7 working days, the registration of the easement is made in accordance with Article 16 of Federal Law No. 218. The law states that the date of registration is the date of the entry in the Unified Register.
• powers of attorney for registration of easement
• applications for state registration of easement
• applications for state registration of easement

Receive confirmation of registration.

How to establish an easement

Land easement (all types), according to general rules, is assigned in accordance with a person’s request for its application.

The law defines three ways of imposing an encumbrance:

• by voluntary consent of land users;
• on the basis of a regulatory act (federal or municipal);
• by court decision.

One of the reasons for concluding an agreement is that the applicant has the right of lifelong ownership.

The sequence of assigning a public easement consists of the following stages.

Registration of easement for a land plot

Sometimes it becomes necessary to use someone else’s land plot - for example, for a permanent passage through a neighbor’s land plot to one’s own house or garage. Other needs arise in rural areas and in the private sectors. For example, household communications usually occur by connecting to a central network. To do this, additional branches of the water pipeline are laid to it, poles are installed for the power line, etc., but what if the only way to the central line lies through the neighboring property? There is only one way out - to use it both for the installation of linear objects and for their subsequent repair.

The legalization of the right of limited use, since it is established simultaneously for everyone and, therefore, is public, is carried out by state bodies or local governments, depending on whose decision such an encumbrance was created.

Agreement to terminate a private easement on land

Termination of the easement agreement is possible by mutual agreement or through the court. Has the user of the easement agreed to terminate the easement? Congratulations. Then we’ll look at how to draw up an agreement to terminate the easement of a land plot. It must indicate the following:

• Date and place of conclusion of the agreement
• Parties to the agreement
• Data on the easement object
• Obligations of the parties (usually the user of the easement goes to Rosreestr himself, stops registering the easement, and restores the land plot to its original position)

However, the obligations of the parties to terminate the easement, as a rule, duplicate the obligations of the parties to terminate the easement established by the agreement establishing the easement.

USEFUL : read about drawing up an agreement on establishing an easement on land by following the link on the website of AB “Katsailidi and Partners” by following the link

Conditions and procedure for registering an easement on a land plot. Is it necessary in case of contract cancellation?

Establishing an easement requires going through a special procedure provided for by law and the state. This is the procedure for registering a land plot. On what basis is this procedure carried out? What nuances do you need to know before resorting to registering a private or municipal easement?

In this article we will consider all the issues that accompany the registration process and its nuances.

1. Do I need to register?
2. When concluding an agreement for a period of up to 3 years
3. Procedure: how to register?
4. Drawing up an application
5. Collection of documents for individuals and legal entities
6. Amount of state duty and payment procedure
7. Where to contact?
8. Rosreestr
9. Public services
10. MFC
11. Terms of consideration
12. In case of cancellation of the easement agreement

When concluding an agreement for a period of up to 3 years.

Legal services for business

• Drawing up and checking contracts
• Subscriber legal services
• “Re-registration” of joint-stock companies
• Representation in court (arbitration court) for debt collection
• Registration of enterprises
• Representation in court (arbitration court) to appeal against actions of authorities
• Representation in court (arbitration court) in real estate disputes
• Representation in court (arbitration court) on land matters
• Representation in court (arbitration court) in civil cases

Re-registration of joint stock companies.

Grounds for termination of public land easement

In order to terminate an easement established for public purposes, you need to understand the reasons for its cancellation.

Thus, a public easement can be canceled for the following reasons:

• The reasons why a public easement was established have disappeared
• The easement has expired
• Violation of the rules for establishing a public easement
• Inability to use the easement in accordance with the permitted type of use of the land plot on which such an easement is established
• Violation of the law by the user of the easement, within the framework of the activity for which such an easement was established

Grounds for termination of a public land easement established for special purposes

However, a public easement established for special purposes can be terminated before the period established by the agreement on the establishment of the easement. And the reasons are as follows:

• The land on which the easement is established has not been used for more than two years
• There is no payment for the use of easements
• In the event that the user himself refuses the easement

It is worth understanding that this list is not exhaustive. However, the presence of reasons not provided for by current legislation will have to be proven in court.

It is important to note that a lot of documentary evidence can only be obtained through legal or judicial requests, since the defendant is unlikely to agree to provide it to you voluntarily.

Off-balance sheet accounting of easements in a state institution

Accounting is called off-balance sheet because its results are not reflected in the balance sheet. It is designed to control and monitor transactions that do not affect the state of capital.

Account 01 takes into account:

• property received for free use;
• rent and leasing (except for cases when the property is listed on the balance sheet of the lessee - the so-called financial lease);
• real estate received for management;
• easement.

An easement provides the right to use someone else's land plot without taking this plot away from the rightful owner. The establishment of an easement is required in cases where it is not possible to solve the problem in another way. An easement can be considered as an expense or as an independent asset, but in domestic practice it most often acts as an expense.

The object must be reflected on the basis of an acceptance certificate or other document confirming receipt of rights to use. Records are kept separately for each property, indicating the inventory numbers assigned by the owner.

Off-balance sheet accounting does not require double entry. Information on entry and exit, as well as the formation of rights and obligations, is carried out on one account, indicating the content and quantitative and cost indicators.

The initial assessment of the easement is carried out at the actual value established on the date of acceptance. If the easement is recognized as a deferred expense, it is necessary to determine the useful life. The costs of paying for the easement are included in the costs associated with the ordinary activities of the enterprise. Monthly expenses may be determined using formulas used to calculate rent for similar properties in the same region.

The “Statement of Consolidated Records of Easements” is intended for maintaining consolidated records; this is very convenient for organizations that establish a large number of easements (enterprises engaged in the field of communications, energy, gas supply).

You can write off an object from the balance sheet after returning it to the owner or putting it on the balance sheet as a non-financial asset.

Order of the Ministry of Transport of the Russian Federation dated September 5, 2014

The amount of payment for a public easement in relation to areas within the boundaries of the rights of way of public roads of federal significance is established by Rosavtodor, of regional and intermunicipal significance - by the authorized body of state power of the subject of the Federation, of local significance - by the authorized body of local self-government.

1. This Procedure for determining the fee for a public easement in relation to land plots within the boundaries of the right of way of highways (except for private highways) for the purpose of laying, transferring, rebuilding utility lines and their operation (hereinafter referred to as the Procedure, land plots) was developed in accordance with Part 4.7 of Article 25 of the Federal Law of November 8, 2007 N 257-FZ “On highways and road activities in the Russian Federation and on amendments to certain legislative acts of the Russian Federation”* and paragraph 5.2.53(52.6) of the Regulations on the Ministry of Transport of the Russian Federation, approved by Decree of the Government of the Russian Federation of July 30, 2004 N 395**, and establishes the sequence of actions to determine the amount of payment for a public easement in relation to land plots.

Cancellation by agreement

Termination of an easement by mutual agreement is possible in the case when a third party no longer has any reason to use the land plot. The procedure for removing the encumbrance may be initially prescribed in the contract. If this was not done, then the owner and the interested party are required to draw up a new agreement, which will indicate the fact of termination of the transaction.

Often, only one of the parties has a desire to terminate a private easement. But civil legislation does not provide for the possibility of unilateral termination of an easement. Therefore, the initiator can apply to the court with a corresponding application.

Termination of easement

The mechanisms for terminating an easement have been described previously.

However, it is worth summarizing the results:

• In the case of a temporary easement, the right to use the property will be valid until the end of the period specified in the agreement;
• A private easement can be terminated by both parties. The main reason is the cessation of the need to use someone else's property;
• A public easement is terminated by filing a lawsuit in court. The reason may be any violation of the law of the Russian Federation or infringement of the rights of the owner of the site.

Easement fee

• the amount of real damage, calculated without taking into account the amount of real damage that was caused to the owner of a land plot or other property in connection with the early termination of obligations to third parties (hereinafter referred to as real damage);
• lost profits, calculated without taking into account the amount of lost profits caused to the owner of a land plot or other property in connection with the early termination of obligations to third parties (hereinafter referred to as lost profits);
• losses caused to the owner of a land plot or other property in connection with the early termination of obligations to third parties.

In accordance with clause 2.1. Methodological recommendations, the fee should be proportionate to the losses caused to the owner of the property due to the restriction of his rights as a result of the establishment of such an encumbrance. Thus, the proportionality of the easement fee to such losses means that the amount of the fee is equal to the amount of losses caused to the owner of the land plot or other real estate in connection with the restriction of his rights.

Procedure

The procedure for establishing an easement for such encumbrances, which are public and private in nature, will be different. This is due to the fact that the establishment of such easements will also have a certain difference in their purposes.

For an easement of a public nature, the establishment procedure will consist of only three stages:

1. At the first stage, a special document will be issued, which will indicate the purposes of establishing the easement, as well as the period of time for which it is planned to establish the encumbrance.
2. As the second stage of establishing an easement in this case, one should consider announcing and holding public hearings, at which the issue of not only establishing such an encumbrance on one or more land plots will be considered, but also the question of the feasibility of the costs that are expected in connection with the imposition will be considered. such a burden. Based on the results of such hearings, an appropriate regulatory act will be issued, within the framework of which the entire issue relating to the establishment of such an easement will be fully reflected.
3. The third stage includes the direct publication of a normative act regulating the establishment of an easement on one or more land plots, as well as the preparation of all necessary documents in the event that the establishment of such an encumbrance significantly complicates the operation of plots included in the list of encumbered ones. Based on such a list and procedure, either compensation will be paid to the owner of the encumbered plot, or the encumbered plot will be redeemed at public expense.

The key document in this case will be the resolution establishing the easement.

Within the framework of this document, issued by the state authorities of the subject of the federation or directly of the Russian Federation, it will be indicated for what purposes the easement is established, as well as the period for its establishment and the procedure for actions in relation to certain areas.

This document is signed either by the head of the relevant government body or by the official responsible for making such decisions.

The establishment of a private easement takes place in a somewhat more complex manner, since it implies the mandatory implementation of the agreement of the parties involved in the agreement. And a private easement consists of four stages:

1. At the first stage, the parties participating in such an agreement make an initial agreement on the conditions that are essential for the established easement.
2. At the second stage, the party interested in establishing an easement must justify the goals of its actions, as well as prove the need to establish an encumbrance and the impossibility of achieving its goals by any other means.
3. At the third stage of establishing an easement, the final document is signed, acting as an agreement or contract to establish an encumbrance. In addition to the contract, a document is also signed proving the literacy and accuracy of the established value of the encumbrance.
4. The fourth stage is the final stage in establishing an easement and is characterized by state registration of the established encumbrance, as well as obtaining the appropriate certificate, which can subsequently be used as evidence of the legality of one’s rights and claims when using the encumbered plot.

However, these actions are taken only if agreement has been reached on the agreement being concluded.

If such agreements cannot be reached, the party for whose purposes the easement will be established may go to court.

In the event that the conclusion of an agreement on the establishment of an easement necessary for the use of other land plots takes place in court, changes must be made to the list of necessary documents.

The necessary documents that will be needed to register the establishment of an easement will also include a court decision establishing the appropriate application for the land plot, as well as documents confirming the use of all existing procedures for pre-trial settlement of the conflict that has arisen.

In the event that the establishment of an easement takes place in court, the agreement signed by the parties must necessarily contain an appendix, which will contain a copy of the court decision with a mark of entry into force, or another document confirming the fact of the judicial resolution of the conflict.

Regardless of whether the agreement to establish an easement is concluded out of court or by a court decision, the final registration of the established encumbrance must be carried out in strict accordance with current legislation.

What documents are needed to establish an easement?

Since the establishment of an easement is a rather complex legally significant action, its establishment may require a certain list of documents that must be prepared in advance.

If we are talking about an easement of a public nature, then its occurrence occurs regardless of the will of the owner of the land plot, and to record the fact of its establishment, it is sufficient to issue a normative act of a federal or regional nature, the text of which will contain a direct indication of the establishment of an encumbrance on specific land plots.

If such a normative act is introduced, an annex must be drawn up to it, the text of which will present all the cadastral characteristics of the encumbered plots.

If we are talking about a private easement, then it will be necessary to prepare a list of documents that will be needed for further registration of the established right of encumbrance with the Rosreestr authorities.

Such documents will include:

• Cadastral passport for the plot with an attached plan of the imposed encumbrance. This document is necessary in order to fully assess the value of the imposed easement, as well as to justify the size of the encumbered territory in case of disputes.
• Another document that will definitely be needed when establishing an easement will be a certificate obtained from the authorized bodies, which can confirm the absence of other encumbrances on a particular site. This document will allow you to correctly calculate the value of the imposed encumbrance in order to exclude the possibility of establishing the value of the easement higher than it may be.
• Justification of the purposes of establishing an easement. This document is prepared by the person interested in the encumbrance, since with its help it will be possible to prove the need to establish an easement exactly in the form in which the initiator of the encumbrance requests it.
• A report on the calculation of the cost of the easement or proportionate payment for the encumbrance. Based on this document, the text of the agreement will indicate the amount that is payable to the owner of the encumbered plot by the initiator of the easement.

Once all the necessary documents have been prepared, you can proceed directly to the procedure for establishing an easement.

Registration procedure

To register an easement on land, an application for permission to impose a restriction on the land plot is submitted to the state register. The state fee is waived for registration. Citizens will have to pay 1,500 thousand rubles, and enterprises – 6,000 thousand rubles. The following documents must be prepared:

• Agreement on the voluntary introduction of restrictions on land allotment.
• Enterprises present constituent documents, and private citizens - a passport.
• If only part of someone else's territory is limited, a cadastral plan is prepared.

Rosreestr has 30 days to make a decision on registering a land easement and enter the relevant data.