Easement (from Latin Servitus) – subordination, restriction of rights. When an easement is established on land, then the rights of the owner of this land are actually curtailed. The most important point when establishing an easement is its necessity. That is, the law takes the side of the person who, in order to achieve his goals, asks for an easement when it is impossible to do without it. For what purposes are easements established, how they are classified by type, read here, and in this article we will talk in more detail about public easements, as one of the types of easements provided for and formalized in our state.
What is a public easement – concept, examples.
In Russian legislation there is a concept - public easement. This is an easement that is established for the needs of the population or administrative bodies in a special manner. The object of land easements is a piece of land that is in state (municipal) or private ownership. Let us give an example of establishing a public easement. In order to extend power lines, it is necessary to place equipment in certain places, allow passage of workers and access of equipment, but this cannot be done without invading private property - then an easement is established. Or another example. Your plot of land prevents free access to a river or lake. As you know, water bodies are intended for public use, and local authorities have the right to establish a public easement on a land plot to provide access to the reservoir.
Features of the concept
Such an operation with a plot of land as an easement is not an innovation in the land sector; this concept has existed for more than one century. What does this expression mean? A public easement is a legal encumbrance of someone else's land carried out by the state.
- The purpose of this action is to create normal conditions for owners of adjacent territories regarding the use of their land.
- The Land and Civil Code regulates all actions to encumber plots. The Code is the main regulatory legal act in this matter, but there are some.
- In the Civil Code, the boundaries of public easement zones and other issues are discussed in Articles 274-277. It is indicated how it is established which normative documents can be used to regulate all relationships between the parties to the agreement. After all, there are two parties involved in such an issue, including the owner of the site.
- What issues does the Land Code address? It provides guidance on the purposes for which public easements are used in towns and villages. The procedure for carrying out the procedure is precisely determined. In Article 23 of the Land Code you can read why this type of encumbrance measure should be imposed, and how to carry out the process correctly.
Establishing an easement on a plot of land is a fairly popular measure and makes it possible to improve the lives of those who manage the areas adjacent to the given plot. The establishment and removal of this measure is carried out by the local government as a representative of state power .
An easement on land can be not only public, but also private, but it must also be established and removed only within the framework of land and civil legislation. The codes provide information not only on the procedure for establishing an encumbrance, but also on those situations that are the basis for a land easement.
ATTENTION! When applying an easement, in accordance with the Civil Code of the Russian Federation, a compensation payment for the use of the encumbrance on the land must be established.
This is a kind of payment for imposing an easement on the land. The amount of compensation and payment depends on the characteristics of the site and the duration of the encumbrance.
Can a public easement be established without the consent of the owner?
The Civil Code clearly states that the right of ownership is given to us so that we can freely dispose of our property. As for the land plot, it has a purpose and types of permitted use (agricultural land, land of settlements, reserve land, etc. more details here). Each owner has the right to dispose of the site, but taking into account the interests of other persons. To establish a public easement, authorities must notify the owner of the site about it. If the owner does not agree, then an easement in relation to the land plot can be established through the courts. The court makes a decision in someone’s favor based on the validity of the easement and the extent to which the easement limits the owner’s right to use his land. But, as a rule, when establishing a public easement the matter does not come to court; all issues are resolved administratively. But if it is necessary to establish a private easement in relation to a land plot, legal disputes often arise.
Causes
How to determine how legal it is to apply a restrictive measure on the use of one’s own land area, and whether there is a violation of the rights of the owner or his neighbors?
ATTENTION! The legislative grounds for the application of a special encumbrance measure are established by Article 23 of the Land Code.
It is important to adhere to this list of grounds; any changes to it can only be accepted if the Land Code itself is amended.
- The basis for establishing an easement may be unsuccessful land surveying if it leads to the impossibility of free access to other areas. When the boundary of an allotment blocks the road to neighboring squares, an encumbrance is used that will provide access to neighbors to their land. In this case, an easement is a possible way out of the situation.
- The measure is applied if it is necessary to create part of the site for laying utilities. But encumbrance can only be used when there is no other way to install pipelines. They also resort to legislative options when installing power lines on a plot of land.
- An easement can also be used in relation to land on which a natural reservoir is located. In order for other persons to have access to it, it will be necessary to formalize this by law.
- Sometimes, when dividing and marking plots, free access to the land that was used to collect grass used to feed animals may be stopped. In this case, you also need to contact the state authorities with an application to establish an easement.
- Towers for mobile and other communications may be installed on land that is owned by someone. When it is not possible to install equipment in another area, the state is forced to resort to encumbering the site.
The decision on restrictions is also used by authorities to provide free access to forest lands if there is no other road. The forest should be accessible to all citizens for walking, picking berries or mushrooms, and other purposes.
These are the types of grounds under land law that can be used to impose an easement. The use of encumbrances for other reasons is strictly prohibited; violators of the owner's rights to land will be strictly punished by law.
The procedure for establishing public easements
Public easements in each region are established according to the rules of the local administration, which comply with generally accepted norms of civil and land law. As a rule, a person interested in establishing a public easement applies to local authorities with a petition containing information about the land plot - the object of the land easement (cadastral number, area, address, etc.) in respect of which it is intended to establish a public easement. In response to the petition, the authorities make an appropriate reasoned decision on the establishment of a public easement or on refusal. The initiator of the easement (interested person) or the local administration can organize public hearings to make a decision. If the decision is positive, the authority issues a local act (Decision, order, resolution), which indicates information about the content of the public easement and the scope of its action. The initiator prepares and obtains all the necessary documentation for making a decision independently.
Easement for part of the plot
It is not difficult to establish an encumbrance on land with one owner, but what to do if the plot has several owners? The law allows the establishment of easements on such lands, but subject to the following nuances:
- If the shares have not been allocated. Then the interested person or government body enters into an agreement with all owners. And after this, the owner, on whose part of the land the encumbrance is imposed, selects the boundaries of the easement.
- If the shares have been previously allocated. The agreement is drawn up only by the owner and a third party, and the remaining co-owners are only required to provide notarized consent.
Compliance with these conditions is important for both parties interested in the easement.
Registration of a public easement in Rosreestr
Registration of public easements occurs through interdepartmental interaction, documents are sent to Rosreestr within 5 working days from the date of the decision to establish a public easement, and Rosreestr registers the easement within 15 days and enters information about it into the Unified State Register of Real Estate. Restrictions do not affect the owner’s right to sell his plot or perform any other actions not prohibited by law. When selling, inheriting, donating, along with the right of ownership, the restriction of the right - the established easement - is transferred.
The article discusses legal issues related to the display of the boundaries of public easements in territorial surveying projects, and formulates proposals for amending the Town Planning Code of the Russian Federation, suggesting the possibility of establishing public easements in territorial surveying projects.
In the practice of urban planning, when preparing documentation on territory planning, questions related to the procedure for establishing public easements very often arise.
“The Town Planning Code of the Russian Federation of December 29, 2004 does not contain rules on the regulation of easements (they were provided for by the Town Planning Code of the Russian Federation of 1998), and if the owners of private easements can take advantage of the norms of the Civil Code of the Russian Federation, then public easements remained outside the special federal legislation”1.
From the title of Article 23 of the Land Code of the Russian Federation (hereinafter referred to as the Land Code of the Russian Federation), it can be understood that an easement is the right to limited use of someone else’s land plot. There are two types of easements: private and public. A private easement is established in accordance with civil legislation (Part 1, Article 23 of the Land Code of the Russian Federation, Articles 274-277 of the Civil Code of the Russian Federation). A public easement is established by law or other regulatory legal act of the Russian Federation, a regulatory legal act of a constituent entity of the Russian Federation, a regulatory legal act of a local government body in cases where this is necessary to ensure the interests of the state, local government or local population, without seizure of land plots. The establishment of a public easement is carried out taking into account the results of public hearings (clause 2 of article 23 of the Land Code of the Russian Federation).
The territory surveying project includes drawings of the territory survey, which, among other information, display the boundaries of the areas of public easements (clause 8, part 5, article 43 of the Town Planning Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). Also, the boundaries of the zones of public easements are indicated as part of the urban planning plan of the land plot (clause 2, part 3, article 44 of the Civil Code of the Russian Federation).
The question arises, the boundaries of which public easement zones should be displayed as part of the territory surveying project: those already established at the time of preparation of the survey project by a special regulatory legal act of the local government, or is it permissible to display the planned boundaries of the public easement zones in the survey project? In this regard, the question of whether it is legal to establish public easements through a territory surveying project is also of interest? Let's try to understand these issues.
First of all, it should be noted that an easement is the right to limited use of someone else’s land plot
(my italics – D.Sh.). According to Article 11.1 of the Land Code of the Russian Federation, a land plot is a part of the earth's surface, the boundaries of which are determined in accordance with federal laws. The main of these laws is the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre”, which defines the procedure for carrying out cadastral actions for the formation of land plots and their registration with the state cadastral register. Thus, a land plot in the legal sense means only a land plot formed and registered with the state cadastral register.
Part 2 of Article 43 of the Civil Code of the Russian Federation stipulates that the preparation of land surveying projects for built-up areas is carried out in order to establish the boundaries of developed land plots and the boundaries of undeveloped land plots. Preparation of land surveying projects for territories subject to development is carried out in order to establish the boundaries of undeveloped land plots planned to be provided to individuals and legal entities for construction, as well as the boundaries of land plots intended for the placement of capital construction projects of federal, regional or local significance. Accordingly, the drawings of the territory surveying project (Part 5 of Article 43 of the Civil Code of the Russian Federation) display:
— boundaries of built-up land plots, including the boundaries of land plots on which linear objects are located (clause 3);
— boundaries of land plots being formed, planned to be provided to individuals and legal entities for construction (clause 4);
— boundaries of land plots intended for the placement of capital construction projects of federal, regional or local significance (clause 5).
Consequently, when preparing land surveying projects, the developer deals with two types of land plots: formed, i.e. registered with the state cadastral register, land plots and land plots being formed, in relation to which cadastral actions will subsequently be carried out and registration in the state real estate cadastre. The second type also includes land plots planned for the placement of capital construction projects of federal, regional or local significance, although they are not directly referred to as land plots being formed.
In relation to land plots formed and registered with the state cadastral register, both already developed and subject to development, the boundaries of public easement zones in the surveying project must be displayed on the basis of regulatory legal acts of the local government body, if any, in force at the time of preparation of the project land surveying. In such cases, the land surveying project fixes the current state of land relations (status quo) in the territory. But what to do in cases where, before the preparation of the territory surveying project, a public easement in relation to the land plot was not established, but the need for it is obvious? Is it possible to display the planned
(my italics - D.Sh.) the boundaries of the areas of public easements, in order to subsequently establish them by a regulatory legal act of a local government body? Or, if we go even further, is it possible in this case to establish a public easement directly by a land survey project within the required boundaries?
Based on the wording of clause 8, part 5, article 43 of the Civil Code of the Russian Federation (“8) boundaries of the areas of public easements.”) the answer to the first part of the question is ambiguous. On the one hand, if we approach the land surveying project from a legal and substantive point of view, then this urban planning document does not approve any independent binding decisions, such as, for example, the territory planning project, which and only it alone establishes red lines. The land surveying project either records the state of the territory that has already developed, and reproduces the decisions of urban planning and other documents adopted before it (displaying red lines from the survey project, displaying the boundaries of built-up land plots based on data from the state real estate cadastre, displaying the boundaries of territories of cultural heritage objects from projects of protection zones for such objects, etc.), or taking into account urban planning requirements and standards for the development of the territory, makes proposals (but does not approve decisions!) on the boundaries of the land plots being formed. In this sense, the territory surveying project serves as the basis, urban planning justification for future cadastral work and registration of land plots with cadastral registration. With this understanding of the land surveying project, its composition should reflect the boundaries of the coverage areas of already established
(my italics - D.Sh.) public easements, since in another case the wording of clause 8, part 5, article 43 of the Civil Code of the Russian Federation should have had the following wording: “
existing and planned
boundaries of the areas of public easements.” But on the other hand, if we proceed from the already noted feature of the territory surveying project to establish balanced, professionally and scientifically based urban planning requirements for the boundaries of the land plots being formed, then in what other document, if not in the survey project, can and should proposals be given for the establishment of public easements ?! In our opinion, only in the land surveying project! Thus, from a substantive and semantic point of view, it is worth recognizing that it is correct to display the planned boundaries of public easement zones in land surveying projects. And in order for this position to be impeccable from the point of view of urban planning legislation, it is necessary to amend paragraph 8 of part 5 of article 43 of the Civil Code of the Russian Federation, stating it in the following wording: “8) existing and planned boundaries of public easement zones.”
Let's consider the second part of the question posed above about how permissible it is to establish a public easement with a territory surveying project. Despite the fact that such a possibility is not directly provided for by land and town planning legislation, the following points in its favor.
As noted above, a public easement is established by law or other regulatory legal act of the Russian Federation, a regulatory legal act of a constituent entity of the Russian Federation, a regulatory legal act of a local government body (clause 2 of Article 23 of the Land Code of the Russian Federation). In accordance with Part 14 of Article 45 of the Civil Code of the Russian Federation, documentation on the planning of the territory is approved, respectively, by the Government of the Russian Federation, the highest executive body of state power of the constituent entity of the Russian Federation, the head of the local administration within fourteen days from the date of receipt of the specified documentation. The act of approval of territory planning documentation in the vast majority of cases is normative and legal. Thus, the external legal form is the same in both cases.
Further, to establish a public easement, public hearings are required (clause 2 of Article 23 of the Land Code of the Russian Federation). But territory surveying projects prepared as part of territory planning documentation (i.e. as part of a territory planning project) based on a decision of the local government body of a settlement or urban district are also subject to mandatory consideration at public hearings before their approval (Part 5 of Art. 46 Civil Code of the Russian Federation).
The requirements for the content of the act establishing a public easement and the list of information required to be reflected in it are not defined by law. Such an act can be either predominantly in text or text-graphic form (a separate legal act), or graphic (land surveying project). The requirement of the law on state registration of an easement in accordance with the Federal Law “On state registration of rights to real estate and transactions with it” (Clause 9 of Article 23 of the Land Code of the Russian Federation) can be implemented both on the basis of a separate regulatory legal act on the establishment of a public easement, and and based on the land surveying project.
An attempt to legislate the possibility of establishing easements on the basis of planning documentation was provided for by the bill “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Regulation of Easements,” prepared by the Ministry of Economic Development. The project was agreed upon with the Ministry of Information and Communications of Russia (A.V. Maslov), the Ministry of Natural Resources of Russia (V.V. Lozbinev), the Ministry of Transport of Russia (S.A. Aristov) and the Ministry of Regional Development of Russia (V.V. Shipov), but has not yet been accepted2 . At the same time, in our opinion, the establishment of public easements by the land surveying project fits into the logic of the process of urban development of the territory and would help eliminate duplicative administrative procedures when establishing a public easement in the manner prescribed by land legislation.
As for the land plots being formed, planned to be provided to individuals and legal entities for construction (clause 4 of Article 43 of the Civil Code of the Russian Federation), they are not yet independent objects of land, property and civil circulation. Therefore, in relation to them, the question of establishing a public easement when preparing a territory surveying project does not arise. At the same time, taking into account the above arguments, if it is necessary to encumber such land plots in the interests of local government or the local population after their formation and registration with the state cadastral register, in the territory surveying project it is advisable to determine the planned boundaries of public easement zones, so that subsequently establish them by special regulatory legal acts of local government bodies. Thus, by the decree of the Mayor of the municipal formation of Severodvinsk dated June 30, 2009 No. 169 “On the establishment of public easements on the territory of quarter 098 of Severodvinsk”3 permanent public easements for passage and access to land plots of apartment buildings and other capital construction projects of other types of permitted use , were established in accordance with the land surveying project for the territory of block 098, approved by Resolution of the Mayor of Severodvinsk dated July 30, 2007 No. 218, in connection with the registration of land plots with state cadastral registration. Thus, on the basis of the territory surveying project, which gave proposals for the boundaries of the zones of public easements on the land plots being formed, public easements were established in accordance with Article 23 of the Land Code of the Russian Federation, a regulatory legal act of a local government body after the land plots were registered with the state cadastral register.
Summarize. The wording of clause 8, part 5, article 43 of the Civil Code of the Russian Federation on displaying the boundaries of public easement areas in land surveying projects is not specific and defined enough. Unambiguously, without conflicting with the legislation, on its basis in land surveying projects it is possible to display the boundaries of the areas of coverage only of public easements already established in accordance with Article 23 of the Land Code of the Russian Federation. In order to manage the development of territories and reduce duplicative administrative procedures, it is proposed to make changes to the Civil Code of the Russian Federation that will allow both existing and planned boundaries of the areas of public easements to be displayed in land surveying projects, as well as to directly provide for the possibility of establishing public easements by the land surveying project.
Shinkevich D.V. –
Deputy General Director
for legal issues LLC "Institute
territorial planning "Grad",
Omsk
Maleina M.N. Encumbrance of private or public easements on buildings and structures. "Economy and Law", 2006, No. 7.
Arslanaliev M.A. Public easements during the construction, placement and operation of linear objects. "Business Law", 2008, special issue.
SPS ConsultantPlus: Consolidated regional legislation; Bulletin of regulatory legal acts of the municipality "Severodvinsk", No. 17, 07/09/2009.
Types of land easements and the purposes of their establishment
Private. You, as the owner of a land plot, have the right to demand that the owner of a neighboring plot provide you with the opportunity for limited use of his land.
Why is it necessary to establish a private land easement:
- It is necessary to provide passage or access to your property
- Need to lay wires or pipes for sewerage
- Provide water supply and other needs
Remember that establishing a land easement is a last resort only if the owner’s needs cannot be met in any other way.
Public. It is established by a legislative act when it is needed not by a specific person, but by the state, local government or the population of a residential area.
Why establish a public land easement:
- Provide passage or passage, as well as the passage and grazing of animals
- Carry out drainage work
- Harvesting hay
- The site may be inhabited by animals, and it will be required for hunting and fishing
- Research works
- To be able to easily access the coastal strip
The procedure for imposing any type of easement must undergo mandatory state registration. You have the right to receive money for the use of your land; the amount must be specified in the agreement. It is necessary to understand that the establishment of an easement is not a lease of land, but a separate, full-fledged procedure.
The cost of encumbrance on a land plot in public form
Based on the fact that an easement of this form is an alienation of a plot of land, the owner has the right to set the cost for such a procedure. The basis is alleged financial losses or the introduction of an encumbrance.
Lawyers recommend that this point be written down in the agreement and carefully considered, because at first glance, it may seem that no losses will arise. In practice, the situation is often different. In view of this, the owner of the plot can draw up an agreement and include in the price security measures and maintenance of the land in an appropriate manner. This is relevant if the encumbrance is located within the city limits, and the purpose of its alienation is the construction of a highway for public transport.
If, after approval of the restriction, it is revealed that the indicated cost does not correspond to real costs, a reference to the Land Code of Russia is allowed. The provisions allow you to make changes to agreements and draw up additions.
Strong arguments for the formation of an additional annex to the agreement are:
- Changes in land use and environmental management activities.
- The rights of the owner have been limited or expanded.
- Changes have been made to the legislative framework if one of the parties is a government agency.
- Both parties came to the agreement to revise the contract and make corrections.
- Availability of a decision of the judicial authorities of the executive branch.
How are public encumbrances regulated?
The private form of easements is regulated by the Civil Code of the Russian Federation, in particular, Article 274. The public type of encumbrance is regulated by the Land Code of the Russian Federation, Art. No. 23, including the terminology of restrictions, types and forms of encumbrance established in relation to the allotment, as well as features of the procedure.
The specificity of the public type is to determine the public interest, and not the individual owner of the land adjacent to the plot of land subject to easement. The concept was introduced into the Russian Land Code, namely Article No. 23, in force since October 30, 01.
A public easement must be registered at the state level in the Unified State Register of Real Estate on the basis of Federal Law No. 218 (Article No. 52) and the Land Code of Russia (Article No. 23, paragraph 9).
In accordance with this article, a public easement on a land plot is approved in accordance with current Russian laws or other regulations issued by the state or municipality. This is possible if the need for alienation arises to ensure state, administrative interests, as well as the population.
