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Types of easements

Russian land legislation distinguishes two types of easement: public and private. The division is made depending on the legal meaning of the origin of the contract. The following differences between types are distinguished:

1. The basis for registration of a public contract with the Rosreestr authorities are regional regulations or resolutions of a separate municipality. A private restriction is introduced by voluntary agreement or by court decision.
2. The public option involves the free use of the allotment. The private owner is entitled to monetary compensation.
3. The procedures for introduction and termination are significantly different.

Public encumbrance is carried out in the interests of a large circle of persons. A private agreement is concluded between specific people (organizations).

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When does a public easement apply?

Public restrictions provide for the exploitation of land by a state or municipal entity.

Read more about how to lease state or municipal land.

The grounds for imposing an encumbrance include:

• laying communications (gas pipeline, power lines);
• driving and grazing livestock belonging to farms and peasant households;
• passage of a public road through private territory;
• carrying out research and prospecting work;
• construction of public facilities;
• the possibility of unhindered passage to the water source (shore zone);
• placement of information signs;
• performing drainage work.

An agreement on the public use of a site must be registered with Rosreestr. Users of a public easement must comply with sanitary standards, fire protection rules, and take care of the preservation of the land.

When is a private easement necessary?

An agreement on the limited use of a site is concluded by the owners of adjacent plots. The establishment of a private encumbrance is used in the following situations:

• the need to travel or pass through neighboring territory;
• carrying out and repairing communications (for example, water supply, electrical cable);
• construction and repair of real estate;
• providing for other needs of the owner.

If the owners of the plots cannot agree on joint exploitation, the decision will be made in court.

Practice shows that a simple easement is drawn up by agreement of the parties in the presence of several circumstances:

• minor losses from the imposed restrictions are expected;
• it is not profitable for owners to bring the case to court;
• the person to whom the claim is made receives monetary compensation.

The amount of payments is determined by the size of the expected damage.

How are easements further distinguished?

Encumbrances on a land plot can be classified according to their duration. A fixed-term contract is valid for a certain period (for example, during repairs). A perpetual easement is not limited by time and is permanent.

There is a division of agreements on the exploitation of land territories by objects:

• water (use of reservoirs);
• forest (the right to freely stay in forests, collect mushrooms and berries).

In addition, the easement is provided free of charge or on a paid basis. To calculate the amount of payments, you should take into account real costs, intensity of use and cost of loss of benefit. If a legal entity makes a claim for encumbrance, compensation is additionally subject to VAT.

What is the establishment of an easement on a land plot?

The establishment of an easement on a land plot in current legislation means the establishment of such an encumbrance that will allow owners or users of other plots to have the opportunity to ensure the free functioning of their land plots.

An easement on a land plot is established only in cases where it is not possible to avoid such a burden.

An easement can be established only if the purposes of its use on the encumbered site meet all the requirements of the current legislation, which can currently be satisfied.

Regardless of whether the established easement is public or private, the procedure for its establishment must be fully verified for compliance with current legislation, since such an encumbrance significantly limits the use of the site by its owner.

As part of such an agreement, it will be established whether it was possible to avoid the establishment of an encumbrance on a specific land plot, what is the size of the maximum permissible encumbrance, as well as the amount that the initiator of the encumbrance of the land plot will have to pay the owner.

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.

How is a public easement imposed?

Municipal authorities, organizations, gardening partnerships (SNT) and other groups of citizens have the right to put forward demands for establishing a procedure for exploitation of land.

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

1. Submitting an application to local authorities.
2. Announcing and holding a detailed public hearing.
3. Decision-making by the administration of the municipality.
4. Signing of a normative act.
5. Registration of the document in Rosreestr.

The easement begins after its official registration. The duration of the encumbrance approval procedure is determined by the administrative regulations of the region. The general period ranges from three months to six months.

How to register a private easement

A private encumbrance agreement is an agreement between the owners of plots that have a common border. The agreement is concluded according to the following scheme:

1. Interested parties agree on the joint use of land.
2. If agreement is not reached, the initiator of the easement files a claim in court.
3. The procedure, timing and cost of operating the site are determined.
4. The encumbrance is registered with the Rosreestr authorities.

The contract reflects all essential terms. At the request of the participants, a notary is involved in drawing up the document. If the form of the agreement is not followed, it may be considered invalid.

The clauses of the agreement include:

• personal data of the parties;
• characteristics of the object (area, cadastral number, purpose);
• purposes of use;
• size of the land plot (if the encumbrance is established on part of the territory);
• validity;
• price and payment method;
• procedure for operating the allotment;
• duties of the parties.

If the land is owned by several persons, the agreement differentiates the participation of all rights holders.

What documents need to be submitted

An easement is established on a territory whose boundaries are documented. Both the owner and the user of the disputed site can contact the Rosreestr branch.

The list of required papers includes:

• application for state registration;
• a copy of the applicant's identity card;
• documents confirming land ownership;
• agreement of owners or court decision;
• cadastral plan;
• receipt of paid state duty.

When the plot is under a mortgage, the consent of the credit institution is required.

sample voluntary easement agreement

Step-by-step instructions for establishing an easement

How to establish an easement on a plot of land? Distinctive features for establishing private and public easements are the procedure, which involves sequential actions of both parties, as well as the process of collecting and signing documents for registration of an easement on a land plot.

A private easement is characterized by the ability of two parties to voluntarily agree among themselves and involves the following procedure for registering an easement on a land plot:

1. the interested party makes a written request to the owner of the neighboring plot for the right to limited use of the territory belonging to him.
   In the letter, the owner initiating the establishment of a private easement, on a legislative basis, sets out the reason for his actions and confirms his right with articles of state laws. The grounds set out in detail in the petition are accompanied by a diagram of the part of the land plot on which the easement is supposed to operate, as well as a draft agreement.
2. An option to achieve voluntary agreement between the owners involves drawing up an agreement to establish an easement.
   The form of agreements for concluding easements was developed by lawyers taking into account all legislative acts regulating the process.

   You can purchase ready-to-fill agreement forms on websites with a detailed description of the procedure for establishing an easement by downloading a sample from the resource page.

3. Forms of agreements on establishing an easement on land plots signed by the parties are subject to mandatory registration in one of the branches of Rosreestr. After registration of the document, the agreement comes into force.

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

8 (800) 350-29-87

Important! The owner, acting as a party to the land territory encumbered by the easement, does not lose his rights to the land and the objects located on it; on the contrary, he has the right to receive from the initiator of the establishment of the easement commensurate monetary compensation if it is provided for in advance in the clauses of the signed agreement.

More detailed information on establishing a private easement on a land plot is presented in the following video:

Procedure for putting into effect a public easement: instructions

The procedure for enacting a public easement takes place in several stages and involves such necessary actions.

1. The first stage involves the submission of an application by the interested party .
   The law does not regulate to which executive authority this document should be submitted. Different regions of the Russian Federation have their own rules for accepting applications, and this function can be performed by both local administrations and the executive branch, whose responsibilities include resolving land issues. An application providing for the establishment of a limited right to use the territory must contain the following points:

• the name and cadastral number of the plot of land in respect of which documents are being drawn up;
• grounds indicating the possibility of encumbering a certain part of the land plot;
• the period of validity of a public easement established by law;
• information about the owners of land plots;
• information about citizens with whom a public easement is established by legislative acts.

• At the second stage, the application submitted by interested parties, with a supplementary diagram of the encumbered area, will be considered by the body that is authorized to make decisions on the issue of establishing a public easement. Legislative acts of the Russian Federation determine the period for consideration of the submitted application and the documents attached to it.
• Public hearings are usually held within the 30 days allowed for a decision to be made . Such participation of citizens is not enshrined in laws, but public opinion confirmed by the protocol can influence decision-making.
• An easement on a land plot or other real estate is established after the authorized authorities make a decision, which takes the form of a regulatory legal act, which indicates all the dimensions and characteristics of the plot of land encumbered by the easement. The legal act contains information about the owner of the territory, stipulates the grounds, purposes and period of validity of the easement.
• After entering information about the easement into the Unified State Register, it undergoes state registration and comes into effect.

Attention! The decision taken to establish an easement to the encumbered land territory is made not based on the results of generally accepted public hearings, but in accordance with the decision of the authorized authority provided for by law.

This is the procedure for establishing an easement on land plots.

When does the easement expire?

Russian legislation provides for the possibility of terminating an easement.

The encumbrance is canceled for the following reasons:

• the grounds for limited use of land have disappeared;
• the site was destroyed as a result of a natural or man-made disaster;
• the contract has expired;
• conditions have changed (a new agreement has been concluded);
• the land user refused the demands.

To remove the encumbrance, the owner must contact the Rosreestr authorities with an application for repayment of the contract.

The Land Code of the Russian Federation (Article 48) establishes additional grounds for termination of a public easement:

• violation of the purposes of use;
• damage to land resources;
• debt to pay the established fee.

The agreement can be terminated unilaterally or by mutual agreement of the parties.

How to challenge the imposition of an easement

Establishing an encumbrance is a transaction the subject of which is the use of real estate. Any transaction is contested in court.

The owner whose property is subject to an encumbrance should prepare a statement of claim. The plaintiff must prove that the conditions under which the easement arises deprive him of the opportunity to use the land for his own purposes.

Individual entrepreneur A. filed a claim with the Khostinsky District Court of Sochi against a private company for the cancellation of a perpetual easement. The court found that an underground water supply network runs through neighboring areas. There was an engineering center on the territory belonging to A. The organization's maintenance of equipment has significantly limited A.'s use of its property.

The examination showed that the engineering facility can be moved to a site owned by the company. The judge canceled the encumbrance and ordered the company to carry out the relocation work.

The imposition of an easement implies causing the least inconvenience to the owner. When considering a challenge case, the courts try to achieve a balance of interests of all parties to the agreement.