An easement is established to ensure passage and passage through a neighboring land plot, the laying and operation of power lines, communications and pipelines, provision of water supply and land reclamation, as well as other needs of the owner of real estate that cannot be provided without the establishment of an easement.
The establishment of a private easement is necessary to ensure access and meet the needs of the property owner, if this is impossible to do otherwise. At the same time, this can be done either voluntarily, by concluding an easement agreement or, in case of a dispute, by a court decision.
The rules on easement are scattered across various branches of law, which creates additional difficulties in an already complex topic. Therefore, their removal is carried out by the court. In this regard, for analysis we will take judicial acts.
After analyzing judicial practice, we can identify certain approaches to solving various types of problems encountered in life. We will talk only about private easements and for consideration we examined, in addition to the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation, the practice of our native region, namely the cases that reached the cassation of the West Siberian District.
Let's look at the most common issues that arise in courts regarding claims for the establishment of easements.
What parameters can be taken into account when calculating the cost of an easement?
In accordance with Part 5 of Art.
23 of the Land Code of the Russian Federation, the easement must be the least burdensome for the site in respect of which it is established. Accordingly, when calculating the cost, all costs can be taken into account, as well as the possible benefits from its use if the site were not burdened with an easement. The Ministry of Economic Development of the Russian Federation, in its letter dated November 3, 2009 No. D23-3607, indicated that “the proportionality of the payment for the use of a land plot represents its compliance with the inconveniences and restrictions that the owner of the land plot experiences in connection with the use of his plot by the holder of the easement.”
The Supreme Arbitration Court of the Russian Federation, in its Resolution No. 11248/11 of February 28, 2012 in case No. A45-12892/2010, explained exactly what parameters can be included in the cost of the easement, namely:
1. Material benefit that the owner of the encumbered plot could receive if he were free from the easement, for example, in the form of rent;
2. The nature and intensity of use of the site by the person in whose favor the easement is established;
3. Expenses of the owner of the encumbered plot to ensure the implementation of the right of the easement holder, for example, to organize and ensure a security and access regime, maintaining the road surface in proper condition, etc.
The Ministry of Economic Development of the Russian Federation, in turn, pointed out the possibility of establishing a fee based on an assessment report made in accordance with Law No. 135-FZ of July 29, 2009 “On appraisal activities in the Russian Federation.” This means that all of the above costs can be determined at current market prices. However, it should be borne in mind that this letter is purely advisory in nature and may or may not be taken into account by the court.
- The customer, who is the organizer of the open request for prices, is JSC EESC, [Legal address: 620014, Ekaterinburg, st. Boris Yeltsin, building 1] (hereinafter referred to as the Customer), hereby announces an open request for prices procedure and invites legal entities, individuals and individual entrepreneurs (hereinafter referred to as the Contractor) to submit their proposals for the right to enter into an agreement for the provision of services for assessing the market value of the right limited use of land (easement).
- Subject of the request for quotations: The right to conclude an agreement for the provision of services for assessing the market value of the right to limited use of a land plot (easement).
- Purchasing basis: PZ 2014. Protocol of the Central Control Commission No. 38 dated March 25, 2014. Purchase No. 14704, lot 2.
- This Notice of a request for prices is at the same time the documentation for a request for prices and is hereinafter referred to as “Documentation for a request for prices” or “Documentation.”
- An open request for prices is carried out on the ETP “B2b-energo.ru/” using its functionality. A detailed description of the services provided and the terms of the contract, as well as the procedure for an open request for prices, are contained in the Documentation, which can be obtained (downloaded) on the official website (www.zakupki.gov.ru) No. 31401015714, as well as on the ETP website “B2b-energo.ru” /" announcement No. 356305 dated 03/27/2014 and a copy of the notice published on the official website of JSC "EESK" No. 308/03/14 dated 03/27/2014.
- Subject of the agreement : The right to conclude an agreement for the provision of services for assessing the market value of the right to limited use of a land plot (easement), namely:
Assessment of a private easement (proportionate payment for the use of someone else's land plot under the right of limited use, the amount of which is equal to the losses that may be caused as a result of the establishment of an easement to the owner of the land plot encumbered by the easement in connection with the restriction of his rights as a result of the establishment of the easement) in relation to a land plot with cadastral number 66:41:0614015:425 located on the territory of Yekaterinburg, Sverdlovsk region.
- Essential terms of reference for the provision of assessment services:
- property rights to the land plot in respect of which the assessment is being carried out is the owner of the Russian Federation;
- the purpose of the assessment is to determine the market value of a private easement (commensurate payment for the use of someone else's land plot under the right of limited use for the purpose of laying and operating power lines and power grid property, the amount of which is equal to the losses that may be caused as a result of the establishment of an easement to the owner of the land plot encumbered with the easement in connection with the restriction of his rights as a result of the establishment of an easement) in relation to a land plot with cadastral number 66:41:0614015:425;
- intended use of the assessment results - the results of services for the assessment of the Objects of assessment are planned to be used to conclude an agreement on granting the open joint stock company "Ekaterinburg Electric Grid Company" the right of limited use (easement) of the land plot in respect of which the assessment is being carried out;
- type of value - market value;
- assessment date - the date of conclusion of the contract for the provision of assessment services;
- place of service provision: Sverdlovsk region.
- The term for the provision of services is no more than 5 (Five) working days from the date of conclusion of the contract for the provision of services.
- Requirements for the scope of services:
9.1. Performers are required to independently collect information and analyze it for:
- obtaining comprehensive information about the type and scope of rights to the Valuation Object contained in documents confirming existing rights to the Valuation Object (title, title documents);
- establishing other quantitative and qualitative characteristics of the Valuation Object, including those containing a description of existing rights to them.
9.2. The Contractor must conduct an analysis of the information provided by the Customer and independently collected by the Contractor about the Valuation Object, taking into account the degree of sufficiency of this information to determine the market value of the Valuation Object. If the information provided by the Customer and independently collected by the Contractor is insufficient, which significantly affects the reliability of the assessment of the Object of Assessment, the Contractor indicates this in the Assessment Report.
9.3. Performers are required to conduct a personal inspection of the land plot with cadastral number 66:41:0614015:425 and photograph it.
9.4. Contractors are required to collect and analyze market information in the following areas:
- collection and analysis of macroeconomic information and information in general about the local real estate market;
- Performers identify and justify the composition of macroeconomic factors affecting the Object of Assessment. If necessary, the Contractors will examine the overall state of the investment climate in the Russian Federation. The performers analyze the current situation and emerging trends in the local real estate market as a whole in the context of the tasks and purposes of the assessment;
- collection and analysis of information about the market/market segment to which the Valuation Object belongs;
- Executors identify and justify the composition and nature of factors determined by the location (belonging to a certain territory) of real estate, affecting the value of the Valuation Object.
9.5. Performers are required to analyze the most effective use of the Valuation Object. In this case, the assessment should be made on the basis of the assumption that the most effective use of the object of assessment is its use in accordance with the title/title documents and/or documents of the bodies carrying out accounting and inventory of land plots.
10. Requirements for preparing an assessment report:
10.5. As a result of services, the Contractors provide an assessment report prepared in accordance with the Federal standards for assessment of the Russian Federation (approved by order of the Ministry of Economic Development of the Russian Federation dated July 20, 2007 No. 254, 255, 256 (hereinafter referred to as the FSO of the Russian Federation)) and accompanying materials for assessment reports.
10.6. The contents of the assessment report should not mislead users of the assessment report, nor be subject to ambiguous interpretation.
10.7. Information provided in the assessment report, used or obtained as a result of calculations during the assessment, significant from the point of view of the value of the items being assessed, must be confirmed.
10.8. The composition and sequence of materials presented in the assessment report and the presentation of the assessment process should allow any user to completely reproduce the cost calculation and lead it to similar results.
10.9. The appraisal report must reflect all interim calculations, as well as all information obtained during the appraisal that is significant from the point of view of influencing the market value of the objects being appraised.
10.10. The report must be numbered page by page, bound, signed by the Appraisers (employees of the Contractors) who carried out the assessment, and also sealed with the personal seals of the Contractors or the seal of the legal entity with which the appraisers entered into an employment contract.
10.11. The appendix to the assessment report must include:
- all documents transferred to the Contractors by the Customer, as well as all documents and materials collected and used by the Contractors during the assessment process;
- photographs of the land plot whose limited use rights are being assessed;
10.12. The following must be reflected in assessment reports:
- an accurate description of the subject of assessment;
- details of the legal entity and cadastral value of the property being assessed;
- basis for the assessment;
- information about the Appraisers (location, bank details, information about the Appraisers’ membership in the self-regulatory organization of appraisers);
- information about the Customer for the assessment (including location, bank details);
- information about the encumbrance of the valuation object, if any (type of encumbrance and documents confirming its existence);
- applied assessment standards and rules;
- date of assessment (date of determination of value, date of assessment) of the assessment object (indicate the date as of which the value of the assessment objects is determined) and the serial number of the report;
- a list of assumptions and limitations that must be taken into account when conducting an assessment.
10.13. The assessment results are documented indicating the market value, including VAT and the amount of VAT. The final results are presented taking into account rounding to whole numbers.
10.14. The report may also contain other information that is essential for the completeness of the reflection of the method used by the Contractor for calculating the cost of specific valuation objects.
11. Maximum purchase cost: 60,000.00 (Sixty thousand) rubles, excluding VAT 18%, including all overhead and travel expenses.
12. Payment for delivered products is carried out in accordance with Section 2 of the draft agreement.
13. The Participant must have full civil legal capacity to conclude and execute the Agreement (must be registered in the prescribed manner and have appropriate valid documents to carry out activities under the Agreement). The Participant should not be insolvent or bankrupt, be in the process of liquidation, the Participant’s property in the part essential for the execution of the agreement should not be seized, and the Participant’s economic activity should not be suspended. Detailed requirements for participants are contained in the documentation for the request for quotations (Appendix No. 3. Terms of reference).
14. A participant has the right to submit only one application. If a Participant submits several applications, all of them will be rejected without consideration on their merits.
15. The application must be drawn up in the form given in the appendix to this request for prices, and be valid no later than June 09, 2014. The application must be signed by a person who has the right, in accordance with the legislation of the Russian Federation, to act on behalf of the Participant without a power of attorney, or a person duly authorized by him on the basis of a power of attorney (hereinafter referred to as the authorized person). The proposal must also be sealed by the Participant. If the Participant is an individual, the Application must be signed by him personally and certified by a notary, or by a person duly authorized by him on the basis of a power of attorney certified by a notary.
16. The application must be submitted in Russian. All amounts of funds included in the offer must be expressed in Russian rubles.
17. Start date for accepting applications: from the date of publication of the notice.
18. Closing date and time for accepting Applications: 04/01/2014 at 12-00 (Moscow time). The application must be submitted before the specified time in the following order: The application must be prepared in accordance with the requirements of the Documentation and provided to the Bidding Organizer in an electronic safe in accordance with the current regulations of the B2b-energo.ru electronic system within the prescribed period.
19. Date and time of opening of Applications: 04/01/2014 at 14-00 (Moscow time).
20. Applications for part of the volume of services provided are not allowed.
21. In connection with the above, the Procurement Participant must include the following documents in the application:
a) Application for an open request for prices in the form and in accordance with the requirements of the Documentation (Appendix No. 2);
b) Table of information in relation to the entire chain of owners (data on participants; in relation to participants that are legal entities - data on their participants, etc.), including beneficiaries (including final ones), as well as information on the composition of the executive bodies of the Participant (Appendix No. 4);
c) Consent to the processing of personal data (Appendix No. 5);
d) Certificate of classification of the Participant as a small/medium/large business entity (Appendix No. 6);
e) Original or notarized copy of an Extract from the Unified State Register of Legal Entities , issued no earlier than 30 days before the closing date for accepting Applications for participation in an open request for prices;
f) Certificate confirming the membership of the Appraisers (representative(s) of the Contractor) in the self-regulatory organization of appraisers;
g) Insurance policies confirming civil liability insurance of the Contractor and Appraisers (representative(s) of the Contractor);
h) A letter about the possibility of the presence of a representative(s) of the Contractor for face-to-face cooperation with the Customer throughout the entire period of provision of services within the time limits established by the Agreement;
i) Documents confirming the participant’s compliance with clause 6.3 of this technical specification (The participant must have on staff at least 3 appraisers representing different SROs. On the company’s staff, at least one expert appraiser must be qualified as an SRO expert, a certified real estate appraiser SRO).
22. No explanations are provided for this notice of the request for prices.
23. Place and timing of consideration of applications from procurement participants and summing up the procurement results: Ekaterinburg, st. Boris Yeltsin, 1, April 4, 2014.
24. The application must be completed in accordance with Appendix No. 2 to this Documentation.
25. The Customer will determine the Winner by April 4, 2014. The only criterion for selecting the winner will be the price offered by the participant to the open request for prices. The winner will be the participant who offers the minimum price.
26. Based on the results of an expert opinion on the evaluation of proposals received, the Procurement Commission has the right to reject Applications that:
— do not substantially meet the requirements for the preparation of this Documentation for the request for quotations;
— submitted by Participants who do not meet the requirements of this Documentation for the request for quotations;
- contain Applications that do not substantially meet the technical, commercial or Contractual requirements of this Documentation for the request for quotations.
27. The organizer of the request for prices provides for the possibility of conducting an auction procedure for lowering the price - rebidding, i.e. providing Request for Quotations Participants with the opportunity to voluntarily increase the preference of their applications by reducing the initial price specified in the Application. The rebidding procedure is carried out using an ETP. The procedure for carrying out the rebidding procedure on the ETP is determined by the rules of this system. A participant in the price request who participated in the rebidding and reduced his price is obliged, within one day, to additionally submit documents, adjusted to take into account the new price received after the rebidding, that define his commercial offer with the relevant files attached. A price change downward should not entail a change in other conditions of the Application. By decision of the Procurement Commission, the procedure for rebidding may be clarified.
28. Within 2 days after the Winner is determined, the Customer will notify him of this and within 5 days will sign the corresponding Agreement with him on the terms of this request for prices and the Winner’s application.
29. If the procurement participant’s application is of interest to the customer, in order to conclude the Agreement, such procurement participant must submit the following package of documents:
ü A certified and sealed copy of the Participant’s Charter in the current edition;
ü Original or notarized copy of an Extract from the Unified State Register of Legal Entities, issued no earlier than 30 days before the closing date for accepting Applications for participation in an open request for prices;
ü Certificate of entry into the Unified State Register of Legal Entities;
ü Certificate of registration of the Russian organization with the tax authority at its location on the territory of the Russian Federation;
ü Copies of documents certified by the Participant (orders, minutes of the meeting of founders on the appointment of a manager, etc.) confirming the authority of the person who signed the proposal, as well as his right to conclude the relevant Agreement based on the results of an open request for prices. If the proposal is signed by power of attorney, the original or a notarized copy of the power of attorney and the above documents to the person who issued the power of attorney are provided;
30. Responsible executive: Arzhannikova Evgenia Nikolaevna tel.;; fax (343) 359-00-59, email;
31. This purchase of an open request for prices is not a tender (competition, auction), and its conduct is not regulated by Articles 447-449 of Part One of the Civil Code of the Russian Federation, clause 2 of Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, and services by certain types of legal entities.” This request for proposals procedure is also not a public competition and is not regulated by Articles 1057-1061 of Part Two of the Civil Code of the Russian Federation. The Organizer has the right to refuse all proposals received for any reason or terminate the request for quotations at any time, without incurring any liability to Participants. This procedure for an open request for prices does not impose on the Customer any civil obligations to conclude a contract.
32.
Applications:
Appendix No. 1 – Draft agreement.
Appendix No. 2 – Application for an open request for prices.
Appendix No. 3 – Technical specifications.
Appendix No. 4 – Table of information regarding the entire chain of owners.
Appendix No. 5 – Consent to the processing of personal data.
Appendix No. 6 - Certificate of classification of the Participant as a small/medium/large business entity.
Who should be involved when considering the possibility of developing alternative passage options?
In addition to the fact that the court can involve persons with special knowledge in various fields, it is necessary not to forget about the owners of neighboring land plots.
The fact is that when considering, for example, alternative options for travel through other areas, it is necessary to take into account the rights of these owners and involve them in the consideration of the case, otherwise the case may be sent for a new trial (Resolution of the Arbitration Court of the West Siberian District dated 08.08.2014 in case No. A70 -11384/2013).
What is included in the subject of proof in claims for the establishment of an easement?
Or does the plaintiff have to prove to the court that he is being prevented from using the neighboring plot? The Presidium of the Supreme Arbitration Court of the Russian Federation spoke unequivocally on this matter, noting that one should not confuse the requirements to stop violations of property rights not related to deprivation of possession (Article 304 of the Civil Code of the Russian Federation) with the requirements to establish an easement (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 28, 2012 N 11248 /11 in case No. A45-12892/2010). These are different claims and their subjects of proof are, accordingly, different. As a conclusion, I note that more complete legislative regulation could remove some of the identified problems, but for now the courts have to do this.
How is a proportionate fee for an easement established?
A proportionate fee for the use of the easement is established based on the results of the assessment.
This value can only be established in strict accordance with the terms and provisions of the current civil legislation, since the payment of remuneration for the use of someone else’s property is provided for precisely by the norms of this legislation.
The payment for the use of the easement can be fixed both initially in the text of the agreement establishing the easement, and in the text of a specially drawn up additional agreement.
If we are talking about the formation of payment for the use of such an encumbrance in the text of the agreement, then the amount of this cost is indicated in a special section devoted to the established value of the easement, as well as the procedure for mutual settlements between the parties to the agreement.
The payment regime is also determined in the text of the contract or a specially executed additional agreement based on a certain list of data:
- The duration of the encumbrance, depending on the possibilities of achieving the goals for which it was established;
- The degree of encumbrance, which has a direct impact on the possibility of using the land plot in full;
- The total value of the established easement, determined based on the results of the assessment of the established encumbrance.
For greater clarity, a special payment schedule can be created as an annex to the contract, which will reflect the entire frequency of payments made depending on the period of use of the site.
