Private or personal easement: what it is, what it is, when it cannot arise, also the grounds and procedure for establishing it on a land plot, sample agreement

Would you like to consult a lawyer for free? Write to the chat on the bottom right or call the hotline, calls within the Russian Federation are free. We accept questions any day of the week.

Situations where access to vital objects for the owner of a land plot and their use are possible only by using the territory of a neighboring land plot are resolved with the help of a legally designated land easement. For more information about what an easement on a land plot is in 2021, read further in the article.

What is a land easement?

Art. 274 of the Civil Code of the Russian Federation defines the concept of easement as granting the owner of a land plot the right to limited use of a neighboring plot. Answering in simple language the question of what a land easement is, we can cite as an example a situation where the owner of a plot of land has no other access to a common well except through a neighbor’s plot.

An easement is established between the owner of a land plot and his neighbor, who requires partial access to this plot, according to an officially formalized agreement, which is then registered in Rosreestr.

If there is no agreement from the party subject to the encumbrance, the dispute is transferred to the court.

Types of land easements

From a legal point of view, encumbrances on a land plot come in the form of:

A private easement, which is applied as a result of an reached and registered agreement in the interests of certain individuals or organizations. A private easement is most often of a paid nature, which arises due to the demand of the owner of the plot encumbered by the easement from citizens and legal entities for monetary compensation for the inconvenience they cause. The exceptions here are cases when federal legislation is used that requires the use of a gratuitous encumbrance, or when the owner of the encumbered plot voluntarily refuses payment.
A public easement established on the basis of a regulatory document of a government body or municipal entity. Its establishment is subject to the territories of land through which communications for public use are carried out. In this case, the land owner cannot claim monetary compensation in connection with the imposition of an encumbrance.

Also, easements on land plots are classified according to the temporary factors of use of the plots. They are divided into:

Urgent, defining a specific period of its validity or indicating an event upon the occurrence of which the easement is revoked. Typically, such a burden is imposed when laying communications and other works, upon completion of which the easement is terminated.
Permanent, allowing the use of land without time restrictions. Most often they are used when land plots are located on the territories of state natural objects.
Permanent-temporary, when the need to use land arises sporadically over an indefinite period. This is usually due to situations that depend on the time of year, for example, during the spring thaw.

Key differences

The various types of encumbrances discussed above are characterized by fundamental differences:

While a public easement is focused on the large-scale needs of using a site in municipal and state interests, as well as solving the problems of a wide range of people, a private easement is intended to ensure the civil rights of a narrow circle of individuals and individual organizations.
On the other hand, a private easement has an advantage for land owners in its compensated nature, which the public version of the encumbrance lacks.
In addition, public encumbrances are based on regulations, while a private easement is based on the requirements of the landowner, individual organizations or groups of citizens.

Customer Reviews

Gratitude to Kavalyauskas V.A. from Astafieva A.S. I express my gratitude to the Legal Agency and in particular to lawyer Vasily Anatolyevich Kavaliauskas for the skillfully done work. Vasily Anatolyevich advised and prepared all the documents necessary for court proceedings. As a result of the consideration of the consumer rights case, the result and the high amount exceeded all my expectations. Thank you very much for your qualified work and professionalism.

Sincerely, Astafieva A.S., 03/01/2019

Gratitude from Balitskaya A.S. I express my deep gratitude to Alexander Viktorovich Pavlyuchenko for his efficiency and professionalism in resolving controversial issues. The pre-trial settlement was completed as quickly as possible.

Balitskaya A.S., 05/15/2019

Gratitude from Bolotin V.S. I thank Alexander Viktorovich Pavlyuchenko for the work done as part of the investigation into the administrative case. I am especially grateful that almost all activities within the framework of the case were carried out by Alexander personally, without my involvement, which significantly saved my time. I would also like to note the efficiency with which the work was completed. I would like to wish Alexander further success in his professional activities and the successful completion of all current and subsequent cases, restoring justice to his clients.

Bolotin V.S., 02/12/2017

Gratitude from Evgeniy N. I express my gratitude to Alexander Viktorovich Pavlyuchenko for the qualified management of my case, competent advice and informed decisions, which led to compensation for all claimed losses.

Sincerely, Evgeniy N., November 17, 2017

Gratitude from Komardin I ask you to express my gratitude to lawyer Alexander Viktorovich, who competently and clearly explained to me my further actions to solve the problem that my relatives found themselves in.

02/11/18 Komardin S.I.

Gratitude from Plisetsky V.V. I would like to express my gratitude to Sergei Vyacheslavovich Mavrichev for his sensitive attitude and understanding towards clients. The issue was resolved within one day. I am very grateful to Sergei Vyacheslavovich.

Plisetsky V.V. October 19, 2018

Gratitude from gr. Tiuntsova G. A. I asked for advice from your “Legal Agency of St. Petersburg” - regarding deception by one person who presented himself as an employee of Rospotrebnadzor of the Krasnoselsky district, Novichkov A. A. Offered me a service - before the New Year, go on a tourist trade union voucher to Moscow on the Sapsan railway transport. I refused due to the manipulation of the placement of seats - in different trains, and then by car. Lawyer Sergei Vyacheslavovich Mavrichev handled this case and provided consultations. I thank you for such a sensitive and attentive attitude in office work, which was denied at the 58th police department of the Vyborg district, under Art. 24, 144, 145 of the Code of Criminal Procedure of the Russian Federation, I now have the right to appeal the conclusion and will send an application for further investigation to the district prosecutor's office.

Tiuntsov G. A.

Review by Egorova A.N. I, Egorova Antonina Nikolaevna, am very pleased with the consultation of Yuri Vladimirovich Sukhovarov. Thank you for your attentiveness and understanding. I wish you further professional growth.

Gratitude from Matvey Fomin I, Matvey Alekseevich Fomin, am grateful to Vasily Anatolyevich Kavalyauskas for the timely legal advice and prompt assistance in resolving my issue. Calm and decisive. Thank you.

Fomin M.A.

From Pravikovskaya N.B. I express my gratitude to the staff of the legal consultation: Andrei Valerievich and Dmitry Konstantinovich, who helped me resolve the unpleasant situation with the Pyaterochka store.

The issue was resolved in my favor without delay and quickly. They apologized to me and I received monetary compensation, all without lengthy litigation. Once again, thank you very much!

What is the basis for the creation of an easement?

Art. 23 of the Land Code of the Russian Federation establishes that the basis for the emergence of an easement on a plot is a list of reasons and cases, consisting of:

the need to pass or drive through a land plot if there is no other way;
requirements for the use of the territory for the passage of farm animals and their grazing, haymaking in certain periods;
the need for drainage work;
requirements for the use of land for hunting and fishing;
the need to repair communications arises;
the need to use the territory for research and survey work within a certain period;
when the site is used for the purposes of research and survey work for a certain period.
the emergence of personal needs of the owner of a neighboring plot, which cannot be satisfied without using the territory of this plot.

The various purposes of establishing a land easement affect its type and the method of implementing this procedure.

Easement in relation to a site in state or municipal ownership

Chapter V.3 of the Land Code of the Russian Federation (“Establishment of an easement in relation to a land plot located in state or municipal ownership”) was introduced by Federal Law dated June 23, 2014 N 171-FZ.

Now the Land Code provides for the possibility of establishing an easement in relation to a land plot that is in state or municipal ownership). If such a plot of land is provided for permanent (indefinite) use, lifelong inheritable possession, or for rent or gratuitous use for a period of more than one year, in order to conclude an agreement on the establishment of an easement, it is necessary to contact the land user, landowner, tenant (clause 1 of Article 39.24 ZK RF).

Establishment of a land easement in 2021

In 2021, easements are established according to legally established options in the form of:

Registration of a resolution by an authorized body of local government, municipality or state. The adoption of a resolution is preceded by a public hearing on the imposition of the necessary restrictions.
A general agreement between a group of land owners or interested parties.
Court ruling.

In this case, the procedure for establishing a public easement consists of:

announcements of hearings by local authorities;
drawing up a resolution following the hearing;
announcement of the results of approval for the use of the site, indicating the demand for compensation on the part of its owner;
registration of easement in Rosreestr.

It is also possible to establish an easement on a land plot based on the results of voluntary approval.

In this case, the interested party approaches the landowner with a request to obtain the right to partial use of his plot of land.

In this case, both parties must draw up an agreement in which it is necessary to indicate:

a column indicating the consent of the landowner to establish an encumbrance;
rights of both parties;
their obligations;
purposes of use;
area and coordinates of the territory;
the period for which use is intended.

This agreement also requires registration with Rosreestr. After this procedure, the contract becomes legal and is valid from the date of registration of the encumbrance. As a result, the territory specified in the agreement can be used by the interested party, and the owner of the plot has the opportunity to claim appropriate monetary compensation.

If the parties fail to reach an agreement, the applicant for the establishment of an easement on a neighboring plot of land may go to court.

Challenging the normative act establishing an easement in court. Jurisdiction of the dispute

Persons whose rights and legitimate interests are affected by the establishment of a public easement can protect their rights in court, that is, demand in court that the said legal act be declared invalid (Clause 8 of Article 23 of the Land Code of the Russian Federation as amended, valid until September 1, 2021) .

From September 1, 2021, paragraph 14 of Article 23 of the Land Code of the Russian Federation contains the following rule of law:

“Persons whose rights and legitimate interests are affected by the establishment of a public easement may protect their rights in court.”

Paragraph 1 of Article 61 of the Land Code of the Russian Federation provides that ... a normative act that does not comply with the law or other normative legal acts and violates the rights and legally protected interests of a citizen or legal entity in the field of use and protection of land may be declared invalid by the court.

According to Part 1 of Article 27 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities.

According to paragraph 2.1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 58 “On some issues arising in judicial practice when arbitration courts consider cases challenging normative legal acts,” an application for declaring a normative legal act invalid can be filed with the arbitration court if Federal law directly provides for an appeal of a normative legal act to an arbitration court, and also, if the federal law contains an indication for the consideration of disputes in a certain area of legal regulation in an arbitration court, since this means, among other things, the possibility of appealing to an arbitration court of normative legal acts in this domain.

Thus, the legislator, in addition to connecting the subject of the dispute with the implementation of entrepreneurial and other economic activities, determined the need for the court to establish a federal law that would bring the consideration of these cases within the competence of the arbitration court.

Based on the provisions of paragraph 8 of Article 23 and paragraph 1 of Article 61 of the Land Code of the Russian Federation, which do not contain instructions that disputes regarding the invalidation of a normative legal act establishing a public easement are within the competence of arbitration courts, such disputes are not subject to consideration by an arbitration court.

Considering the above, for the protection of your rights, in this case, you should apply not to an arbitration court, but to a court of general jurisdiction in the manner set out in the Code of Administrative Proceedings of the Russian Federation with an administrative statement of claim to invalidate a normative legal act of the Russian Federation, a subject of the Russian Federation, or an authority local government.

Package of necessary documents

In the process of registering an easement with local authorities, it is necessary to provide a package of documents consisting of:

passports for individuals and individual entrepreneurs and constituent documentation for a legal entity;
an application to provide the applicant with access to a neighboring plot, drawn up in any form;
details of this plot in the form of cadastral number, its area and other similar data;
written notification to the land owner;
indications of the grounds for introducing an easement;
an agreement between the parties or a court decision on the need to provide access to a neighboring plot of land.

At the final stage of registration of an easement during its state registration in the Unified State Register of Real Estate, you must have a package of documents consisting of:

applications for making adjustments to the federal database in relation to the encumbered property;
passport or constituent documentation depending on the applicant’s status;
cadastral documentation in the form of a boundary plan, etc. information;
title documentation for land;
instructions on the grounds for introducing an easement;
a receipt certifying payment of the state fee for registration in Rosreestr.

For an individual, the state duty is 1.5 thousand rubles, and for a legal entity – 6 thousand rubles. The registration procedure should not exceed 10 working days.

For what period of time is it set?

According to Federal Law No. 43, Part 2, Article 16, the validity period for a land easement is established:

does not exceed two years if used for the purposes regulated by paragraphs 2 and part 3 of Article 16;
permanent validity period if used in accordance with the purposes of operating linear facilities of federal, regional and state significance (Federal Law No. 43 in part 2, article 1);
does not exceed five years if used in cases that are not provided for by federal legislation and a shorter period is not declared.

For easements of various types, the law defines the following terms, which are established in accordance with Federal Law No. 43:

from 10 to 49 years for a public easement;
for the period of construction, repair and reconstruction;
no more than 1 year in the case of a public easement issued in accordance with Article 39.37, paragraph 5 of the Land Code.

You will find more information about what types of easements there are and what their classification is by duration in this material.

Validity

As already mentioned, easements can be urgent or indefinite. The accompanying agreements may stipulate certain conditions for the removal of encumbrances. Reasons leading to this may include:

the arrival of the end date specified in the contract;
the occurrence of an event that terminates the encumbrance.

It should be taken into account that the easement does not cease to be valid when the owner of the land changes. Art. 278 of the Civil Code of the Russian Federation determines that the previously established encumbrance passes to the new owner.

Calculation of payment for land easement

A citizen who has ownership rights to a land plot encumbered with an easement can claim monetary compensation for its exploitation. But although the easement provides the right to receive payment for the encumbered plot, nevertheless, the amount of this payment must be adequate and proportionate to the inconvenience caused and possible losses.

The amount of compensation and the procedure for its payment are established based on the decision of both parties. But at the same time, the amount of payment must be consistent with the general rule for determining it, which is based on the proportionality of compensation and material benefits from the exploitation of the land without encumbrance.

The calculation of the fee for a land easement may correspond to the amount of rent or the cost of the plot area. In addition, the amount of easement compensation may be influenced by:

real expenses of the land owner for maintaining the good condition of the road, cleaning the approach to a public facility, freeing up space intended for laying communications;
the nature of the exploitation of the encumbered land;
the amount of damage incurred;
lost profit.

If the parties have their own reasons for determining the amount of compensation for the easement, they can use their rights, which allow them to deviate from the above rules.

However, in the absence of mutual understanding between the parties, a special examination is appointed by the court to determine the compensation amount.

Imposition of easements through court

A situation in which a citizen who wants to gain access to partial use of a neighbor’s land plot and the neighbor himself do not reach mutual understanding can only be resolved by the court. However, before going to court, an applicant for the use of neighboring territory must:

draw up the text of the easement agreement and send it to the future defendant;
carry out a land survey to justify the establishment of an encumbrance;
assess the cost of using someone else's land.

At the same time, the plaintiff should not lose sight of the fact that the imposition of an easement should create inconvenience for the owner of the plot to a minimum extent and at the same time be accompanied by the payment of compensation.

After this, the interested person has the opportunity to file a claim or petition in court. At the same time, he must provide the court with evidence of the need to use someone else’s land. The evidence base must contain information:

about the plaintiff’s lack of real opportunities to exercise his rights without using someone else’s land;
the inability to reach an agreement with the owner of the neighboring plot;
the consent of the plaintiff to monetary compensation to the defendant within reasonable limits;
about the period of encumbrance.

If the court evaluates the weight of the evidence presented, it will make a positive decision on the claim. Then the executed easement, as already emphasized, must be registered with Rosreestr.

A positive court decision guarantees the plaintiff the unhindered use of someone else's land plot.

Permanent (perpetual) basis: what is it?

An easement on a permanent basis or perpetual use is the imposition of an encumbrance on a piece of land without specifying a period of validity. The territory can be used until the following moments:

until this need no longer exists;
if one of the parties violates the terms of use;
one of the parties died;
terms of use have changed.

The legislation does not strictly regulate the validity period for a perpetual easement. Its legal force is valid as long as there is a need for use in the site or the objects located on it.

Reference. The urgency of the problem associated with the limited use of land by a third party who is not the owner determines the validity period of the easement encumbrance.

An indefinite encumbrance is in effect continuously until real conditions change, which allow that the easement can also be urgent.

It is especially convenient to do this design when laying communications, road routes or electrical networks.

Reasons for overlap

There are the following reasons for imposing a permanent (indefinite) type of easement:

the deadlines for completing work through the neighboring area are blurred;
access to a linear or engineering facility is required on an ongoing basis or as needed;
priority location over another site;
in the absence of other approaches to one’s own site, only through someone else’s property.

More information about the grounds for establishing various types of easements can be found here.

Important. This type is used when imposing an encumbrance, provided that the territorial owners have a single land border (the owners are neighbors).

Design methods

According to the Land Code, the following methods for registering an easement are established:

According to the will of the owner , it is formalized through an agreement or legate.
Due to usukapia - due to the recency of acquisition of ownership (10 or 20 years ago).
By a court decision , an interested citizen can force through the court to impose an encumbrance on the land territory of a neighboring owner in order to fulfill his tasks (on what grounds you can apply to the court for a compulsory easement, read here).

What happens if the agreement is violated?

However, in practice, there is often a violation of the terms of use of the easement. In this case, it is necessary to draw up a report on this and have it certified by law enforcement or regulatory authorities. After this, the injured party has the right to file a claim with the judicial authorities.

During the proceedings, the court may make one of the decisions requiring:

termination of the agreement, which implies termination of access to the land plot:
imposing penalties on the initiator of the violation based on the terms of the agreement concluded by the parties;
compensation to the injured party for the moral and material damage it has suffered.

Video about the easement: