In what case can the court refuse an easement., Moscow | Question No. 14577523 dated 06/01/2021

There are not many ways to terminate rights to limited use of land; all of them are stipulated in land law.

An easement is a limited right to use a land plot, which imposes on the user certain rights, obligations, restrictions and prohibitions. For example, it is impossible to obtain a certificate of ownership of a plot, since it does not fully belong to the user.

The legislation provides for the division of easements into two large groups: private and public. Depending on the purpose for which the limited rights were established and on what grounds.

Grounds for termination of a public easement

As judicial practice shows, most often the basis for terminating a public easement is the expiration of the regulatory legal act by which the restrictive right was imposed, for example, upon completion of the relevant work. In this case, all work may be completed earlier than indicated in the act.

The owner of a land plot has the right to contact the local administration, representatives of local authorities, in order to terminate the public easement. No one can deny him this.

If, during the validity of the public easement act, the owner’s land plot was subject to cardinal changes of a negative nature (damaged or rendered unsuitable for further use), then the owner has the right to go to court to obtain material compensation or sell this plot in favor of the municipality according to its cadastral value. An independent assessment of the damage by an expert will come in handy here.

Grounds for termination of a private easement

Termination of a private easement is possible, according to the law, for several reasons:

The person in whose favor the act was drawn up renounced his rights to use someone else's land.
The grounds for using someone else's land for certain work have ended. For example, all communications had already been established, and the need for passage and sale of foreign land was no longer necessary.
The impossibility of using one’s right to an easement on someone else’s plot of land. Most often, this happens in cases where, when laying an electrical network through a neighboring area, certain situations arise in which performing the above actions becomes impossible. In this case, the termination of the easement occurs as if automatically. This does not mean that it is necessary to obtain a corresponding act on the abolition of the right to limited use of someone else’s property.

There are not so many ways to terminate rights to limited use of land; they are all stipulated in land law, so they are most often interpreted correctly even by citizens without a legal education.

Causes

Gaining legal access to someone else's property may be necessary for various reasons. Article 274 of the Civil Code of the Russian Federation gives citizens the right to register an encumbrance on land when required:

obtain the legal right to pass through the neighboring property;
lay communication lines, power lines or pipelines;
supply the area with water;
ensure the satisfaction of other needs of the land owner.

Based on the federal law “On Livestock Breeding,” the reasons for the encumbrance may be:

the need to provide animals with water;
inability to raise livestock;
the need to ensure drainage and collection of water.

A person who has received the right to own an easement acquires the status of “authorized”, and the owner of the encumbered land plot becomes an “obligated party”.

On this basis, the authorized owner has the right only to use the easement, and the obligated owner only has the right to dispose of it .

Execution of termination of an easement, methods of its termination

Since land relations are regulated not only by the Land Code of the Russian Federation, but also by the Civil Code, the latter quite clearly states how exactly the termination of an easement occurs. Thus, Article 276 of the current Civil Code of the Russian Federation states that the termination of the right to limited use of land occurs after the termination of the grounds for this right.

To obtain the appropriate act, you must apply to the court with a corresponding application or contact the local administration (department of land and property relations).

In cases where representatives of local authorities did not take any action to terminate the easement and did not issue the corresponding act, then an appeal to the judicial authorities cannot be avoided.

When to go to court?

If, due to the disagreement of one of the landowners, it is impossible to encumber the land , then the person who needs legal access to it has the right to rely on the establishment of an easement in court.

To do this, he needs to draw up a statement of claim and pay a state fee of 300 rubles for it.

The claim must contain:

information proving that the owner of the adjacent plot of land refused to sign the relevant agreement or left the plaintiff’s request unanswered;
conditions, purposes and period for which the easement is supposed to be established;
evidence that without establishing an easement, the plaintiff’s problems cannot be solved.

Along with the application, the court will need to provide a number of documents:

a receipt confirming that the plaintiff paid the state fee;
written evidence of the neighbor’s refusal or ignorance of the plaintiff’s request;
a document confirming that the applicant is the owner of the land.

Adoption of an act on the abolition of a public easement

In order to receive an act indicating that the right to limited use of land has been terminated, it is necessary to submit an application and documents to the department of land and property relations of local government representatives. You must have with you:

act establishing an easement;
certificate of ownership of the land plot;
identification document.

If the public easement was temporary in nature with a specified, precisely prescribed period, then the basis for issuing an act of termination is sufficient only that the documents establishing the onerous right indicate the expiration date. In this case, the cancellation certificate is issued no later than 10 working days. It must indicate the grounds on which the right was established, as well as the validity period. Additionally, it may be indicated whether the easement was paid or whether the municipality used the land free of charge.

If a public easement was established with an unlimited period of validity, then as a basis for its termination, additional documents will be required confirming that the need to use the land of a particular owner has ceased. For example, you can request a certificate of completion of road repair work or the laying of communication networks.

Procedure for establishment and registration

An agreement between landowners is concluded in writing in accordance with the norms presented in paragraph 1 of Article 161 of the Civil Code of the Russian Federation.

In the agreement, the future owner and user must stipulate:

purpose of establishment;
basis for establishment;
site addresses;
duration of the easement;
your responsibilities and rights;
restricted mechanism;
a number of final conditions;
your bank details and legal addresses.

By signing the agreement, the authorized owner receives the legal opportunity to use the land of the obligated owner on the agreed terms and to cease use when the grounds for the establishment no longer exist. The obligated landowner must voluntarily grant this right to the neighbor .

Through an agreement, the person who initiated its conclusion can be obliged to pay the owner of the plot on which the easement has been established a proportionate fee .

A proportionate payment is a monetary reward for the opportunity to use someone else’s property (in this case, a land plot) with limited rights.

Its value is established in the agreement and is equal to the amount of losses suffered by the owner of the encumbered land, since this led to the restriction of his rights.

After signing the agreement, the parties must submit an application for registration of easement , supported by the following documents:

the applicant's passport;
receipt of payment of state duty;
a certificate of establishment of an easement - an agreement, an administrative act certified by the seal of the relevant government agency, a court decision;
cadastral plan of the site with a stamp on the easement;
a certificate confirming representative powers (provided if the application is submitted by a representative).

The state duty , which legal entities will have to pay, is 4,000 rubles, for individuals its amount is 1,000 rubles.

a corresponding notification within 5 working days , and the applicant will be issued a certificate confirming state registration.

When registering an easement, landowners must pay attention to a number of nuances:

Without a plot of land, it is impossible to alienate an easement on your own;
the encumbrance of the entire plot is registered without a cadastral plan;
encumbrance of an allotment that is registered as common property is possible only with the consent of each owner.

Litigation regarding termination of easement

Often citizens have to prove their rights to full use of a land plot without restrictions by appealing to the judicial authorities. To do this, you must have with you exactly the same list of documents as when contacting local government representatives.

This is interesting: How to transfer land to individual housing construction through State Services

At the same time, the application states on what basis the competent and responsible authorities did not issue the corresponding act, that is, in addition to the documents, a corresponding refusal must be attached.

The validity of the refusal to terminate the easement is considered by the magistrates' courts, and in cases where one of the parties does not agree with the decision made, then by the higher courts. As a rule, if there are no grounds for continuing to use someone else’s land, then the municipality does not insist on such a right.

A citizen whose property has been damaged may file a lawsuit against local authorities for compensation for material and moral damage. The court, having assessed the damage caused, has the right to satisfy the claim in whole or in part.

Moreover, the court may offer the parties a solution in the form of purchase and sale of the owner’s land by the municipality. In this case, the final decision will remain with the owner, who has the right to accept such conditions or to continue to insist on compensation for damage in monetary terms while preserving the property.

Grounds for refusal of easement

APPELLATION

March 20, 2012 Maykop

Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Adygea, consisting of:

presiding Meister V.M.

judges: Thagapsova E.A. and Shisheva B.A.

under secretary Khamirzova A.A.

considered in court a civil case on the appeal of Sayfutdinov F.V. – representative of the plaintiffs Kolobova L.Yu. and Chelokidi E.V. on the decision of the Maikop City Court of the Republic of Adygea dated January 27, 2012, which decided:

To satisfy the claims of Kolobova and Chelokidi against Volkova, Vatutina and the Administration of the municipal formation "City of Maykop" for the imposition of an easement on a land plot located at the address: - refuse.

Having heard the report of Judge B.A. Shishev, the explanations of F.V. Sayfutdinov. – representative of the plaintiffs Kolobova L.Yu. and Chelokidi E.V. (by proxy), who supported the arguments of the appeal, the opinion of the defendants Volkova V.P., Vatutina A.F., who considered the court decision legal and justified, the position of the representative of the administration of the municipal formation "City of Maykop" Bobina L.D., judicial panel

U S T A N O V I L A:

Kolobova L.Yu. and Chelokidi E.V. filed a claim against Volkova V.P., Vatutina A.F. and the administration of the municipal formation "City of Maykop" on the imposition of an easement. In support they indicated that they are the owners of a residential building located at the address: . The size of the land plot along the facade is 8.84 m, most of which is occupied by the house. The defendants own a house in , and the land plot is owned by the municipality "City of Maykop". The distance from the wall of the plaintiffs’ house to the border of the defendants’ land plot is about 2 m. This (undeveloped) width of the plot does not allow the plaintiffs to fully exercise the powers of the owner of a residential building and land plot, in particular, it becomes impossible for the entry and passage of vehicles for business purposes, as well as for car storage purposes. In response to a request for limited use of a part of a plot about 40 cm wide, Volkova V.P. and Vatutina A.F. They refused. They believe that they have the right to encumber the defendants' land plot with an easement for the entry of vehicles. They asked the court to impose an easement on the land plot at the address: from the border of the land plot to the wall of the house to the depth of the entire building.

At the court hearing, the plaintiffs' representative supported the stated demands and asked to encumber the adjacent land plot with an easement.

The defendants' representative did not agree with the claims and asked that they be denied. He explained that Kolobova L.Yu. had obstacles in the use of real estate. and Chelokidi E.V. No.

The representative of the FBU "Land Cadastral Chamber", duly notified of the time and place of the trial, did not appear at the court hearing, did not notify the court of the reasons for his failure to appear, and therefore the court, guided by Article 167 of the Civil Procedure Code of the Russian Federation, considered this case in his absence .

The court made the above decision.

In the appeal, the representative of the plaintiffs Kolobova L.Yu. and Chelokidi E.V. asks the court's decision to be quashed and a new decision is made to satisfy the claim. He believes that the court unreasonably refused to order an examination in the case and asks to appoint a forensic construction examination in the case to obtain new evidence. Draws attention to the inability to use the property belonging to the plaintiffs without imposing an easement.

Having checked the case materials and discussed the arguments of the appeal, the judicial panel believes that the court decision should be left unchanged for the following reasons.

In accordance with the provisions of Articles 274 and 277 of the Civil Code of the Russian Federation, a necessary condition for establishing an easement is the inability to meet the needs of interested parties to enter their land plot in any other way. In addition, the implementation of an easement, even when it is established, should be the least burdensome for the land plot in respect of which it is established.

When filing a claim, the person demanding the establishment of an easement must confirm the need to grant him the right to limited use of someone else’s property to meet his needs.

The court of first instance, refusing to satisfy the stated claims, reasonably proceeded from the totality of established and properly assessed evidence presented by the parties.

In particular, the court of first instance established that the plaintiffs are the owners of the homeownership located at the address: (each with a share). The owners of the property located at the address: , are the defendants: Volkova V.P. belongs to the share, and Vatutina A.F. share. From the case materials, it appears that the length of the plaintiffs’ land plot along the facade is 8.84 m, of which 6.84 m is occupied by a residential building, the undeveloped part of the land plot along the facade is about 2 m.

Applying to the court with a claim, Kolobova L.Yu. and Chelokidi E.V. indicated that the existing undeveloped part of the site - the width of the yard, does not allow full use of the residential building and land plot, since it prevents the entry and passage of vehicles for business purposes, as well as for car storage purposes.

Meanwhile, from the public lands there is a free entrance and approach to real estate objects - a residential building and a land plot. These facts are not disputed by the parties.

Under such circumstances, the court’s conclusion that the lack of free entry of a car into the yard is not an obstacle for the plaintiffs in using the real estate they own in full for its intended purpose, without any restrictions, should be considered justified. In addition, as the court of first instance correctly noted, this circumstance also does not prevent the plaintiffs from using a passenger car.

The argument of the appeal that the plaintiffs do not have the opportunity to use the property they own without the imposition of an easement is subject to rejection for the reasons stated above.

This is interesting: What is the minimum distance between residential buildings

The argument of the complaint that the court of first instance did not order an examination is also untenable, since during the consideration of the case, issues requiring special knowledge and the need to appoint an examination in accordance with the provisions of Article 79 of the Civil Procedure Code of the Russian Federation did not arise.

The panel of judges believes that the court's decision is legal and justified, made with the correct application of the rules of substantive law and procedural law, and there are no grounds for its cancellation. The arguments of the appeal as unfounded are subject to rejection.

Guided by articles 328, 329, 330 of the Civil Procedure Code of the Russian Federation, the judicial panel

O P R E D E L I L A:

the decision of the Maikop City Court of the Republic of Adygea dated January 27, 2012 was left unchanged, and the appeal was not satisfied.

In what case can the court refuse an easement? | Kemerovo

Julia, good afternoon!

Clause 1 of Article 23 of the Land Code of the Russian Federation states that an easement is established in accordance with civil legislation.

Rules and procedure for granting and establishing easements

contained in Articles 274–276 of the Civil Code of the Russian Federation.

Clause 1 of Article 274 of the Civil Code of the Russian Federation determines that the owner

real estate (land plot, other real estate) has the right to demand from the owner of a neighboring land plot, and, if necessary, from the owner of another land plot (adjacent plot) to grant the right to limited use of the neighboring plot (easement).

An easement may be established to provide passage and passage.

through a neighboring land plot, construction, reconstruction and (or)

operation of linear facilities that do not interfere with the use

land plot in accordance with the permitted use, as well as other needs of the owner of real estate, which cannot be provided without the establishment of an easement.

An easement is established by agreement between the person requiring

establishment of an easement, and the owner of the neighboring plot and is subject to

registration in the manner established for registration of rights to real estate. If no agreement is reached on the establishment or conditions of the easement, the dispute is resolved by the court on the claim of the person demanding the establishment of the easement (clause 3 of Article 274 of the Civil Code of the Russian Federation).

Moreover, as the Supreme Court indicated in its review, approved. By the Presidium of the Supreme Court of the Russian Federation dated April 26, 2017, an easement can be established only if the owner of the land plot (real estate property) has no other opportunity to exercise his right to use the plot (property) belonging to him. An easement cannot be established if its terms deprive the owner of the land plot of the opportunity to use his plot in accordance with the permitted use.

And also if there are several options for passage (travel)

to the land plot through the neighboring land plot, the court should

proceed from the need to ensure a balance of interests of the parties and

establish an easement on terms that are least burdensome

for the owner of the land plot in respect of which

an easement is established.

As for the fee for the easement, the Supreme Court indicated that the fee for the easement is determined by the court based on the principles of reasonableness and proportionality, taking into account the nature of the activities of the parties, the area and period of establishment of the easement, and can take the form of either a one-time payment or periodic payments. If you disagree with the proposed amount of payment for the easement, the defendant has the right to present evidence to substantiate his objections (Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 65 of the Code of Arbitration Procedure of the Russian Federation). The amount of payment for the easement must be proportionate to the material benefit that the owner of the land plot acquires as a result of the establishment of the easement, compensating for the restrictions that the owner of the land plot burdened with the easement undergoes.

The fee includes reasonable costs incurred

from the owner of the property due to the restriction of his rights

property or creating conditions for sale by the owner

of the property to ensure the use of which the easement has been established, rights of limited use (for example, related to the need to organize passage through the land plot owned by the owner, the demolition or relocation of fences, in compliance with the access regime, maintaining part of the plot in proper condition), as well as those formed in connection with the termination of the existing obligations of the owner of the plot encumbered by the easement to third parties.

In this case, it is necessary to take into account the share of the land plot,

limited by easement in the total area of the land plot; term

establishing an easement; scope of land use restrictions

the site and the intensity of its intended use; character

inconveniences experienced by the owner of real estate,

burdened with an easement; the degree of influence of the easement on the opportunity

disposal of land.

Definition

A private easement can be established for the benefit of one person. A public easement can be established in the interests of an unlimited number of persons. The main provisions on public easements are given in Art. 23 ZK.

Unlike a private one, a public easement can only be established by law or other regulatory act of state or local authorities. An important indication is that in order to create a balance of personal and public interests, a public easement must be established taking into account public hearings.

In Art. 23 (clause 3) lists specific cases for which a public easement can be applied. These cases can be divided into 3 groups:

Permission to pass, drive livestock and drive through the service area (clauses 1.6).
Permission for various types of work on the official site (clauses 4.5, 7-9).
The right to locate and maintain objects of public interest (clauses 2.3).

At the same time, the wording “may be established” does not answer the question about the possibility of adding other cases to this list. On the one hand, this formulation can be considered as a general list that allows it to be expanded, and on the other hand, as a limiter on the reasons why a public easement can be established. Most experts are inclined to the second interpretation of the law.

If there are difficulties in using a site as a result of a public easement, its owner has the right to demand payment for the use of the easement, as well as to defend his rights in court.

Some experts believe that a public easement is not an easement at all, but a restriction of property rights. This is confirmed by the following properties of such an easement:

For PS there is no authorizing subject, and it cannot be a subjective right.
For the substation, the fundamental property of the easement is violated - inseparability from the dominant plot, since in this case there is no such plot.
The PS is prescriptive in nature and does not depend on the owner of the site, while an emergency situation cannot be established without the participation of the owner.
For PS and emergency situations, there are formal distinctions, since the first is determined by the norms of the Land Code, and the second by the norms of the Civil Code. In particular, this difference is expressed in the need for public hearings, which is not very consistent with the principles of private law.

Customer Reviews

Gratitude from Kikkas V.P. Kikkas V.P. I am grateful to the Legal Agency of St. Petersburg for understanding the situation and timely assistance in my seemingly hopeless situation, personally to Denis Yuryevich Stepanov, I hope to continue to cooperate.

Kikkas V.P. 08.11.2018

Gratitude from P.V. Greshina I would like to express my deep gratitude to the employees of your company - Sergei Vyacheslavovich Mavrichev and Konstantin Vasilyevich Solovyov for their enormous support, for their competent explanation and good attitude towards people. I wish you success and prosperity.

Greshina P.V. 03/23/2018

Review by Marcheilo I.V. On September 24, 2021, I turned to Konstantin Vasilievich for legal advice. I would like to express my gratitude for your sensitive, attentive attitude and qualified assistance. I received a comprehensive answer to all my questions. They helped a lot. Thank you! Sincerely, Marcheilo Irina Vladimirovna.

Review by Gavrichkova A.N. I would like to express my deepest gratitude to Yuri Vladimirovich Sukhovarov for his humane attitude towards my problem and detailed professional advice on solving it. I wish I could meet such people in my life more often.

Sincerely, Gavrichkov Alexander Nikolaevich.

Review by Minina M.V. I would like to express my deep gratitude to Yuri Vladimirovich Sukhovarov for his competent advice and qualified assistance on my issue.

With gratitude, Minina Margarita Vladimirovna.

Thanks to Pavlyuchenko A.V. from Sonets V.V. I express my deepest gratitude to Alexander Viktorovich Pavlyuchenko for the consultation and competent approach to the matter, as well as the successful outcome in my problem. I also want to express my gratitude for your kindness. I wish you success in this work that is necessary for us.

Sincerely, Sonets V.V. 05/17/2018

Gratitude from Ustinova T.M. I would like to express my deep gratitude to Sergei Vyacheslavovich for the legal services provided when I had a difficult relationship with Beauty Salon LLC and Alfa-Bank.

Ustinova T.M. November 10, 2018

Gratitude from gr. Kolesnikova A.N. Let me express my deep gratitude to the Legal Agency of St. Petersburg, located at Spassky Lane, 12. For their professional and friendly assistance in resolving my issue! I wish to continue working, bringing benefit to all residents of St. Petersburg. And not only.

Kolesnikov Alexander Nikolaevich.

Position: Head of the Metro Implementation Sector

PS: Before your company, I contacted 5 companies on this issue and received unclear answers.

Gratitude from N.A. Uvarova I express my deep gratitude to lawyer Sergei Vyacheslavovich for his attitude towards me and my question. There are no words to describe the feelings of gratitude for the professionalism shown and the greatest human sympathy and understanding! All the best to you! Health, success in work and long life!

Thank you very much! Sincerely, Nadezhda Anatolyevna Uvarova, 07/25/2019

Review by G.N. Antropova To the lawyer of the Legal Agency of St. Petersburg A.V. Ermakov

I express my gratitude to you for your professionalism in protecting my interests in a criminal case, Andrey Valerievich, allow me to express my gratitude to you for your help and support. I note your high professionalism and skillful actions in defending my positions.

Best regards, G.N. Antropov

Prohibitions on public easements

The main cases of using a public easement are listed in the law (Article 23 of the Land Code). Based on this list, the relevant authorities refer to this law in their documents.

For example, the Resolution “On Public Hearings” of the Samara city administration lists cases of refusal to establish a public easement:

If the establishment of a substation will lead to the impossibility of using the site for its intended purpose.
The goal for which the PS is established can be achieved in another way.
The purpose of establishing a PS does not correspond to the cases outlined in Article 23 of the Land Code.

Options are also possible when the documents include expanded reasons for refusing a public easement. For example, in Art. 7 of the Law of the Republic of Crimea “On the placement of engineering structures” lists cases of refusal:

Activities carried out on a site under a public easement are prohibited for this site.
The purposes of establishing a public easement on a piece of land do not coincide with the purposes of this law.
Actions carried out under a public easement will make it impossible to use the entire land plot (3 months for plots intended for individual housing construction, private plots, gardening, 1 year for other plots).
Activities carried out under a public easement will make it impossible for other holders of this easement to use the site.
The location of the structure being built under a public easement does not correspond to the documentation.