A private easement on the land
The easement is one of the types of encumbrances imposed on a land plot, which consists in the right of limited use of third party land.
Land code article 23 provides 2 kinds of easements: public and private easement on the land.
An easement on land can be installed in several ways:
by agreement of the parties;
on the basis of a court decision;
in the manner prescribed by law.
Regardless of the "form" of education, the easement must be registered.
It is important to note that the private easement on land in any case can not be the subject of the sale, pledge agreement and cannot be transferred to persons who are not the owner of the property to allow access which the easement was established.
So, the owner of the site (other immovable property) may require the owner of a neighbouring (or otherwise) of land the establishment of a private easement-that is, to "ask" him to use the property for their own purposes.
The easement land is usually installed in the following order:
enable passage or passage on someone else's site;
ensure whether the water supply system or Sewerage;
the enable lines;
other situations where otherwise the needs of the owner of another parcel cannot be provided.
Thus, the private easement on land may be selected by mutual agreement of the parties. If there is no agreement, or the parties came to a mutual compromise, the "need" to establish a private easement on the land side is entitled to submit an application to the court.
But in this matter the legislator provided for some limitations. For example, a private forest easement may be established only by court order, agreement or act of public authorities; private water easement on the basis of a contract and the court's decision.
How to install a private easement on the land?
The easement for the land plot belongs to the category of real rights, and continues to exist as long as there is ownership of the land.
The owner of the easement called an "entitled person", and the one on whose land the servitude is set, – "liable party".
Accordingly, from this point of view we can divide the volume available to them right: the entitled person may only use the private easement, and the obligated party to dispose of.
The Civil code provides for the right of the owner of the land on which the easement is to charge for the use of the easement. But in this article there is a proviso: "unless the law provides otherwise". This refers to what is possible free setting of a private easement on the land, but the law has not provided.
As mentioned earlier, a private easement may be established either by agreement of the parties or by judicial decision.
The state registration of the easement is carried out on application, which is submitted to the territorial body of Federal registration service from the owner, the parties to the contract or the person authorized in accordance with the notarised power of attorney for the execution of registration actions or at the request of the bailiff (in case of existence of the judgment).
Along with the application the following documents:
The document, which confirms payment of the state fee. Stamp duty in accordance with article 333.33 is established for legal entities in the amount of 4 000 rubles, and for individuals – 1 000 rubles.
The documents confirming powers of the representative.
The agreement establishing the easement (the court decision).
Cadastral plan of the land plot on which is located an easement, with the mark of servitude.
Upon registration of the easement please remember the following:
If the easement was installed on the entire plot, cadastral plan, if registration is not granted.
The land owner after the establishment of the easement receives an encumbrance on his land.
If the parcel on which the easement is in common ownership, for its establishment the consent of all owners.
Without the easement, the land cannot be alienated.
Record an easement on the land is entered in the unified state register of property as a right and as one of the constraints.
Within 5 working days from the date of registration of the easement on it shall be reported to the owner (if he was not the applicant).
As the easement is terminated on land?
An easement on land may be terminated in the following cases:
At the request of the owner of the land on which the easement is located, if there is no need for further "content".
According to the court, if the further finding of the easement prevents use of the land plot to its owner.
Accordingly, the documents-grounds for termination of the easement will be the agreement on the termination of an easement or decision of the court.
It should be noted that the easement follows the fate of things for which he is "encumbered". That is, if the owner of the site decided to sell, together with the area transferred and the easement.
But, by the way, for the new owner it will not be "surprise", as information about all encumbrances imposed on a land plot, contained in the unified state register. Accordingly, in the extract from the unified state register all of that will be.
Court cases on easements on land
If you need to install a private easement on the land, and the land owner does not want to admit this and concludes a corresponding agreement, the citizen can go to court.
But here we should focus on the fact that the court cannot oblige the owner of the site to conclude an agreement for the easement; he just makes a decision, which will be the basis for registration of the encumbrance.
In the operative part of the decision must be listed all the conditions of establishment of an easement.
The Supreme Arbitration court established that the court may independently determine the conditions for the existence of the easement. In particular, it concerns travel/move through the area, which would satisfy both sides. If the court cannot make a decision about establishment of the terms of the easement because of the need for expertise, it is entitled to appoint the relevant expertise.
In the court's decision should also be provided information concerning the spatial location of an easement, which should be sufficient for entry in the unified state register.
If necessary, the court may be assigned to cadastral work. If the outcome and boundaries of the established easement satisfied the parties, the court renders a decision on the basis of the conclusion about carrying out of cadastral works.
If a citizen has any need for the easement on the adjacent or any other land then he should contact the owner of this site. Neither the tenant nor the land-users do not have this right. But the requirement that the easement is entitled to apply and landowner, and tenant.
As for the questions, "clearance" agreement on the establishment of an easement on the land, then the judicial practice in this matter is the same: it must be concluded in simple written form. Failure to observe this form shall entail the invalidity of the document.
The Ministry of economic development has established the necessary requirements for the content of the agreement:
data on parties to the agreement;
"initialization" of the real property on which the easement is located (its cadastral number, address, area, etc.);
purpose and objective the establishment of an easement on the land;
the limits of actions of an easement;
the fee for the use of the easement in case of its availability;
other terms of the agreement, which the parties consider necessary to be included in the text.
The question of whether the easement will be paid or free, causing more problems. This is due primarily to the fact that at the legislative level there is no uniform recommendations for establishing prices for the use of land in the form of an easement.
One way forward could be the assessment of specially authorized organization and determining at least the approximate value of "use," which was later negotiated by the parties