Servitudes on land plots are private and public. Land easements in legislation

Servitude in land law is ause restriction. In the domestic system, this concept was first introduced in paragraph 4.10 of the Regulations on the state privatization program No. 1535. Next, consider the types of easements on land legislation.

Historical reference

For the first time there were land servitudes in Romanright. The concept of servitus is literally translated as "slavery of a thing". In this case, the object served not only to the immediate owner. It was also used to derive benefits from a neighbor. In Roman law, there was a provision that his own thing does not serve anyone, that is, a person could not establish an easement on his site, but only on someone else's.

Formation of the regulatory framework

As you know, civil lawhas undergone a number of changes. In particular, new provisions were introduced relating to property-related relationships. Servitudes on land plots are regulated by Art. 274-277 CC. The essence of the norms is as follows. The owner of the property can demand from the owner of the neighboring plot to give him the opportunity to use his territory for limited use.

Appointment

Servitudes for land plots are establishedfor different purposes. For example, to create a passage / passage, laying and use of utilities, pipelines, communication lines, water supply. That is, easements on land are necessary to meet the needs of the owner, which can not be provided in any other way. They act as an encumbrance, which does not deprive the owner of the opportunity to dispose of and use the object.

Conditions for Establishing

Servitudes for land plots are introduced byagreement of the parties. These encumbrances must undergo state registration. If the owners have not reached a mutually beneficial agreement, the land easement is established by a court decision. It should be noted that an owner can enter into an agreement with a neighbor. The servitude may be established on demand or in the interests of the entity to which the site is granted on the rights of inheritable possession or permanent use. Encumbrance in the form of a limited opportunity to use part of the allotment involves charging fees. The cost of easement on the land plot is established by the owners (owners) themselves.

The specifics of the transaction

According to article 613 of the Civil Code, the owner woreproviding it for rent must warn that a land easement is installed on it. In the event that this condition is not fulfilled, the user may request a reduction in the amount of the payment or terminate the agreement by suing for recovery of damages. When concluding a loan agreement, the subject who transfers the object to the royalty-free operation must also notify the other party to the transaction of the existing encumbrances. If this condition is not fulfilled, the borrower may unilaterally terminate the agreement and demand compensation for the damage.

Classification

The rules provide for two types of burdens. A public servitude for a land plot can be established by the decision of the territorial authority on the basis of town planning documents and in accordance with the building rules. Such a burden is usually caused by the need to satisfy public or state interests. A private easement for a land plot can be established to limit the exploitation of plots and other real estate to ensure:

1. Reconstruction, construction, use and repair of buildings, buildings, as well as transport and engineering infrastructures.
2. Travel / passage through the territory belonging to another person, if otherwise you can not get to your own site.
3. Engineering training, protection of the area from flooding and flooding, construction of retaining walls.
4. The use of devices penetrating foreign territory at a certain height in the construction of buildings.
5. Repair and maintenance of common walls in the structures of blocked buildings.
6. Other needs of property owners, the provision of which cannot be carried out without the establishment of a charge.

Servitude cannot act asan independent subject of sale or pledge, as well as transferred in any way to persons who are not owners of the objects for which it is provided.

Cessation of encumbrance

It is carried out at the request of the owner.plot in respect of which servitude is established. Termination of encumbrance may be caused by the absence of grounds according to which it was provided for. The owner may apply to the court for elimination of the servitude, if its presence creates significant obstacles to the use of the site for its intended purpose.

Additional norms

Servitude is provided not only in the CC Encumbrance, for example, is regulated by the Federal Law No. 113 "On the Hydrometeorological Service." The servitude is established on the plots through which passage / passage to the stationary observation posts included in the state network is carried out. The order according to which the charge is introduced in this case is defined by the government in Resolution No. 972. Federal Law No. 72 regulating the operation of homeowners ’associations stipulates that a limited right to use them may be established by third parties. by individuals. At the same time, it is not allowed to prohibit the imposition of a burden if it is necessary to provide access for other entities to objects that existed before adoption of the Federal Law No. 72. If there is a question about establishing a new servitude, it is decided by agreement between the interested person and the apartment owners. If a consensus is not reached, a dispute may be resolved in court. In order to clarify the provisions related to the imposition of a charge provided for by Federal Law No. 72, the Government adopted Decree No. 1223. They approved the rules for determining the size and demarcation of holdings in condominiums. In accordance with them, the territory of common use within the microdistrict, quarter is to be leased or owned by a partnership of owners or homeowners only subject to the introduction of the necessary easements and restrictions.

Other cases

In the Federal Law №123 defined the ability to enterburden on plots to meet the needs of livestock breeding. The need to establish an servitude may also arise during the reclamation of a plot, for example, when it is drained to drain water. The corresponding provision is provided for by clause 3 of Article 26 of the Federal Law No. 4. Allotments that are located on the border with the territories of reclaimed land can be used with restrictions defined by the Land Code and Civil Code.

Additional types of burdens

In forest and water legislation alsoThe possibility of establishing servitudes is foreseen. According to their content, they are close to the burdens discussed above. Water servitude is fixed in Article 43 of the VK. Under the terms of the contract, the capabilities of the subjects to whom the relevant objects are provided for long-term or short-term use may be limited in favor of other persons. A private water servitude may be established by a court decision. It should be noted an important point. The rules on servitudes stipulated by civil law apply to water bodies in the part that does not contradict VK.

Goals of encumbrances

Water servitude, according to Article 44 of the VC, can be established for:

1. Water intake without the use of facilities, technical devices and facilities.
2. Run and watering livestock.
3. Operation of facilities as a means of communication for boats, ferries, small boats.

The law may provide for other purposes. To exercise a limited right to a water body there is no need to obtain permission for use.

Specificity

The peculiarity of public servitude on a water bodyconsists in the fact that one side is the owner, and the other is an unlimited number of persons who use. At the same time, the latter are not owners. A private easement to a water body is established between non-owner users.

Forest Fund

The rules for using its territories are fixedin the LC. In accordance with Article 21 of this Code, citizens are free to stay on land, both incoming and not included in the forest fund. At the same time, the possibility to use the territories of the latter category may be limited in favor of other interested subjects. The basis for the establishment of a forest servitude is a contract, a decision of a state body or a territorial authority, as well as a court instance. Installed encumbrance must go through the registration procedure. If there is no agreement between the interested subject and the owner of the territory, the dispute is considered by the court in accordance with the suit of the first one. A public servitude, in accordance with the LC, assumes that one side is the owner of the territory, the Russian Federation, and the other is an unlimited number of persons who use it. At the same time, the latter are not owners. When establishing a private servitude, the parties to the transaction are exclusively non-owners. Decisions of government institutions (state or local), providing for the introduction of encumbrances in the territory, can be challenged in court in the prescribed manner.