Specifics of establishing a public easement

A public easement is

An easement, according to existing legislation, is the right to limited use of someone else’s property. The term “easement” is fixed and explained by the Civil Code.

The object of imposition of an encumbrance in accordance with Articles 274 – 277 of the Civil Code Russian may be :

• land plot;
• building;
• construction.

Practice shows that this type of encumbrance is predominantly established in relation to land ownership.

Simply put, if access to a neighboring land plot or, for example, to the shoreline of a public body of water, can only be achieved through transit through your property , then the interested parties (owners of an adjacent plot or the governing body of a municipality) have the right to demand the definition of an easement on your plot of land providing access to to a limited or unlimited number of persons.

In addition to the Civil Code, the procedure for determining , registering , validity and termination of easements is regulated by the following normative acts of legal regulation of the Russian Federation :

• Article 23 of the Land Code of the Russian Federation;
• Article 27 of the Federal Law of July 21, 1997 No. 122-FZ;
• Article 9 of the Forestry Code of the Russian Federation.

Conditions for establishing a private easement on a land plot

A private easement is the right to limited use of someone else's land. Those. An easement is needed in order to provide you with the opportunity to fully use your land plot, of course, in the presence of objective obstacles to this and the absence of alternative passages and driveways. Such an easement is established in the interests of a specific individual or legal entity.

What conditions must be met in order for you to have the right to demand the establishment of an easement:

1. Inability to fully use your land plot (lack of passage, passage, possibility of supplying communications, etc.)
2. Lack of alternative options for using your land plot, except through someone else's neighboring land plot
3. The establishment of an easement should not be contrary to the type of permitted use of such land plot

Only if the above conditions are met, you may have the right to demand the establishment of an easement on a neighboring plot of land. Therefore, before asking the owner or the court to establish an easement, it is necessary to check the presence of the above conditions.

IMPORTANT : there are cases when the inability to use the land arises due to deliberate actions on the part of third parties, and that in this case it is necessary to demand not the establishment of an easement, but the elimination of obstacles to the use of the land plot (more details at the link).

Private and public easements

According to the function performed , registration procedure and user , easements are divided into :

• private
• public.

Users of a private easement become a certain number of persons (owners of adjacent land use, energy facilities, etc.) determined by agreement with the landowner of the encumbered property.

A private easement can be organized for the purpose of unhindered approach (access) to border lands or an exploited, reconstructed, constructed linear object or capital construction object.

It is worth saying that a private easement allows for monetary compensation for the exploitation of the easement .

In a situation in which an agreement has not been reached between the interested parties, the interested party has grounds to apply to arbitration to render a verdict on compulsory provision of access and determination of the easement.

A public easement is approved to satisfy the requirements of an indefinite number of persons (the state, the administration of a city or rural settlement) based on the results of public (public ) hearings (a way of expressing collective opinion on the subject of discussion).

The decision to impose such a burden is formalized in the form of a law or other regulatory act of the Russian Federation. subject of the Russian Federation, local government body. The approval of this type of restriction does not imply redemption or compulsory alienation, but only obliges the owner to use the site taking into account the interests of the users of the encumbrance.

An easement, depending on the goals and requirements of the interested parties, can be urgent (for a certain period) or permanent. As a rule, temporary easements are determined for short-term access to the territory for construction or reconstruction of linear objects or capital construction projects on the border property.

With this type of encumbrance , the agreement between the parties or the act on determining the encumbrance specifies a specific period after which the encumbrance is considered terminated.

In general there are a number of fundamental differences between public and private easements :

• Compensation for the use of an easement . When determining a public easement, the owner of the encumbered property has the right to a proportionate payment only if the determination of such encumbrance leads to significant obstacles to the operation of the property;
• Circle of interested people . A public easement is designed to ensure satisfaction of the requirements of an indefinite number of persons, while with a private type of encumbrance, access to land ownership is provided to specific individuals or representatives of organizations;
• Basis of the statement . A public easement is approved only by a legislative or regulatory act, and to determine the private type of encumbrance, a contract is concluded between the land user and the user of the easement.

Terminology and aspects of public form

A public easement is the transfer to another person on a voluntary basis of a number of rights to land that is at the disposal of another person. The public type is a type of easement imposed on the land plot. The specificity of this type of restriction lies in the adoption of an appropriate decision by authorities at the state level. Accordingly, the public type of encumbrance has a set of properties:

1. The right is subjective.
2. Limitation method.
3. There are two types of registration – temporary and without a deadline.

In addition, this form of encumbrance has additional indicators and is regulated by a number of articles of the Civil and Land Codes.

Establishment of public easements

The boundaries, period of validity and purpose of the encumbrance are determined by law or other regulatory act based on the results of public hearings. Before making a decision, the council listens to the arguments of both sides, both the landowner of the encumbered plot and the population of the city (rural settlement), representatives of the authorities in whose interests the encumbrance is supposed to be carried out.

The procedure for public hearings includes the stage of familiarization with the materials defining the subject of the hearing .

All interested persons or organizations have access to the materials, and the review period is established by the authorities responsible for ensuring that the parties are properly informed.

Clause 5 of Article 23 of the Land Code establishes that the functioning of an easement must be as difficult as possible for the land user .

The above rule maintains a balance of interests of the landowner and the population of an urban or rural settlement, to meet the needs of which the encumbrance is supposed to be imposed.

The procedure for registering an encumbrance is determined by the legislation of the municipality (city, rural settlement) and approved by a decision of the council of deputies.

State authorities with the authority to establish public easements in the interests of the state have :

• Ministry of Transport of the Russian Federation;
• Federal Road Agency;
• Federal Service for Hydrometeorology and Environmental Monitoring.

Purposes of establishing public easements

Possible purposes for determining the public type of encumbrance are established by the Land Code.

Conventionally, they can be divided into a number of categories :

• a permanent encumbrance for accessing (accessing) water management facilities and other public facilities in order to ensure the interests of the population of an urban or rural settlement;
• permanent or temporary easement for the implementation of engineering , construction and other work , for the purpose of draining border lands, emergency repair work on utility networks, organizing GGS points, etc.;
• exploitation of land ownership (or part thereof) for the agricultural needs of the population;
• exploitation of land ownership (or part thereof) for the purposes of hunting, fishing, and fish farming.

How is a public easement established on a plot of land?

Next, after going through the procedure of expressing public opinion on the issue and making a verdict on its result, it is necessary to establish the limits of the easement.

The boundaries of the imposed encumbrance (unless it applies to all land ownership) are determined using topographic and geodetic work, the results of which are documented and transferred to the authorities that carry out cadastral registration of changes in real estate.

As a result, the cadastral registration authority issues an extract from the state real estate cadastre for land ownership with certain exact boundaries of the part of the site on which encumbrances apply.

In the event that the encumbrance is established on the entire land ownership , and its boundaries correspond to the boundaries of the land plot , there is no need for topographic and geodetic work and obtaining a cadastral passport .

Special attention is paid to the fact that the alienation of land ownership to a third party, the encumbrances previously imposed on it, are preserved, and their provision becomes mandatory for the new owner or tenant.

Establishment stages

The public type of encumbrance for its determination requires coordinated joint actions of the administration of the urban (rural) settlement and the landowner.

The stages of determining the encumbrance are :

• Submitting an application . A person or body interested in maintaining the encumbrance in the interests of society applies to the administration of a city or rural settlement with a request to consider the possibility and feasibility of determining a public easement, and the application indicates the rationale for such a proposal, information about the land and its owner;
• Consideration of the application , informing the landowner ;
• Organizing and conducting the expression of collective opinion on an issue . Information about the place, date and time of public hearings is carried out in the local media (newspaper) using an announcement;
• Making a decision on determining the encumbrance . The decision is made by drawing up a resolution and publishing it in the local media (newspaper).

It is worth noting that the period for making a decision based on the results of public hearings is determined by the legislation of the municipality and is on average 3 (three) months from the date of consideration of the application of the interested party.

• Registration of encumbrance . As a rule, the administration of an urban or rural settlement ensures state registration of the encumbrance and preparation of all necessary documents.

If the owner's rights are violated

When the owner notices that the actions or rights of other persons specified in the public easement infringe on his personal interests, he has the right to appeal the decision to accept any established provisions of the easement by appealing to the court at his place of residence.

When unauthorized persons attempt to use the land plot as their own property, it is necessary to mention clause 2 of Art. 235 of the Civil Code of the Russian Federation, which regulates that no one has the right to seize property from the owner (except for specific circumstances).

Now you know what it is: a public easement on a plot of land. To adopt it, it is necessary to provide competent arguments and draw up a concept that does not contradict the interests of citizens living next to a specific land plot. If the project is useful, then its relevance and validity will help to approve the document. It is intended to protect the interests of the people, and therefore must meet all legal criteria.

Public easement fee

The legislation does not provide for a mandatory payment for the implementation of an easement, but the legislation contains a clause according to which the landowner has the right to demand compensation, provided that the easement creates significant restrictions on the use of the property.

The amount of such a fee is established on a contractual basis between the administration of the city (rural settlement ) and the landowner , and the very concept of creating significant restrictions on use is not specified and can be interpreted either in favor of one or the other side.

As a result, we can give advice: If the determination of an easement is inevitable, it is necessary to maintain friendly relations with the administration of a city or rural settlement and its population, and not enter into conflict. In this case, if the owner wants to receive compensation, it is more likely to satisfy the interests of both parties.

Public easement: what do you need to know about land surveying?

When determining the boundaries of land ownership, it is necessary to take into account several nuances that will help avoid the imposition of encumbrances on it in the future:

1. Only a qualified cadastral engineer should be trusted to determine the boundaries of land ownership
2. When determining the location of a site, take into account the interests of the administration of the municipality and its population;
3. Avoid getting engineering and technical support networks (energy supply networks, gas pipelines, water pipelines) within the boundaries of land ownership.
4. Determine the boundaries of land ownership, taking into account the possibility of unhindered access to the water body.
5. for general and individual use falling within the boundaries of land ownership

How to protect your rights in case of establishing a public easement?

If, when determining an encumbrance established to meet the needs of an indefinite number of persons, a landowner has objections, he has the right to apply to arbitration to protect his property.

In this case, the defendant will be the administration of the urban or rural settlement, in whose interests the easement is being determined.

There are several grounds that the court may recognize as significant and cancel the decision to determine the encumbrance:

• Failure to inform the land user about the application and public hearings in relation to the land plot owned by him;
• Failure to comply with the deadlines and/or procedures for holding public hearings and preparing a decision based on its results.

Disputes related to the cost of covering damage to the landowner and disagreements regarding the procedure for alienation of land holdings, including through redemption, are also resolved in court.

Determining a public easement is a multi-stage and complex process, but if there are justified demands from society or the state for the use of your land, the determination of such an easement is possible. To minimize risks, it is necessary to take a responsible approach to the selection, surveying and approval of the boundaries of a land plot. At the same time, we must not forget that the interests of society always prevail over the interests of its individual members.

When can it be installed and for what purposes can it not be installed?

To establish a public easement, you must obtain one of the legally defined documents:

1. Regulatory legal act of a constituent entity of the Russian Federation.
2. An act issued by a self-government body.
3. Act of the Russian Federation.
4. There are cases in which the establishment of a public easement is prohibited:
5. If the easement prevents the owner from fully disposing of his own property.
6. Upon receipt of a request from the owner to the self-government body for its cancellation.
7. If the initiator is unable or unwilling to hold a public hearing.