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Concept of the right of the limited using another's ground area

The real right arises by an establishment «the actual power over a thing». The domination given by this competence to the proprietor or the owner, is either full, or limited. In the second case it is a question of the so-called limited real rights.

It is known, that the real right is legal relationship only in the known borders recognised as the right. Presence of these borders as fairly marked V.I.Sinajsky [3], testifies to that, as the concept of absoluteness of real right is not absolutely exact, as the property right is the least limited real right. In questions of an estimation of the nature of the property right in the legal literature existed two approaches. So, F.K.Savini considered, that the property right by the nature represents the unlimited right. This position divided: G.F.Puhta, B.Vindshejd, R.Zom, etc., supposing only time restriction of the property right by the rights of the third parties on the same property. According to X. The metal-mana, G.Dernburga, V.I.Kurdinovskogo, G.F.Shershenevicha, D.I.Meyer, the property right is the qualified right. Century of the Item Gribanov found the second position of the most true as it «reflects the nature of the right» more precisely and has received fastening in the legislation of XIX century as the domination right over a thing in limits, statutory.

The civil law accurately divides all rights on real and obligations. Among the first besides the property right there are also many other things in which number the big place is occupied with easements. [4]

Concept of the easement as juristic institution, it was generated in days of the Roman Law. Under the easement (from an armour. servitus - thing service) since Roman Law times is understood the right to another's thing, consisting in using by it and belonging either to the certain subject, or a thing. [5] easements named the rights arising on the serving thing, and then this term has been extended and to similar relations. [6] in a literal translation servitus means «slavery of a thing», «its service» when the ground area served not only to the proprietor, but also it was used for benefits of the proprietor of the next site.

The generalised legal definition of easements tried to give still

A. Smith. The formulation given by Smith, is similar to formulation S background Koksedzhi: «all easements have arisen once as individual rights, but subsequently have been retrained - in real». However, Koksenzhi stood on a position of that easements were personal «by the nature». Smith, mainly, proved, that they were "originally personal. [7]

Follows has noted », as our legislation contains a number of easements in gross though it is direct them and does not mention. As an example to that, in the law of succession, the right of lifelong residing can serve in another's house, established owing to the testamentary gift (legacy). The granted right is possible, certainly to consider as the easement in gross. The easement represents the non-property, non-exclusive right of lawful participation in using the earth or the real estate belonging to other person. The owner of the easement does not possess the property right to this property, but only the right of use of this property in the certain limited

The purposes. Only owners of the earth or the persons possessing the right of lifelong inherited possession can create easements.

The owner of the easement has no right to sell, pawn, bequeath, give, lease the real estate or other over resolved by the easement in the image to interfere with the property rights of the owner of the charged site. Besides, if only the easement was not created as the exclusive agreement, the owner of the easement has no right to interfere with other persons, including the landowner, to use the earth or the real estate charged with the easement.

Easements in all legal systems traditionally are among real rights. From this follows, that the granted rights exist until there is a thing. In case of  destruction of a thing easement action stops also. As a rule, servitutnoe the right is not connected with the person of the owner of the easement.

Easements can be "predialnmmi" and "personal". The name "predialnyj" goes from the Roman Law and means «adhered to the earth».

Praedial servitudes are that serve for a raising of value of the earth as that, without dependence from the person of its owner. A condition of occurrence of the praedial servitude is existence of two ground areas belonging to different owners. As a rule, advantage of the praedial servitude passes (is transferred) by site transfer, to which advantage the given easement established. Encumbrance by the praedial servitude passes together with transfer of the charged ground area.

That the easement was considered predialnym, it is absolutely unessential, that dominating and serving sites had the general border (though in the Russian right the emphasis that sites should be next is placed).

The legal nature of the land easement consists that it represents the right of the limited using another's ground area and is caused by necessity to smooth inconvenience and the difficulties arising at existence of the right of a private property on the earth owing to non-uniformity of distribution of the natural blessings between the separate ground areas. The land easement as the legal design allows to use the ground area being in another's possession in limits in advance reserved and limited to the right. The main thing it that the owner of the easement does not own that part of another's earth which is "object" of the easement, and can use only it, and definitely.

The easement can be and mutual - road through the next sites.

The owner of the ground area can impose the maximum ban on

Penetration into borders of the earths. Such possibility is supported, in particular, by the right of protection of possession. But the nearby adjoining ground areas at such unconditional right of proprietors or users can create a movement problem on territory. The easement allows to solve this problem.

It is obvious, that a role of easements the more considerably, than more small the land property. And, on the contrary, the large land property provided on the big space with the various natural blessings, doing such property self-sufficient, for example, for agriculture conducting, gives few bases for development of institute of easements.

Easements have huge value at tenancy of the divided sites.

The establishment on a thing servitutnogo the right does not mean by all means discharge of the proprietor from using this thing: for example, having accorded the neighbour the easement on a right vypasa cattle on the given site, the proprietor of a site

Keeps the right to graze and the cattle on the same site. However when simultaneous using and the proprietor, and the subject servitutnogo the rights owing to the various reasons it is impossible, the using right of priority belongs to the subject servitutnogo the rights. In other words, at a collision of the easement with the property right the property right concedes (the proprietor, establishing the easement on the earth, thereby limits itself).

Prominent feature Roman servitutnogo the rights is expressed that the easement cannot consist in fulfilment (is available in view of - the proprietor of a serving thing) any positive actions. The proprietor of a serving thing should suffer only fulfilment by the subject of the easement of those or other actions constituting the maintenance of the easement, not to stir to it in using realisation, etc., but itself thus anything to do is not obliged. If on character of relations from the proprietor of a thing any positive actions such relation was considered as obligations were required.

The ground area, in interests of using which was established the easement, was called as the superior estate; the ground area, using which in this or that relation were constituted by the easement maintenance, was called as serving site. As the praedial servitude belonged to the person not personally, and as to the proprietor of the superior estate change of the proprietor of the superior estate automatically caused also change of the subject of the praedial servitude.

In servigutnom legal relation one party is authorised, another - obliged. The authorised person has the right to using bound party property. The bound party, in turn, is obliged to suppose such using.

If the proprietor carries out full domination over a thing the easement grants is only right partial domination. Thereby admits, that nobody can have the easement concerning own thing. The easement cannot oblige the proprietor to make any actions concerning the authorised person. Its duty - only to suffer using of another's person, not to interfere with it, not reducing thus value of the property. The easement concerning the easement cannot be established. As the easement represents the right to a thing it is the right. Accordingly it is impossible to establish the easement on the right, the easement can be established only on a thing.

The bound party possesses the property right to a thing, i.e. carries out domination over it. The proprietor has the right to use a thing, to consume the property. The authorised party, unlike obliged, has only the right of use of a thing, it posesses the right derivative of the property right. This party has the right not to a thing, and on use of its certain useful properties. The authorised party has not the right to consume a thing in which relation it possesses the easement right. [8]

Easements are carried by article 216 of the Civil code of the Russian Federation to number of the limited real rights. Their maintenance reveals in item 274-277 item. Point 1 of article 274 the easement is defined as belonging to the proprietor of one real estate (the ground area, other real estate) the right of the limited using by the next ground area of other proprietor. This right not only limited, but also the forced using as the easement is established for needs which cannot be provided without it. Thus encumbrance of the ground area by the easement does not deprive of the proprietor of a site of rights of possession, usings and orders this site. But, as fairly notices I.A.Ikonnitskaja,

Though the establishment of the easement does not deprive of the person of the right of use of the ground area, but it can be practically ceased. [9]

In item 216 GK the Russian Federations are called five real rights in addition to the property right which is the core. It is the right of lifelong inherited possession of the ground area (item 265 GK the Russian Federation), the right of constant (termless) using the ground area (item 268 GK the Russian Federation), the easement (item 274, 277 GK the Russian Federation), the right of economic conducting by property (item 294 GK the Russian Federation) and the right of an operational administration property (item 296 GK the Russian Federation). Though this list of the rights also is not closed, nevertheless, it is directly statutory and in this sense is settling: to create other real rights, not statutory, the parties of the civil circulation as a result of the contract cannot. In it is an essential difference between real and liability laws.

Therefore, when are led disputes concerning reference of those or others (not provided by the legislation) the rights to real, certainly, at times difficultly accurately to differentiate real and liability laws as the last can have signs of real rights. For example, it is known, that disputes on legal nature of the rights of the tenant were led also in pre-revolutionary Russian civil law. But as the rights of the tenant, their maintenance (including various possibilities of the order the leasehold) are defined not by the law, and the obligations lease agreement, an essence of these rights - objazatelstvenno-legal as for real rights such position is impossible.

For the classical easement presence of two ground areas belonging to different proprietors is characteristic, when one ground area (office, dependent) serves in one way or another to the proprietor of another

The ground area (dominating), and these ground areas next. The easement essentially differs from other real rights on the earth and is the right to the earth for the owner of the easement. For the owner of the ground area on whom the easement is established, it is encumbrance. Being on the right of the public easement, the earth acts not only as a real estate version, but also as a part of territory of public formation. [10]

According to item 23 of the Land code of the Russian Federation the easement is the right of the limited using another's ground area. However a number of authors, for example, B.V.Erofeev [11], define the easement, as the right of the limited using the next ground area that there corresponds also item 1 of item 274 of the Civil code of the Russian Federation. However the made definition, in our opinion, mismatches a legislation context since following real right principles, the using qualified right another's ground area can arise at any person, in case of occurrence in it to necessity.

According to realities of today, in our opinion, would be more correct to qualify concept of the easement as follows: «... Legal owners of one ground areas have the right to demand from legal owners of other sites first of all next, accordings a right to use their earth if without it they cannot use the earth». [12] But also this definition is impossible, in our opinion to consider as ideal.

Instructions on agreements between separate participants of ground relations and possibility platnosti the easement say that Civil code positions concern basically the private easement. According to item 1 of item 23 of the Land code of the Russian Federation private servi§ut it is established according to the civil legislation. However both to private, and to the public

To the easement positions of item 23 of the Land code that the easement can be urgent or constant (item 4) are applicable and, that its realisation should be the least burdensome for the ground area in which relation it is established (item 5). For example, cattle run should be carried out on edge, instead of on all width of the ground area. I.e. another's ground area cannot be used by the owner of the easement exclusively for the purpose of extraction for itself have arrived.

As any real right the easement concerns the absolute powers, and its legal owner is resisted by an unlimited circle of the subjects, obliged not to break this right. However on the basis of such right servituary gets possibility only limited (owing to the contract, a judgement, the law, decisions of public authorities, local government or owing to the acquisitive prescription) rights of use in the interest another's ground area which still remains in possession, using and the order of its proprietor (item 2 of item 274 GK the Russian Federation). Servituary has much smaller volume of powers on use of another's property in comparison with its proprietor, in particular it does not possess the right to dispose of the office (dependent) real estate. The volume of these competences can be the most various and is defined by the internal agreement (contract) between servituariem and servitutodatelem, and also acts of public authorities and самоуправления.14 At transition of the right to the ground area charged with the easement, to other person the easement all the same remains (item 1 of item 275 GK the Russian Federation), i.e. for it (as well as for any real right) the following right is characteristic. Preservation of the right to property at change of its proprietor is characteristic for real rights and means uselessness of the conclusion with the new legal owner of the ground

Site of the agreement on the easement or acceptance of the new normative act or a judgement, on its establishment.

As object of the land easement as real right the ground area, as a certain version of property in general acts. Article 274 of the Civil code of the Russian Federation extends easement action only to the ground areas, article 277 - and on buildings, constructions, other real estate, the limited using which is necessary out of communication with using the ground area.

The state and municipal earths, and also the ground areas which are in a private property of citizens and the organisations can be the legal object of the general land tenure. In the first case the general land tenure arises directly on the basis of the law. For common use by the ground area which is in a private property, the establishment of the public easement is required. The public easement, unlike private, is established by the standard legal act, if it is necessary for maintenance public (state or local) interests. It means, that an establishment of the public easement on the basis of the transaction (agreement) between separate persons, and the establishment of the private easement the standard legal act is equal it is not supposed.

Article 23 of the Land code of the Russian Federation defines the land easement as the right of the limited using another's ground area. The Civil code of the Russian Federation fixes servitutnye relations to the next sites (as it has been noted above - expediently change of the formulation of the legislation). Wood and operating until recently the Water code, old edition of the Town-planning code and as FZ «About the state registration of the rights to real estate and transactions with it» consider the easement as restriction (encumbrance) of other real rights (the property right, lifelong inherited possession, constant

Usings) on real estate. For a designation of such restrictions (encumbrances) in the legislation such concept as «public servi§ut» is used. At the same time the new Water code silently cancels water easements (both private, and public), that, at first sight, is a sign of dynamical development of the Russian legislation. But why there is no reference that similar legal relations should be regulated civil or land legislation of the Russian Federation as it is made in the new Wood code.

Proceeding from the maintenance of these articles, there can be an erroneous representation that the civil legislation regulates only questions of land easements. « In laws on the property, in Bases of the civil legislation of 1991 the general instructions that in cases and in limits, statutory, the proprietor is obliged to suppose the limited using its property other persons (item Z item 1 of the Law of the USSR about the property contained; item 8 of item 2 of the Law of RSFSR about the property in RSFSR, item 4 of item 45 of Bases of the civil legislation). Though in first part GK such establishment directly is not fixed, it, no doubt, can be deduced from general principles and sense of the civil legislation, from positions concerning the property right. From this follows, that easement definition can concern not only the ground area, but also to any other real estate, and also to the person. Differently, easements can be not only ground, but also personal ». [13]

The law of the Russian Federation «About the state registration of the rights to real estate and transactions with it» defines the easement as the right of the limited using another's object of real estate.

The easement as real right on a building, a construction etc. can exist and out of communication with using the ground area. For the proprietor

Real estate in which relation the easement is established, last represents itself as encumbrance. So, J.K.Tolstoj16 notices, that under the law the easement acts simultaneously both as real right and as encumbrance depending on on what the subject extends easement action.

In some civil-law systems, in particular, to France, a part of easements it is created by legislative action. They, as a rule, concern a category of the easements established in favour of the wide public. These are the easements concerning an engineering infrastructure, the right of the public access, open space, to improving zones. In some cases, such as the encumbrances connected with an engineering infrastructure, similar "easements" mismatch legal definition of the easement. In spite of the fact that they are created by legislative action, they are easements in gross in favour of the wide public. In other cases the term "easement" is widely used for that description, that, as a matter of fact, is the concept of the earths of common use, in other words the earth, publicly owned and used on the society blessing. I.e. it is a question of easements in gross.

Thus, there are following types of the easements recognised as Civil law of France and, able to be established by legislative action, or by private contracts: the traditional types of praedial servitudes containing in the Roman Law; the negative easements in gross which are not demanding from the owner the property right to the superior estate; the easements in gross imposed in favour of the public on the earth, used for public passes and proezdov, breakdowns of parks and other similar purposes. The civil law does not contain concept of the affirmative easement in gross. It is represented

Whether definition of easements in gross containing in Civil law wide enough to resolve an establishment of easements in gross in favour of the public, the mechanism used for imposing encumbrance of public access, creation of reserves and protection of historical monuments is disputable.

Let's notice, that the French Civil code (item 640-702) divides all easements on an origin source into easements which occur from an arrangement of sites; easements, statutory; the easements established by action of the person, and in each of these groups very in detail regulates separate kinds of easements.

According to V.I.Reshetnikova, easements can be discriminated also on obligatory (in the absence of other variants of use of the earths) and easements with a view of convenience (if such variants are available).17

Negative and affirmative easements. Easements can be "negative" and "affirmative". Negative easements forbid the owner to make some actions which it in case of absence of the easement could make on lawful basises on the charged earth.

Affirmative easements allow benefitsiantu to pass the easement on territory of the charged property and to make there certain actions. As examples of such actions can serve: the pedestrian pass or journey on a motor vehicle; improvingly-entertaining activity of type of hunting, fishing or bathing; gathering of fruits and berries; service of an engineering infrastructure.

The term «the affirmative easement» also can be used for the description of the easement which obliges the owner of the charged landed property to carry out some positive actions caused

Such easement. Nevertheless, such type of the agreement is considered as the easement only in some legal systems. In Civil law of our country of this type of the easement does not exist.

The easement can be constant or limited to time frameworks (urgent) or type made action. In absence exact, established legally or accurately and easily defined, proceeding from the maintenance of the easement, time restrictions, it is considered to be the easement to constants.

The easement should be carried out by way, the least burdensome for the ground area in which relation it is established. The proprietor of the ground area charged with the easement, has the right to demand a proportional payment from persons in which interests the easement if other is not statutory is established. In the classical Roman Law using the easement was free.

The property right is not a unique title, the possession which gives possibility to establish the easement. The easement can be established also in interests and on request of the person to whom the site is given on the right of lifelong inherited possession or constant

Usings.

As to other party to which address with the requirement about an easement establishment, to the persons establishing in the property the easement, the legislator has carried only proprietors of the ground areas (item 1 of item 274 GK the Russian Federation). Subjects of other real rights are excluded from the list of possible addressees of the requirement on an easement establishment. Meanwhile such restriction, possibly, is quite justified. [14]

Unlike the Roman sources and the Russian pre-revolutionary legislation, the Russian Federation lists item 1 of item 274 GK some the approximate

Versions of easements which can be carried to a category of public and private easements, and notices, that the easement can be established for: pass and journey maintenance through the next ground area, a lining and operation of transmission lines, communication and pipelines, water supply and land improvement, and as for other needs of the proprietor of real estate which cannot be realised without an easement establishment.

At an establishment of water and wood easements speech actually goes about land easements which are established on the earths accordingly water and wood funds. Under the maintenance these easements come nearer to land easements. It speaks that it is impossible to carry out using water object without use of the earths of water fund, the right lesopolzovanija, not using the earth of wood fund. Servituarijami water and wood private easements, unlike land easements, proprietors of the next ground areas and the persons owning the real estate on other real rights, and water users-nesobstvenniki, land users-nesobstvenniki act not. Thus, concepts «the wood easement» and «the water easement» do not coincide with classical concept of "easement". J.Andreev already mentioned by us adheres to the given point of view, for example. [15] it is visible therefore from new Wood and Water codes a category "easement" it is withdrawn.

In the new Water code in general there is no mention of easements, but, it is obvious, that, as well as in the old code, the right of the limited using acts as water object in forms of public and private water easements. But regulation of these relations occurs now according to civil and land legislation. However, in our opinion, an obvious defect of the legislator is absence of direct sending to

To civil and Ground codes. Everyone can use water objects of common use and other water objects if other is not provided by the legislation of the Russian Federation (the public water easement). On the basis of the contract of the law of persons to which water objects are given in long-term or short-term using, can be limited in favour of other interested persons (the private water easement). Private water easements can be established and on the basis of a judgement. General provisions on the easements, provided by the civil legislation, are applied to water easements in that measure in what it does not contradict requirements of the Water code of the Russian Federation.

It is necessary to notice, that all cases of an establishment of water easements on the character are versions of realisation of the right of the general water use.

Features of the water easement consist in the following. When it is a question of the public water easement, one of the parties is the proprietor of water object, and another - the unlimited circle of persons, carrying out the general water use and not being proprietors. As to the private water easement, water users - nesobstvenniki can be subjects of legal relation in its occasion only.

To wood easements of position of civil, ground and other legislation are applied in that measure in what it does not contradict requirements of the Wood code of the Russian Federation. However the given kind of easements, by definition, concerns real servitudes.

The wood code of the Russian Federation fixes the right of citizens freely to sojourn in wood fund and in woods not entering into wood fund if other is not provided by the wood legislation.

The right of use of citizens and legal bodies sites of wood fund and the right of use of the sites, woods not entering into wood fund, can be

Are limited in favour of other interested persons on the basis of contracts, certificates of the state bodies and local governments, and as judgements. Positions of the civil legislation, ground and other legislation are applied to wood easements in that measure in what it does not contradict requirements of the Wood code of the Russian Federation.

Under the current legislation the wood easement is regulated Civil and Ground by codes of the Russian Federation. He assumes the right of the limited using the earths of wood fund and woods growing on them. In legal relation of the public wood easement of one of the parties the proprietor of wood fund or woods not entering into wood fund - the Russian Federation, and with another - an unlimited circle of the citizens who are not proprietors, but carrying out the right of the general lesopolzovanija is. Subjects of the private wood easement as legal relations can be only lesopolzovateli-nesobstvenniki.

Taking into consideration to Civil and Ground codes of the Russian Federation in legal relations regulating wood easements, it is possible to approve sending of the legislator, that wood serviput it is established under the agreement between the person demanding an establishment of the easement, and lesopolzovatelem and comes under to registration in an order established for registration of the rights to real estate. In a case nedostizhenija agreements on an establishment and conditions of the easement dispute is authorised court under the claim of the person demanding an establishment of the easement. Possibility of an establishment of wood easements on the basis of is administrative-legal certificates should not be excluded: decisions of the state bodies and local governments. Decisions of public authorities and local governments on an establishment of wood easements can be appealed according to the current legislation judicially.

New edition of the Town-planning code too does not regulate servitutnye legal relation. It is obvious, that these functions now, by analogy with wood and water legislations, are assigned to civil and ground codes. Most likely, the legislator considers, that the last have sufficient legal base for regulation of the specified legal relations.

In item 23 of Rules of delivery of building licences of objects of the real estate of federal value, and also objects of the real estate in territories of objects of town-planning activity of special regulation of the federal value, the Russian Federations approved by the governmental order from March, 10th, 2000 № 221,20 it is said that the permission (the special permission) to building should contain data about easements in the field of town-planning, including the private Russian Federations established according to the civil legislation.

According to item 13 of the Federal act from July, 19th, 1998 №113-Ф3 «About hydrometeorological service» on the ground areas through which pass or journey to the stationary points of supervision entering into the state observant network is carried out, easements as it should be defined by the legislation of the Russian Federation can be established. The establishment of similar easements is provided in item 7 of the governmental order of the Russian Federation from August, 27th, 1999 № 972 «About the Position statement about creation of conservation zones of stationary points of supervision over a condition of a surrounding environment, its pollution».

The establishment of easements is provided and in Federal act item 23 «About communication». In case of withdrawal of the ground area or approach of the right of the limited using by another's ground area and other real estate (easement) at realisation of design works the redemption price, and also a payment for using a site and other real estate

Are established in an order defined by the legislation of the Russian Federation. According to protection Rules gazoraspredelitelnyh the networks, approved by the governmental order of the Russian Federation from November, 20th, 2000 № 878 [16], for providing of access in the conservation zone gazoraspredelitelnoj the operational organisation if necessary concludes networks when due hereunder with proprietors, owners or users of the adjacent ground areas dogovory time using the ground areas or an easement establishment.

Easements can be established in interests of maintenance of an agricultural production. Possibility of an establishment of easements for needs of breeding animal industries is established in ch. Z item 10 of the Federal act from August, 3rd, 1995 «About breeding animal industries». For carrying out of meliorative works quite often it is required to establish the easement, for example, for tap of waters at ground area drainage. The part 3 items 26 of the Federal act from January, 10th, 1996 «About land reclamation» provides, that the ground areas which border on sites of the reclaimed (reclaimed) earths, can be used for land reclamation maintenance on the right of the limited using another's ground area (easement) according to civil and land legislation of the Russian Federation.

According to Federal act item 13 «About territories of traditional wildlife management of the radical small people of the North, Siberia and the Far East Russian Federation» the rule, according to which on the ground areas which are in limits of borders of territories of traditional wildlife management, for maintenance kochevki deer, a watering place of animals, passes, proezdov, water supply, a lining and operation of transmission lines, communication and pipelines, and also others operates

Needs, easements according to the legislation of the Russian Federation if it does not break a legal regime of territories of traditional wildlife management can be established.

According to Federal act item 12 «About gardening, ogorodnicheskih and country noncommercial associations of citizens» in schemes of zoning of territories for placing gardening, ogorodnicheskih and country noncommercial associations data on the locations, the areas and a special-purpose designation of the ground areas (conducting gardening, truck farming, the country economy, resolved use of the ground areas (the list of restrictions, encumbrances and easements) and other data should contain. The member gardening, ogorodnicheskogo or country noncommercial association is obliged according to item 19 of the given Law to observe the agrotechnical requirements, the established modes, restrictions, encumbrances and easements.

According to FZ from June, 15th, 1996 «About associations of proprietors of habitation» (nowadays become invalid) the condominium is understood as a uniform complex of the real estate including the ground area in established borders and a residential building located on it (other objects of the real estate) in which separate parts (premise) are in the property of house owners, and other parts - in their general common property. This ground area and other real estate in the condominium can be charged by the right of the limited using (easement) other persons.

Thus the interdiction for an establishment of the easement in need of providing of access of other persons to the objects existing before acceptance of the named Federal act is not supposed. New easements can be established only under the agreement servituarija with house owners of the condominium. Disputes arising thus on an establishment of the easement or on its conditions are considered by court. The association of proprietors of habitation can

In cases when it is not connected with infringement of the rights protected by the law and interests of house owners to give the easement to the third parties. According to the governmental order of the Russian Federation from September, 26th, 1997 № 1223 «About the Position statement about definition of the sizes and delineation ze - melnyh sites in condominiums» (in red. For August, 21st, 2000) the common use territory (the basic prodrivings, children's, sports and athletic fields, constructions, files green planting, other objects of common use) in borders of quarter, microdistrict comes under to transfer to the property or rent to house owners or association of proprietors of habitation only under condition of an establishment of corresponding restrictions and easements (item). The decision of this question is within the exclusive competence of general meeting of copartners.

Creation of easements. Easements can be created by various ways depending on legal system. Easements can be created as a result of positive actions of land owners, or can arise under the influence of circumstances, or as a result of actions of the parties, even in a case when there was no intention to establish the easement. In many cases the easement is established judicially, being based on an estimation of the facts and circumstances of business.

In various legal systems positive actions on easement creation can include written or the verbal agreements, clear results of action on division or sale the earths unequivocally meaning necessity of creation of the easement, and also other actions of the parties which in court can be regarded as expressing certain intention to create the easement.

Easements also can be created at will of circumstances. The easement created necessarily can be a typical example of creation of the easement at will of circumstances.

It is necessary to notice, that in some systems the easement can be created by withdrawal by the state of the rights to the earth. That is the state withdraws from the owner not the property right to the ground area, but only the right of use of the ground area in definite purposes, for example, for using road. Certainly, such withdrawal occurs according to usual rules and substantiations for carrying out of such state action. The major moment in that case is payment of indemnification to the owner of the ground area.

The general requisitions to creation of easements (except for the easements created necessarily, under obvious instructions, behind prescription of use of the property or under the decree), as a rule, the same, as the legal requirements shown to creation of any other right of limited participation in using by another's earth, also include intention, the written agreement, the exact description of the right and the property, and in many systems also registration.

In the Russian Federation, according to that easements are subdivided on private and public, legal experience has developed two variants of an establishment of the easement.

The private easement is established according to the civil legislation under the agreement between the person demanding an establishment of the easement, and the proprietor of the next site and comes under to registration in an order established for registration of the rights to real estate. In a case not achievements of the agreement on an establishment or conditions of the easement dispute is authorised court under the claim of the person demanding an establishment of the easement.

The proprietor of the ground area has the right to demand, including judicially, grantings of the easement for service of the ground area.

The public easement is established by the law or other standard legal act of the Russian Federation, the standard legal act

Interests of the state mes ™ eobhodimo for maintenance

UD R a pas, local government or local population ft.

Withdrawn the ground areas and, _ the population, without

It is established in public interez ' ^ivd “"J"cWt by the Example of the certificate establishing the public

Item Z item 23 of the Land code of the Russian Federation "has married

-In I «I pecheru::n:z:: ~ix

Conformity with st? And? ru certificates. So, in

2 Civil codes of the Russian Federation citizens it ™

Freely without what citizens have the right

Any permissions to be on open jatja to

Access the ground areas „ahov akrytyh for the general

Municipal property L ’ G°VDRS "J

Natural objects “IT ~ On ™ ~

sobstve the great-grandfathers supposed by legal acts, and also

The proprietor of Its corresponding ground area,

It is not fenced or hundred proprietor by other joint venture 7 Ze ”“ UCHaSGOK

On a site without it "CH °" Є °b°znach ™ ’ ™ an input

At a drain ez its permissions not DOPUSKaetgja p «in

~ «3 ’" w ™ —

To the proprietor. ***** a damage or anxiety

Transfer of easements. One and - »with

The most important legal

Characteristics predialiyh easements show »Rndichesky

Advantages and encumbrances ™ ’ CHT ° °przdeljaemys them

ooremenenija are transferred together with serve ™

The dominating real estate the Core pp

MAIN PRINCIPLE is TP,

predialnye encumbrances "benefit"

Are automatically transferred to following owners hcZhZmLTTZ

~ ZZ yokes ~~

That servitt ZZZ “М0СJUR ~ ~ - - •

Real estate MO "" FORCE In ° VR=MJA Transfers charged

osti, „ozheg to arise necessity for observance of some

Condition, namely: the agreement on the easement should exist in written form and to be signed the parties, its established; the parties - participants servshuga should continued »to exist after the certificate of transfer of the real estate; the easement should not be illegal or breaking public way; the buyer of the charged earth should receive the notice on the easement, guaranteed by the requirement that the easement should be registered as a property right.

The general rules defining, whether can encumbrances and the advantages caused by easements in gross, to be transferred by the owner of the easement, or to be transferred in the course of alienation together with the charged property, is separated. Traditionally, practically in all legal systems, such easements could not be transferred by the person in which advantage the easement was established, and their observance was not obligatory for the subsequent owners of real estate. Such state of affairs remains in many legal systems.

Cancellation of easements. Depending on legal system, easement action can be ceased:

- In case both parties agree to terminate the easement and cancel the easement according to the accepted legal procedure;

- In connection with the expiry of the term, on which given easement has been established, or in connection with purpose achievement for the sake of which performance the easement was established;

- Under the decree after an establishment of that fact, that necessities for the easement more do not exist, or has ceased to be that for the owner of the easement; or in a case when the easement imposes unfairly big burden on the owner of an office site; or in a case when wrong using the easement takes place, or easement use not to destination;

- In a case when serving and dominating sites are in possession of the same person;

- And also under certain circumstances in a case when the charged property is sold to the person who has not received the timely notice that the property is charged by the easement.

1.2

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A source: Kalinichev Andrey Vasilevich. the LAND EASEMENT In the RUSSIAN LEGISLATION. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2007

More on topic Concept of the right of the limited using another's ground area:

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  2. § 2.2. The limited real rights on the ground area, a building, Construction
  3. Historical aspect of development of the right of the limited using another's ground area.
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  11. § 2.3. Liability laws on the ground area, a building, a construction
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