<<
>>

the bases of occurrence and the land easement termination.

The contract on an establishment of the private easement. As it was already mentioned, the private easement is established on the basis of the contract. The contract as a way of an establishment of easements is provided in item 3 of item 274 GK the Russian Federation, item 8 FZ «About associations of proprietors of habitation», item of I item 27 of the Law «About the state registration of the rights to real estate and transactions with it».

In item 1 of item 23 of the Land code of the Russian Federation it is said that the private land easement is established according to the civil legislation.

The participant of such agreement on the one hand is the person (servitutodatel), charged with the easement, in which quality (according to item 3 of item 274 GK the Russian Federation) can act only the proprietor of the ground area or other real estate, but not the subject of other real right. The similar norm contained in nowadays become invalid FZ «About associations of proprietors of habitation» (in item 8 item 2): the corresponding contract consists servituariem with proprietors of premises in the condominium. In judiciary practice sometimes there is a question, whether the proprietor of the ground area, and the land owner, the land user, that is the person owning and using the ground area on the right of lifelong inherited possession, or on the right of constant (termless) using, or on the right of gratuitous urgent using can servitutodatelja appear in a role not? It is represented correct, that such actions can be made only with the consent of the proprietor of the ground area. [96]

As other party of the contract acts servituary - the person in which advantage the easement is established. Such subject can be not only the proprietor but also the person to whom the dominating ground area belongs on the right of lifelong inherited possession or the right of constant (termless) using (item 4 of item 274 GK the Russian Federation). If the requirement about easement granting

It is connected with necessity of use of a building, a construction and other real estate which is on another's earth, authorised by the party of the corresponding contract (servituariem) can be not only the proprietor of constructions, but also the owner of the right of economic conducting and the right of an operational administration to this property, that is (according to item 294, 296 GK the Russian Federation) the state or municipal unitary enterprises and establishments.

The proprietor of real estate (ground area) has the right

To demand from the proprietor of the next ground area, and at

Necessities and from the proprietor of other ground area (the next

Site) accordings a right of the limited using by the next site

At impossibility to provide need of this proprietor without an establishment

The corresponding easement (item 1 and, 274 GK the Russian Federation). So, court appeljatsionnoj

instantgii it is given legally up in satisfaction of claims of Open Company

«Fajda XXI» about objazanii the Governments of Moscow in the name of DZR of Moscow

To establish the private easement concerning a part of the ground area,

Belonging to the respondent since by business materials it is established, that realisation

The claimant of legitimate rights of the proprietor of object of the real estate it is possible without П7

Establishments of the private easement.

At not achievement of the agreement on an establishment or conditions of the easement dispute is authorised court under the claim of the person demanding an establishment the easement (item 3 of item 274 GK the Russian Federation, item 8 of item 23 of the Land code, item 8 FZ «About associations of proprietors of habitation», Law item 17 «About the state registration of the rights to real estate and transactions with it»). Differently, the Russian legislator has provided in this case the compulsory legal process of making contract, creation servitutnyh the rights. Potential servituary should convince thus the future servitutodatelja, and in case of dispute occurrence - court, that further normal economic eks -

pluatatsija its ground area it is impossible without encumbrance by the easement

The next ground real estate and, that realisation servi§uta (on conditions

Contracts and to specific performance) will be the least burdensome for 118

The ground area in which relation it is established.

The contract on an easement establishment consists usually in idle time

To the written form (the law does not define the form of this agreement) and comes under to the state registration in the Uniform state register of the rights to real estate and transactions with it (н.1 item 4 and item 1 of item 12 of the Law «About the state registration of the rights to real estate and transactions with it»). Besides, necessity of the state registration extends not only on the contract on an easement establishment, but also on the right arising on its basis. The easement becomes effective from the moment of its registration (item 1 of item 27 of the Law «About the state registration of the rights to real estate and transactions with it»), and the fact of registration makes sure delivery to the authorised subject of the special document - certificates on the state registration of the appurtenant easement in which are specified the purchaser, a kind, date, number of registration of the easement in EGRP (subitem 73, 74 Rules of conducting the Uniform state register).

Servitutnym the contract establishes a kind of the easement, the right and a duty of the parties, volume of powers or limits of realisation of the right of use, the basis of change and the easement termination, a responsibility of the parties on a case of default or inadequate execution of this agreement.

The contract (agreement) on an easement establishment should contain: the name and the easement maintenance;

The ground area area on which the easement extends;

Addresses of a site and requisites of the parties of the agreement; the size and conditions of a payment for using the easement (if they are established); term on which the easement (if it is established) is established.

Harmony of a payment - concept uncertain enough, but in any case it is established by the agreement of the parties. Hence, the transaction parties should define initially a rate of commission, the ground area due to the proprietor charged with the easement. If the rate of commission is not defined, the payment size can be established by rules of item Z item 424 GK the Russian Federation. However the price usually levied under comparable circumstances for using by another's real estate, in the easement the right to define difficult enough. In this connection in the legal literature speak about a payment for an establishment of the frequent easement, as about the essential treaty provision [97].

Agreement subject - granting servituariju the rights of the limited using another's ground area or other real estate. If the sphere of action of the easement extends only on a real estate part the plan of the office ground area on which the spatial limit of action of the given easement is marked should be enclosed to the contract assured by local committee on ground resources and land management. At encumbrance by the easement of all ground area granting of such document is not required (Law item 27 «About the state registration of the rights to real estate and transactions with it»).

The judgement as the basis of occurrence of easements is mentioned in item Z item 274 GK the Russian Federation, the Water code of the Russian Federation, ч.5 item 5 of item 8 FZ «associations of proprietors of habitation», ч.1 item 1 of item 17 of the Law «About the state registration of the rights to real estate and transactions with it». If the proprietor praedirum serviens refuses to conclude the contract on an establishment of the easement or

The parties cannot come to the agreement on its conditions the easement can be established on the basis of the judgement which has entered validity which have been taken out under the claim of the person, demanding establishment of the easement. Unlike the contract the judgement does not require the state registration, being only the unconditional basis for easement registration (item 4 item 1, item 17 item 1, item 1 of item 27 of the Law on the state registration of the rights to real estate).

Both private, and public easements can be urgent or constant (item 4 of item 23 of the Land code of the Russian Federation). Changeable serviput means possibility limited, not constant using another's ground area, for example, in carrying out of building, reconstruction, repair of a building, a structure, a construction, during works on engineering preparation, protection against flooding, flooding, etc. Some town-planning easements (including private) can be constants and be carried out servituariem at any moment: for example, the right of way, journey through another's (next) ground area.

When time limits of existence of the easement are not defined by the parties, the contract all the same is considered the prisoner and comes under to registration. The limited real right arising on its basis will have termless character (item 51 of Rules of conducting EGRP).

Possibility of an establishment of easements on the basis of certificates of the state bodies and local governments is provided only concerning private wood easements and, considered above public land easements (item 9 of the Wood code of the Russian Federation, ch. 2 items 23 of the Land code). The Russian legislation supposes such way of an establishment of easements on the basis of the general provisions of civil law supposing occurrence of the civil rights (including real) by means of the edition of administrative acts and in cases, directly

Statutory (item 1 of item 8 GK the Russian Federation and item 1 of item 17 of the Law «About the state registration of the rights to real estate and transactions with it»).

Occurrence of the easement owing to law express indication it is possible to illustrate on the concrete examples connected with sale of the ground area with preservation for the seller or the pawnbroker of the property right to buildings, constructions or other real estate, being on the alienated ground area (ч.2 item 553, ч.2 item 4 of item 340 GK the Russian Federation and ч.2 item 1 of item 64 FZ «About the mortgage (real estate pledge)»).

It is necessary to notice, that in the Land code of the Russian Federation the right of the limited using by the ground area (items 3 and 4 items 36) which under the name quite korrespondiruetsja with classical definition of the easement, however is not that is considered. Inherently specified right of the limited using reminds certain not specified in GK the Russian Federation other title possession of the ground area under a building, than the easement more.

The right of the limited using arises when in a building which is on the indivisible ground area, premises belong to one persons on the property right, to other persons on the right of economic conducting. In such situation the federal state enterprises and state or municipal establishment - legal owners a premise in this building have a right of the limited using the ground area.

The question is similarly solved with the rights to the earth when in a building located on the indivisible ground area, premises are fixed to the several federal state enterprises and state or municipal authorities. Then the given ground area is given to one of these persons on the basis of the decision of the proprietor of the ground area in constant (termless) using, and other persons possess the right of the limited using the ground area.

Servituary can possess the real estate in the form of the ground area and in the form of other real estate - buildings, structures or constructions. In other words, the easement is established not «in advantage» the subject servitutnyh relations, and «in advantage» the real estate. The right of use not to the, and another's real estate is thus limited. [98]

Encumbrance of the ground area by the easement does not deprive of the proprietor of the ground area of rights of possession, usings and orders this site. Servituary gets only the right of the limited using another's site. Another's site or its part it does not receive the right of possession. Thus servituary have the right to carry out only quite concrete actions reserved in the agreement on use of a site or its part. The easement cannot be an independent subject of purchase and sale, pledge and cannot be transferred to any other persons (item 2 of item 275 GK the Russian Federation). It excludes from the easement such competence, as the order. Hardly it is possible to recognise for the owner of the easement and constant presence at it competences of possession of the ground area charged with the easement. Proceeding from it, the owner of the easement has only a competence of using the ground area, and that in very limited volume. If the easement concerns a part of the ground area or other object of the real estate, to documents in which the maintenance and sphere of action of the easement are specified, the plan on which the sphere of action of the easement is noted is applied assured by the corresponding state body (organisation) which is carrying out the state account and technical inventory of objects of real estate. If the easement concerns all ground area, granting of the cadastral plan of the ground area is not required.

The list of the documents represented for registration of the easement of the ground area:

• the Statement of the proprietor for the state registration of the easement or the person in which advantage the easement is established, at presence at last agreement on the easement.

• In case of an establishment of the public easement, the statement for registration moves public authority or local government, its established.

• the Copy of the document on payment of the state registration of the easement with an original presentation (payment one of the parties of the contract on an easement establishment carries out under the agreement between them).

(Each of the parties) represents the legal body:

- Copies of certificates on registration of legal bodies and a copy of constituent instruments (with all changes and additions), assured notarially or the state bodies, their giving out with a presentation

Originals.

- Extract from the register of legal bodies about absence of changes in

The constituent instruments, assured by the Ministry of Taxes and Tax Collection.

- Legal bodies represent the documents confirming power

The person who have signed the contract:

- Extract from the report of general meeting of founders (shareholders) on election

Executive office of the legal person (the general director, the chairman of board, the chairman of board of directors), assured by the organisation (GOST R 6 items 3.26);

- Copy of the order of the proprietor about appointment of the general director (the head of the organisation) or a copy of the prisoner with it of the employment contract or the contract assured by the organisation (GOST R 6 items 3.26).

- Copy of the document on assignment of an INN with an original presentation.

- In case of signing of the agreement on an establishment of the easement the person who is not the head of the legal person, the copy of the power of attorney assured properly on the conclusion of the given agreement with an obligatory presentation of the original in addition is represented.

The original of notarially certificated power of attorney which have been given out to the representative of the legal (physical) person, on fulfilment of actions on easement registration (is shown), and the copy of the given power of attorney (surrenders).

The physical person shows the document proving the identity.

At registration of the public easement - a copy of the administrative certificate of the city executive authority about an easement establishment on the ground area, assured by its body given out not less than in duplicate, one of which after the state registration should be returned the legal owner.

At registration of the private easement:

- Copy of the decree which have entered validity about the easement establishment, assured by the body which has given out the document (in duplicate);

- The contract (agreement) on an establishment of the easement with all operating additions, changes and agreements, not less than in two copies - the originals, one of which after the state registration should be returned the legal owner.

• the Original of the cadastral plan of the ground area, certificated by Moskomzem (corresponding TORZom) and its copy assured by Moskomzem (corresponding TORZom). The original of the cadastral plan of the ground area after the state registration of the rights should be returned the legal owner.

By the Russian legislation the state registration is the unique proof of existence of the registered right (ch. 2

Item 1 of item 2 of the Law «About the state registration of the rights to real estate and transactions with it»). The similar rule operates and concerning the termination fixed in the register of the real estate of the right. Though it is not necessary to forget, that the property right to the earth, as well as the limited real right charging the ground area, results from the set of facts ordered by the law: 1) the real contract on an establishment of the corresponding right and 2) registration of this right in the real estate register. Hence, record in the uniform state register of the rights (further - EGRP) on real estate and transactions with it by the Russian right is not an independent legal ground of occurrence, change and the termination of the right to real estate as does not generate any civil rights and duties concerning real estate. The record maintenance in the real estate register (as well as record in EGRP) as a matter of fact, duplicates the maintenance pravoustanavlivajushchih documents.

Thus, record in the real estate register is a special juridical fact which only together with a corresponding legal ground (the real contract) and forms the difficult set of facts; it means, that the moment of occurrence, transition, the real right termination cannot be changed the real contract; for the third parties the rights generated by the real transaction, their transition, change and the termination admit existing only from the moment of entering of record into the real estate register.

Under the general rule the maintenance of the register of the real estate admits authentic concerning the one who owing to transaction fulfilment has got the right to the ground area or the right charging the specified right.

Thus it is a question not about obligations, and of real transactions. We will notice, that registration liability laws on the earth (for example, the right of rent of the ground area), restrictions of the right of the order by the ground area, and also disablements of building and in the right of priority do not come under

On ground area purchase.

By transfer of the ground area to rent the proprietor-tenant is obliged according to item 613 GK the Russian Federation to warn the tenant about all rights of the third parties to a leased site, including that the given ground area is charged by the easement. Otherwise the tenant has the right or to demand rent reduction, or to terminate the rent contract and to demand the indemnification.

At loan making contract (item 689 GK the Russian Federation) the loaner, that is the person transferring the thing (ground area) in gratuitous using to other person, gakzhe is obliged to warn loan recipients about encumbrance of the given thing by the easement. At default of this duty the loan recipient has the right to demand contract and indemnification cancellation.

The easement termination.

In those not numerous researches devoted servitutnomu to the right which appear in the legal literature, the right of the limited using is considered by another's ground area, basically in a context of the bases of an establishment of the easement and actually the mechanism of an establishment of the easement. But the problem of the termination of the last is not less significant also. Overwhelming majority of authors concern the given question superficially, not investigating it properly.

The land code of the Russian Federation establishes the various bases for the termination of the private and public easement. The private easement stops on the bases provided by the civil legislation. The public easement can be ceased in case of absence of social needs for which it has been established, by certificate acceptance about easement cancellation. And the given certificate should accept that body on the basis of which decision the given easement has been established.

The bases of the termination of the private easement are provided in item 276

GK THE RUSSIAN FEDERATION.

1. On request of the proprietor of the ground area charged with the easement, the easement can be ceased in view of otpadenija the bases on which it has been established.

2. In cases when the ground area belonging to the citizen or the legal body, as a result of encumbrance by the easement cannot be used according to site appointment, the proprietor has the right to demand on court of the termination of the easement.

Item 48 ZK the Russian Federation as results the bases of the termination of the easement.

1. The private easement can be ceased on the bases,

The provided civil legislation.

2. The public easement can be ceased in case of absence

Social needs for which it has been established by certificate acceptance about easement cancellation.

Thus, at the characteristic of the bases of the termination of the private easement of item 48 of the Land code of the Russian Federation refers to the bases provided by the civil legislation. According to item 276 GK the Russian Federation in cases when the ground area belonging to the citizen or the legal body, as a result of encumbrance by the easement cannot be used according to site appointment, the proprietor has the right to demand on court of the termination of the easement. On request of the proprietor of the ground area charged with the easement, the easement can be ceased in view of otpadenija the bases on which it has been established. NaYOprimer, servituary has ceased an agricultural production and has lost interest to use of a water source on another's next site or has arranged the source of water.

Unfortunately, the Russian legislation does not give a definite answer on a question: whether easements «by merge in one person of the property rights» praedium serviens and praedium dominans are destroyed. «Merge of the property rights in one person» can occur as on the party of the proprietor of the charged site (consolidation), and on the party servituarija (konfuzija). [99] that is Not up to the end clear also - whether abandonment on Russian GK is possible? In GK the Russian Federation is only upomininanie about unilateral refusal, as about one of ways of the termination of the property right (item 1 of item 235 and ч.1 item 236). Whether probably here extensive interpretation of the given norm of the code with reference to easements? The question remains opened. It is obvious, that the positions registered in the legislation on easements should become answers to these questions.

The easement can be ceased and at the initiative of the user the easement. The payment for using the easement thus stops.

The easement stops after the expiry of the term of its action (if the easement had urgent character), in case of  destruction of the ground area charged with the easement or in which advantage the easement is established.

Servitutnyj the contract can be ceased (will terminate) under the agreement of parties or unilaterally if, for example, servituary does not bring the payment caused by the agreement for using another's property, or on other bases provided by the contract. Arisen in connection with the termination servitutnogo contracts dispute is authorised judicially, and the private easement becomes invalid from the moment of becoming res judicata of the judgement which has satisfied the claim about the termination of the easement.

Easement cancellation considers the moment of cancellation of the corresponding contract in the Uniform state register of the rights on

Real estate and transactions with it (l. 1 items 4 of the Law «About

The state registration of the rights to real estate and transactions with it »). Decisions of public authorities and local governments on an establishment of easements can be appealed according to the current legislation the person, whose rights

Are limited.

Within any of the reasons set forth above for the easement termination a number of deviations, especially contains when the court decision about cancellation servshuga is required, and courts of justice should make the decision on the termination or not easement cancellation only after the analysis of intentions of the parties and circumstances of business.

By the general principle easement non-use is not in itself the basis of the termination of its action. But in this case there is a possibility to prove, that the owner has refused use of the easement or, that the reason for existence servshuga more does not exist.

Disputes on legitimacy of application or the termination of the easement and other kinds of encumbrances dare in a statutory order. In view of novelty of institute protection of the right of the easement, as well as its termination, are not investigated enough in the Russian jurisprudence. The land code of the Russian Federation (item 23 item 8) has given possibility to address in court not only in functioning of the public easement, but also at its establishment when conditions of such easement restrain (limit) legitimate rights and interests of all interested citizens and the organisations (servitutodatelja, the third parties, groups of people, the microdistrict population etc.), and not just servituarija.

2.4.

<< | >>
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 the bases of occurrence and the land easement termination.:

  1. § 1. The bases of occurrence of the right to the general land tenure
  2. § 4. The bases of occurrence, change and the termination of civil matters on the Internet
  3. § 1. The rights to a foreign currency: the bases of occurrence, change and the termination
  4. THE LIST OF THE DOCUMENTS NECESSARY FOR THE STATE REGISTRATION OF THE TERMINATION OF THE EASEMENT
  5. Prospects of development of the land easement in system of real rights.
  6. § 2. The bases of occurrence and the termination of the rights of participation of the Russian Federation in economic societies
  7. 2.1. The bases of occurrence and the termination of the civil-law status of participants of state-private partnership
  8. the bases of occurrence, change and the termination of legal relations on compulsory insurance of a life and health of citizens
  9. § 1. Preconditions and the bases of occurrence and the termination of corporate legal relations.
  10. Chapter 1. A land easement General characteristic