Establishment of land easement

Distribution or allocation of land

Determination of land area

Establishing compliance with the boundaries of the land

According to Article 401 of the Civil Code of Ukraine, a land easement is a right to use someone else's property, which may be established in respect of land or other natural resources to meet the needs of others who cannot be satisfied in any other way. A land easement may be established by an agreement between the person requesting its establishment and the owner (possessor) of the land plot. Land servitude is subject to state registration in the manner prescribed for state registration of rights to immovable property. In case of failure to reach an agreement on the establishment of an easement and its terms, the dispute shall be resolved by the court at the request of the person requesting the establishment of an easement.

The Land Code of Ukraine divides land easements by their term of validity (permanent and temporary). The term for which the easement is established must be stipulated. An easement established without determining the term of its validity, in accordance with Part 2 of Art. 98 of the Land Code of Ukraine is permanent, ie indefinite. An easement may also be established for the period of validity of certain circumstances that were the basis for its establishment. In the event of termination of such circumstances, the easement is also terminated.

Types of land easements that can be established, defined in Art. 99 of the Land Code of Ukraine:

♦ the right to pass and ride a bicycle;

♦ the right to travel on a vehicle on the existing road;

♦ the right to lay and operate power lines, communications, pipelines and other linear communications;

♦ the right to lay water supply from another's natural reservoir or through another's land plot on one's land plot;

♦ the right to drain water from their land to a neighboring or through a neighboring land;

♦ the right to take water from a natural reservoir located on a neighboring land plot, and the right of access to a natural reservoir;

♦ the right to water their cattle from a natural reservoir located on a neighboring land plot, and the right to drive cattle to a natural reservoir;

♦ the right to drive cattle along the existing path;

♦ the right to install scaffolding and storage of construction materials for the repair of buildings and structures;

♦ other land easements.

Fee for using the easement

Fee for using the easement. In accordance with Part C of Art. 101 of the Land Code of Ukraine and Part 3 of Art. 403 of the Civil code of Ukraine the owner or the user of the ground area concerning which the land easement is established, has the right to demand from persons in whose interests it is established, payment for its establishment if other is not provided by the law.

Determining the amount of the fee for the establishment of an easement is attributed to the competence of the subjects of easement relations. In this case, the parties must assume that the fee must take into account those restrictions that will prevent the owner to exercise his right to the encumbered property.

An easement is an independent real right to a land plot. However, it is not subject to alienation separately from it. Therefore, the easement may not be the subject of sale, pledge and can not be transferred in any way to a person who is not the owner of the site, to ensure the use of which it is established. In this sense, the easement has an accessory character in relation to the right in the interests of which it is established.

Establishment of land easement in court

Only the owner or user of another neighboring land plot may establish a land easement on a neighboring land plot. Claims of other persons interested in establishing an easement on a land plot shall not be satisfied in court. Claims to eliminate obstacles to the use of property (land) in the case when the owner of the neighboring plot does not commit illegal acts are also not subject to satisfaction in court.

If access to the land is difficult due to the existence of a neighboring land, the person has the right to demand the establishment of an easement on such a neighboring land, and not to remove obstacles to the use of your property (negative claim) in accordance with Article 391 It is possible to apply for the establishment of an easement only to the owner or user of the neighboring (adjacent) land plot. Claims against other persons will also not be satisfied by the court.

An appeal to the court with a claim for the establishment of an easement must be preceded by a written appeal to the owner of the neighboring land plot with a proposal to enter into an easement agreement. If you file a lawsuit without such a request, the court will also deny the claim.

Based on the results of the case, the court may establish a land easement only if the plaintiff is unable to meet the needs of his land in another way. If the court finds that the inability to properly use the site is due to the actions of the plaintiff, the court will deny the claim.

According to Article 34 of the Land Code of Ukraine, the justification of the area and boundaries, as well as the obligation to prepare a cadastral plan of land (mandatory annex to the easement agreement), which must establish an easement, rests with the interested person - the plaintiff. The established easement must take into account the costs of the owner of the land to pay rent, land tax in accordance with subparagraph 14.1.147 of paragraph 14.1 of Article 14 of the Tax Code of Ukraine. The court decision must clearly indicate what kind of easement is established on the adjacent land.

The land easement agreement may be declared invalid in court if the easement uses the adjacent land without technical documentation for the land and in the absence of established boundaries of the land in kind (on the ground). must be:

• confirmation of the right of ownership or use of the land plot, which requires an easement on the adjacent land plot;
• confirmation of the fact of appeal to the owner or user of the neighboring land plot with a written proposal to enter into an easement agreement;
• confirmation of the inability to meet their needs in any way other than the establishment of an easement.

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