Establishment of termination of an easement from land legal relations
In accordance with paragraph 1 of Article 195 of the Civil Code of the Republic of Kazakhstan, real rights, along with the right of ownership, include the right to limited targeted use of someone else's real estate (easement).
The norms of paragraph 38) of Article 12 of the Land Code define the concept of an easement, so an easement is the right of limited purpose use of someone else's land, including for passage, passage, laying and operation of necessary communications, hunting and fishing and other needs.
The grounds for the easement
The right of limited purpose use of someone else's land (easement) may arise:
1) directly from the regulatory legal act;
2) on the basis of an agreement between the interested party and the owner or land user;
3) on the basis of an act of the local executive body;
4) on the basis of a court decision;
5) in other cases stipulated by the legislation of the Republic of Kazakhstan.
The right of limited use of a neighboring or other land plot.
The legislator defines two types of easement:
-public
-private
Private easement
A private owner or land user has the right to demand from the subject of the right of private ownership or land use to a neighboring land plot, and, if necessary, from the subjects of the right of private ownership or land use to another plot, the right to limited use of these plots (private easement).
A private easement may be established to ensure:
1) passage and passage through a neighboring or other land plot, if
-there is no other way for a private owner or land user to get to their site.;
-another way for a private owner or land user to get to his site is extremely difficult;
- another way for a private owner or land user to get to their site requires disproportionate costs.
2) laying and operating the necessary power transmission lines, communications, water supply, drainage, heat supply, gas supply, land reclamation and other needs of a private owner or land user, which cannot be provided without establishing an easement for a neighboring or other site.
Grounds for the emergence of a private easement:
1) the contract.
2) a court decision in case of failure to reach an agreement.
-A private easement for a neighboring or other plot is established by agreement with the subjects of private ownership or land use rights to these plots.
-The subject of the right of limited use of a land plot must compensate the private owner or land user for all losses related to the easement.
-The owner or land user of a land plot burdened with a private easement has the right to demand a commensurate fee from the persons in whose interests the easement is established, unless otherwise provided by legislative acts of the Republic of Kazakhstan.
-When an easement is established for land plots owned by the state and not provided for land use, the easement fee goes to the budget.
Public easement
Public easements may be established in cases where it is necessary to ensure the interests of the State and the local population, without the seizure of land.
Grounds for public easement: based on decisions of local executive bodies of regions, cities of republican significance, the capital, districts, cities of regional significance, akims of cities of regional significance, towns, villages, rural districts within their competence to provide land.
Public easements may be established for:
1) passage or passage through a land plot to public facilities, cemeteries, burials and other places of worship;
2) the use of a land plot for the purpose of laying and operating utility, engineering, electrical and other lines and networks, as well as transport infrastructure facilities that cannot be provided without the establishment of easements or require disproportionate costs.
2-1) use of the land plot for the purpose of locating and operating the linear part of the main pipelines;
3) placement of boundary and geodetic signs and entrances to them on the land plot;
4) water intake and watering hole;
5) driving cattle through the land plot;
6) the use of a land plot for hunting, fishing in a closed reservoir located on the land plot, collecting wild plants, in due time and in accordance with the established procedure;
7) temporary use of the land plot for the purposes of conducting survey, research and other work;
8) free access to the coastal strip;
9) the use of a land plot for cultural events by decision of government agencies;
10) in other cases related to public and state interests.
* The owner or land user of a land plot burdened with a public easement has the right to demand from the state body that established the public easement a commensurate fee if the establishment of an easement leads to significant difficulties in the use of the land plot.
* In cases where the establishment of a public easement leads to the impossibility of using the land plot, the owner of the land plot or the land user has the right to demand the withdrawal, including by buying back the land plot from him with compensation by the state body that established the public easement, for losses in full at the time of termination of ownership or land use rights or provision of an equivalent land plot or if it is impossible
- another land plot with the offset of its value or rights to it in the price and compensation for losses incurred.
In cases provided for by legislative acts of the Republic of Kazakhstan or by agreement of the parties, other easements may be established, except those specified in this Code.
The easement remains in case of transfer of ownership of a land plot or the right of land use of a land plot burdened with an easement to another person.
An easement cannot be an independent subject of transactions, including purchase and sale and collateral. An easement may pass to other persons only together with the right for which the easement is established.
Termination of an easement
The easement is terminated
1) as a result of the copyright holder's refusal;
2)long-term non-use (3 years);
3) the expiration date for which it was set;
4) on the basis of an agreement between the parties;
5) on the basis of a court decision;
6) on other grounds stipulated by the legislative acts of the Republic of Kazakhstan.
Features of termination of a public easement
A public easement may be terminated, in the absence of the public needs for which it was established, by making a decision of the local executive body to cancel the easement.
Unilateral procedure for termination of an easement
The easement is unilaterally terminated on the grounds provided for by legislative acts of the Republic of Kazakhstan or by agreement of the parties.
Termination of the easement in court
An easement may be terminated in court at the request of a private owner or land user in connection with its improper use by the copyright holder, as well as due to the lack of grounds on which it was established.
Features of termination of an easement depending on the period of validity
1) if an easement is established for a certain period, its validity is terminated upon expiration of the established period, unless otherwise established by agreement of the parties.
2) if, on the basis of a contract, an easement is established before the time of demand or for an indefinite period, the easement is terminated upon the expiration of a one-month period from the date of the claim of the owner of immovable property encumbered by the easement to terminate the easement.
Registration of an easement
State registration in the legal cadastre is subject to:
the emergence, modification and termination of easements granting the right holder the right to limited targeted use of someone else's land, unless otherwise established by this article and the legislative act of the Republic of Kazakhstan on state registration of rights to immovable property.
When registering an easement, the documents on the basis of which the easement arose are accompanied by a land plot plan showing the boundaries of the easement's scope, certified by the person providing such an easement. If the easement applies to the entire land plot, provision of a land plot plan is not required.
Easements arising on the basis of regulatory legal acts, as well as other easements that are not subject to registration in accordance with the legislative act of the Republic of Kazakhstan on state registration of rights to immovable property, are not subject to state registration.
Private easement
By its legal nature, an easement is an auxiliary way for a person to exercise ownership rights in respect of a land plot belonging to him if there are obstacles to its full use, and therefore, the establishment of an easement is permissible only if it is impossible to use the land plot for the purposes specified in paragraph 2 of Article 69 of the Land Code.
The most important criteria for establishing an easement are the requirements of legality, reasonableness, fairness and expediency of its establishment.
When establishing an easement, the court is obliged to establish the absence of any other reasonable, fair and expedient opportunity to ensure the normal operation of real estate.
The proper plaintiff in this case is a person who requires the establishment of an easement, for whom there is no other way to exercise his rights without establishing it.
In accordance with paragraph 3 of Article 69 of the Land Code, a private easement for a neighboring or other plot is established under an agreement with subjects of private ownership or land use rights to these plots.
If such an agreement is not reached, the person applies to the court with a claim for the establishment of the right of limited use of the land, as a rule, the cause of the dispute is the refusal of the defendants to establish an easement on the land belonging to him, or the failure to reach an agreement regarding the terms of the easement.
According to paragraph 3 of Article 67 of the Land Code, if a regulatory legal act provides for the establishment of an easement on the basis of an agreement between an interested person and an owner or land user (for example, the norm of paragraph 3 of Article 69 of the Land Code), the refusal of the latter to conclude such an agreement or the terms of the agreement proposed by the owner or land user may be challenged in court by the interested person by suing to the owner or land user.
In accordance with paragraph 2 of Article 69 of the Land Code, the right of limited use of a neighboring or other land plot (private easement) may be established to ensure:
1) passage and passage through a neighboring or other land plot, if another path of a private owner or land user to his site is impossible, extremely difficult or requires disproportionate expenses;
2) laying and operating the necessary power transmission lines, communications, water supply, drainage, heat supply, gas supply, land reclamation and other needs of a private owner or land user, which cannot be provided without establishing an easement for a neighboring or other site.
The analysis of these norms allows us to draw the following conclusions
-A private easement can be established both on a neighboring and non-neighboring land plot.
- The Land Code provides for two groups of circumstances related to the possibility of establishing a private easement, which determine the purpose of establishing a private easement.:
The first group
-passage and passage through a neighboring or other site
Provided that there is another way for the owner or land user to get to their site.
1) impossible,
2) extremely difficult
2) or requires disproportionate expenses
The second group
*installation and operation of necessary power transmission lines,
*installation and operation of necessary communication lines,
*installation and operation of necessary water supply lines,
*installation and operation of necessary drainage lines,
*installation and operation of necessary heat supply lines,
*installation and operation of necessary gas supply lines,
*laying and operation of necessary land reclamation lines
*other needs of a private owner or land user,
Provided that these actions cannot be provided without the establishment of an easement .
Based on the goals defined by the legislator for establishing an easement, it follows that an easement presupposes certain long-term relationships, are not of a one-time nature, involves the use of a land plot both by the owner or land user himself or by the person in whose interests the easement is established, since provision for passage and passage involves the placement of a road, the laying and operation of power lines, etc. other lines , involves the placement of these power lines and other lines on the land. Accordingly, in judicial practice, the question arises: is it necessary to establish an easement for the performance of construction, installation, and repair work on real estate when it is impossible to carry out these works without using a neighboring or other land plot.
Regulatory framework
When considering cases in this category, courts should be guided by the following regulatory legal acts:
1) The Constitution of the Republic of Kazakhstan;
2) The Civil Code of the Republic of Kazakhstan
3) The Land Code of the Republic of Kazakhstan dated June 20, 2003, Chapter 7.
4) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of land legislation by courts" dated July 16, 2007 No. 6.
When applying regulatory legal acts, it should be borne in mind:
1) Regulatory legal acts that have become invalid are applied when disputing a disputed legal relationship during the period of validity of the expired act.
2) In accordance with Article 169 of the Land Code of the Republic of Kazakhstan dated June 20, 2003, the Code applies to land legal relations that arose after its entry into force.
The normative legal acts regulating relations adopted prior to the entry into force of the Code are applied to the extent that they do not contradict this Code.
Attention!
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© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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