On the establishment of the right of limited use of a land plot (easement)
The courts correctly apply the norms of the law contained in Chapter 7 of the Land Code and regulating the grounds for the occurrence and procedure for granting an easement. An easement arises directly from a regulatory legal act, on the basis of an agreement between an interested person and an owner or land user, on the basis of an act of a local executive body, on the basis of a court decision, and in other cases provided for by law. When considering cases on the establishment of an easement, the question is examined as to which specific needs the plaintiff's claim is aimed at and whether they relate to those needs that can be provided by establishing an easement, given its exceptional nature. Example. By a court decision dated November 22, 2016, the claim of LLP "G" to Ya. for granting the right of passage and passage to non-residential premises by establishing a private easement was satisfied, it was decided to oblige Ya. to provide LLP "G" for the operation of VP No. 29, 2 "B" avenue. Momyshuly of Astana city has the right of limited purpose use (easement) by providing unhindered passage and passage through a land plot with an area of 0.2983 hectares, located at the address: Astana city, B. Momyshuly Avenue.
On the establishment of the right of limited use of a land plot (easement)
The court found that according to the minutes of the meeting of apartment owners, office space owners, the owners decided to register the condominium building No. 2 on B. Momyshuly Avenue. The plaintiff, "G" LLP, is a member of the condominium. Consequently, LLP "G", as the owner of the built-in premises in an apartment building located on a land plot owned by LLP "P" on the basis of a lease agreement and registered to the participants of the condominium, is a land user according to its share in the condominium. It was established that there is a barrier on the defendant's property and the passage to the plaintiff's property is blocked. That is, the defendant's actions will prevent the plaintiff from traveling to his land plot and violate his right to dispose of his property at his own discretion. An agreement on granting the right of limited purpose use of someone else's land (easement) has not been voluntarily concluded. The plaintiff's written request with a proposal to conclude an agreement on the establishment of a private easement by October 31, 2016, was left unanswered by the defendant. All this served as the basis for satisfying the plaintiff's claims for granting the right of passage and passage to non-residential premises by establishing a private easement. Another example. The claims of T. They were satisfied with the establishment of an easement to E LLP on the grounds that when providing the defendant with an additional land plot with an area of 0.3048 hectares for servicing the production base, the decree of the Akimat of Kokshetau dated December 22, 2010 and the purchase and sale agreement stated: to establish an easement to ensure access to other land users to their land plots. Thus, the defendant acquired the right of private ownership of the specified land plot with limited use and encumbrance of compliance with environmental, sanitary, hygienic and other special requirements and standards, which is also reflected in the act on the right of private ownership.
The Court of Appeal of the Akmola Regional Court, agreeing with the conclusions of the court of first instance on the plaintiff's right to servitude, changed the court's decision, setting for the plaintiff a regime for passage and passage through the defendant's property on working days from Monday to Friday from 9 a.m. to 6 p.m. At the same time, in support of the above regime for the passage and passage of the plaintiff through the defendant's land, the court of appeal did not provide the provisions of the law or circumstances confirming the need for such a procedure for using someone else's land. In accordance with articles 21 and 25 of the Land Code, the owner has the right to own, use and dispose of the land belonging to him. The owner of the land plot exercises these rights at his discretion. Since there are no restrictions or encumbrances on the plaintiff's land, the court cannot impose time limits on the plaintiff for the use of his land. Taking into account the above, the decision of the appellate instance was amended in cassation with the cancellation of the establishment of a regime for passage and passage through the defendant's land. In this category of cases, the courts do not experience any particular difficulties in resolving disputes. As practice shows, questions arise when determining the fee for an easement. The amount of the fee must be equal to the amount of losses caused to the owner of the land plot encumbered by the easement due to the restriction of his rights as a result of the establishment of the easement. When determining the amount of payment from the persons in whose interests the easement is established, the court has the right to involve a specialist, take into account the established certain relationships between the parties regarding the use of the land (before the establishment of the easement), the custom of business turnover, resolve disputes based on the criteria of fairness and reasonableness. The amount of the fee set initially may be subsequently changed by agreement of the parties, and if an agreement is not reached, by a court decision. It should be noted that all regional courts agree that disputes about the establishment of an easement have the greatest potential for resolution using conciliation procedures. Along with other common categories of disputes in cases of easement by the courts, it is proposed to introduce pre-trial dispute resolution, which allows resolving the conflict between the parties, restoring friendly relations, and saving their material and moral resources. So, IP Zh. filed a lawsuit against IP Sh. on granting the right of limited use (private easement) of a land plot for passage and passage of motor vehicles. By the decision of the specialized interdistrict economic Court of Aktobe region dated November 10, 2016, the parties approved an agreement on dispute settlement through mediation, under the terms of which IP Sh. provides IP Zh. the right of limited use of a part of the land plot measuring 1.7 m x 35 m x 11.5 m, located in front of the entrance to the garage of IP Zh. IP Zh. pays IP Shakhanov A.G. a fee for the right of limited use in the amount of 5.65 MCI, established by law on the day of payment, monthly until the 5th of each month for the current month. The plaintiff was refunded the paid state duty in the amount of 1,061 tenge.
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