On the establishment (termination) of an easement

The specifics of the jurisdiction and jurisdiction of the dispute. In accordance with paragraph 1 of Article 117 of the Civil Code, land plots are classified as immovable property. In this regard, claims for rights to land plots must be submitted to the court in accordance with the first part of Article 31 of the CPC at their location (paragraph 3 of the regulatory decree of the Supreme Court "On certain issues of the application of land legislation by courts").

Definition of the legal relations of the parties and the law to be followed. Current legislation distinguishes two types of land easements: public and private.

A private easement may be established to ensure:

1) passage and passage through a neighboring or other land plot, if:

- 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 his site 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.

Grounds for the emergence of a private easement:

- agreement of the parties (contract);

- a court decision in case of failure to reach an agreement.

The essential terms of the easement agreement are the terms of the subject and price, that is, the land easement is reimbursable.

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.

Public easements may be established for:

passage or passage through the land to public facilities, cemeteries, burials and other places of worship;

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 placement and operation of the linear part of the main pipelines;

placement of boundary and geodetic signs and entrances to them on the land plot;

water intake and watering hole;

running cattle through a land plot;

use of the 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;

temporary use of the land plot for the purposes of survey, research and other works;

free access to the coastal strip;

the use of a land plot for cultural events by decision of government agencies;

in other cases related to public and state interests.

A public easement is established by adopting a regulatory legal act of a state authority or a local government body.

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, or a pledge.

The easement may pass to other persons together with the right for which the easement is established.

The basis for filing a claim is the refusal of the owner to conclude an agreement on the establishment of an easement or the failure to reach an agreement on the terms of the easement.

The subject of the claim is the granting of the right of limited use of a neighboring plot (easement).

Persons involved in the case.

The plaintiff:

- the owner of the land plot or the person who owns the land plot on another property right;

- land users of adjacent and other land plots;

- persons who are not such – holders of any other property rights. For example, the subjects of the right to drive livestock through the site, the right to use land for survey work are not required to have titles of ownership of the site or land use rights.

The defendant: the owner of the land plot.

Features of the subject composition when establishing an easement. Since a public land easement is established for an unlimited number of persons, any interested person can be an applicant in a dispute over its establishment.

Features of the subject composition at the termination of the easement. The plaintiff in this claim is the owner of the easement-encumbered land plot. The defendant is the person in whose favor the easement is established.

Facts to be established and proved. Evidence and proof.

The burden of proving the need to establish an easement lies with the plaintiff.

The subject of the evidence includes the following facts:

appeal to the owner of the land plot and the owner's refusal to encumber the land plot with an easement or failure to reach an agreement on the terms of the easement;

the impossibility of normal economic use of a land plot without encumbrance by an easement of someone else's land plot;

the fact that the existence of an easement will be the least burdensome for the land plot;

circumstances indicating the legality of the refusal to establish an easement:

- significant difficulties in the use of the land plot or the impossibility of its use due to the establishment of an easement;

- the inability to establish an easement due to restrictions established by law.

Termination of the easement. The easement is terminated:

- as a result of the copyright holder's refusal;

- long-term non-use (3 years);

- the expiration date for which it was set;

- based on an agreement between the parties;

- based on a court decision;

- on other grounds provided for by legislative acts.

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.

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. 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.

If an easement is established on the basis of a contract until 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. The following are subject to state registration in the legal cadastre: the emergence, modification and termination of easements granting the rightholder the right to limited targeted use of someone else's land, unless otherwise established by the legislative act 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, the submission 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.

Note. By its legal nature, an easement is an auxiliary way for a person to exercise ownership of a land plot owned by 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 considering cases on the establishment of an easement, the courts should examine the question of what 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.

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.

An easement presupposes certain long-term relationships, and is not of a one-time, one-time nature, since it involves the use of a land plot both by the owner or land user himself, and by the person in whose interests the easement is established.

The most important criteria for establishing an easement are the requirements of legality, reasonableness, fairness and expediency of its establishment. When considering cases on the establishment of an easement, the courts should examine the question of what 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. 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.

An easement presupposes certain long-term relationships, it is not a one-time one-time nature, since it involves the use of a land plot, both by the owner or land user himself, and by the person in whose interests the easement is established.

The list of the main documents attached to the statement of claim

Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases the claims, which may be:

- contracts of privatization, purchase and sale, donation and (or) other title documents for ownership or land use of a land plot, housing construction, as well as an act of acceptance of housing construction into operation, a technical passport, plans for housing and land, information from the legal cadastre on the state registration of rights to real estate and transactions with it, and other identification documents;

- evidence of an appeal to the owner of the land plot and his refusal to encumber the plot with an easement or failure to reach an agreement on the terms of the easement;

- a copy of the agreement (contract) on the establishment of an easement (a written proposal (statement) on the conclusion of an agreement on the establishment of a private easement.

Laws to be applied in the consideration and resolution of cases

The Constitution.

GK.

The Land Code (Chapter 7).

The Forest Code.

Laws:

- "On the state registration of rights to immovable property";

- "On subsoil and subsoil use";

- "About pastures";

- "On architectural, urban planning and construction activities in the Republic of Kazakhstan"

Normative Resolution of the Supreme Court of July 16, 2006 No. 6 "On certain issues of the application of Land legislation by courts"

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