One of the categories of civil law is easement. This property law is considered the oldest, which appeared earlier than property. The doctrine of servitude arose in ancient times. It is interesting to trace how the doctrine of this property law developed and what the approach of modern Russian lawmakers to the concept of easement is.
The origins
Roman lawyers are the founders of many concepts and theories that exist today. It is Ancient Rome that acts as the homeland of the concept that interests us. Curious is the fact that the literal translation of Roman servitusfrom which the Russian “servitude” took its origin is slavery. Thus, initially this property law was understood as the obligation of a thing, its dependence. This civil law institution was needed by the ancient Romans in order to limit the individual proprietary powers of landowners in favor of their neighbors. Thanks to easements, it was possible to use water resources on someone else's site, to transport goods through it. Also, this right made it possible to demand from a neighbor that his structure be beautiful and not spoil the view from the window.
The concept of easement
The meaning that people put into this definition at different intervals of time varies significantly. So, initially the ancient Romans believed that easement is a person’s right to some part of someone else’s thing. Gradually, they began to move away from this primitive definition. Still, the easement is not the right of ownership, but rather the right to use another thing belonging to it. However, it is not unlimited, but is provided in the smallest amount necessary for the normal existence of a neighbor. This is also the opinion of modern Russian legal scholars.
Scope of Authority
The establishment of easement always involves the emergence of a certain group of persons of any rights to someone else's thing. Most often, with it, a passage is provided, as well as passage through a neighbor’s site. In addition, the right of easement allows the use of foreign lands in the repair of engineering, electrical, communal lines, during drainage, and research.
Types of easements
There are various reasons for the classification of this property law. It should be noted that its object is not only a land plot. The easement can be established both on sites of a forest fund, and on water objects. Thus, the land easement is not the only one of its kind, because there are still forest and water ones. The right of limited use of another's property may be permanent or urgent, gratuitous or paid. Also, the easement can be established only for individuals, and can exist in the interests of an unlimited circle of people. Here we are talking about the classification of these property rights into private and public species.
Conditions of occurrence
The existence of such an institution of property law as an easement does not mean that each person can use the land or thing of a neighbor for his own benefit. Establishing an easement is a procedure that requires certain conditions to occur. The first of them should be considered the presence of two land plots, buildings, other real estate objects that are owned by different people.
Moreover, one of these is in a privileged, more favorable position than the other. The second condition is the presence of a common border or neighborhood.The third mandatory circumstance for the establishment of easement concerns the specifics of those duties that are imposed on the owner of the encumbered plot. They do not mean the commission of any active actions. Here, the obligated person must either simply tolerate the use of his belongings by another person, or refrain from certain actions regarding his property.
Grounds for establishing
A land plot can be burdened by an easement in various ways. It all depends on who acquires the limited right to use another person’s real estate. So, if a land easement is also private, then it can arise by agreement between neighbors. However, it is possible to participate in this trial, if a consensus between the two parties was not reached peacefully.
The public easement arises due to the relevant regulatory act. This rule applies not only to the encumbrance of land, but also applies to public restrictions arising in relation to forests and waters. Private forest servitudes arise in connection with the adoption by the state bodies of the relevant document, in connection with the court decision that has entered into force, and also on the basis of agreements. With regard to waters, this limited property right is established, as a rule, on a contractual basis or in connection with a court decision.
Guarantees to the owner
The legislation of the Russian Federation also protects the rights of the owner of the encumbered plot. So, in accordance with the Civil Code, the establishment of easement cannot be the basis for the termination of the owner of the thing ownership rights disposition, as well as use of it. In addition, the owner of the encumbered plot has the right in some cases to demand a proportional fee for using his land from those people in whose interests a servitude has been established. Thus, the rights of owners when they are restricted are still protected.
