A landowner may find that it is impossible or extremely difficult to use their property without access across a neighbouring plot — for example, when the only access road to the plot crosses someone else's land.

In such cases, the right holder does not acquire rights to the neighbouring plot but may demand an easement (servitude) — a right of limited use of another person's land. An easement is an exceptional mechanism: it is permitted if the person's need cannot be met in any other way and the encumbrance does not deprive the owner of the plot of the ability to use it for its intended purpose.

In practice, disputes usually arise not over the need for access itself but over its specific terms: where the path or road runs, the area of the encumbered part of the plot, the duration of the easement and the amount of the fee. Below we look at when an easement can be established and what needs to be proven in court.

When a land easement is needed

A land easement is a right of limited use of another person's land plot. It may be established, in particular, to provide passage on foot or by vehicle across a neighbouring plot, to build, reconstruct or operate linear facilities, and for other needs of the property owner that cannot be met without such an encumbrance (Article 274 of the Civil Code).

An easement should not be used as a way to obtain a convenient but unnecessary route or to effectively occupy part of someone else's plot. The need for it must be objective: for example, if the plot has no other access to a public road or an alternative route for utility networks is technically impossible or disproportionately burdensome.

The owner of the encumbered plot retains the right to own, use and dispose of the property. An easement may restrict the use of the plot only to the extent actually necessary to meet the other person's needs.

How to establish an easement through the courts

If the owner or other right holder of the neighbouring plot refuses to grant a right of passage, vehicle access or the placement of utilities, the interested person may go to court to have an easement established. However, to succeed it is not enough to show that the proposed use of the neighbouring plot is the most convenient for the claimant.

An easement is an exceptional way of ensuring the use of property. It can be established only if there is no other way to meet the need of the person in whose interest the claim is brought. In addition, the encumbrance must not deprive the owner of the neighbouring plot of the ability to use it in accordance with its permitted use (Article 274(3) of the Civil Code; paragraphs 7 and 8 of the Review of Case Law on Establishing Easements over Land Plots approved by the Presidium of the Supreme Court on 26.04.2017). For the claim to succeed, the following must be proven:

• The claimant has a right to the land plot or other property for whose use the easement is needed;
• There is a specific need for passage, vehicle access, or the placement or operation of utilities;
• There is no reasonable alternative that would meet this need without an easement;
• The proposed easement is the least burdensome option for the owner of the neighbouring plot;
• The encumbered plot can still be used in accordance with its permitted use;
• The terms on the duration of the easement and the amount of a proportionate fee, if one is payable.

The court's decision must allow the easement to be registered and exercised without further uncertainty. Documents defining the location and boundaries of the part of the plot to be used for passage, vehicle access or placing a facility are therefore particularly important in a dispute.

Terms of and payment for an easement

An easement may be for a fixed term or indefinite. The term is usually set by agreement between the parties or, in a dispute, based on the purpose for which limited use of the plot is established.

The owner of a plot encumbered by a private easement may demand a proportionate fee from the person in whose interest the easement is established. The parties may agree the amount and payment procedure themselves; if there is no agreement, these terms may be determined by the court.

In determining the fee, the court assesses the nature and intensity of use of the plot, the area of the encumbered land, the duration of the restriction, possible inconvenience to the owner and other circumstances of the case. If the parties disagree on the amount, the court may order an expert examination.

A private easement should be distinguished from a public easement. A public easement is established by an authorised body in the public interest — for example, for passage, vehicle access, or the placement or operation of infrastructure facilities. Persons whose rights and legitimate interests are affected by a public easement may protect them in court.

Recommendations from the C Cases team

Before going to court to establish an easement, assess not only whether there is a need for it but also possible alternative means of access or placing utilities. If an alternative exists, the court may find that there are no grounds for encumbering the neighbouring plot.

It is also important to prepare a technically defined easement in advance: establish the route of passage or vehicle access, the boundaries of the part of the plot to be used, the estimated area, the regime of use and the term. This will make it possible to formulate enforceable claims and reduce the risk of the dispute dragging on because the terms of the easement are uncertain.

The owner of the encumbered plot, in turn, should check whether the easement is really necessary, whether the proposed option creates excessive restrictions and whether the proposed fee matches the consequences of the encumbrance.

If you plan to establish an easement to use your plot or, conversely, believe that a proposed encumbrance violates your rights as an owner, the C Cases team is ready to assess the circumstances, prepare a negotiation or litigation strategy, build the evidence and protect your interests in the dispute.

Sources

• Civil Code of the Russian Federation (Part One) No. 51-FZ of 30.11.1994;
• Land Code of the Russian Federation No. 136-FZ of 25.10.2001;
• Federal Law No. 218-FZ of 13.07.2015 "On State Registration of Real Estate";
• Review of Case Law on Establishing Easements over Land Plots, approved by the Presidium of the Supreme Court of the Russian Federation on 26.04.2017.