The procedure for establishing a land easement

PRO 71.68

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Sobianina Olena

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Ukraine / Odessa region

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Publication date: 21.05.2024

lawyer, 23 years of experience in enforcement.

The procedure for establishing a land easement

Articles 91, 96 of the Land Code of Ukraine establish that owners of land plots and land users are obliged not to violate the rights of owners of adjacent land plots and land users; to observe the rules of good neighborliness and restrictions related to the establishment of land easements and protection zones.
According to the provisions of Art. 98 of the Land Code of Ukraine, the right of land easement is the right of the owner or land user of a land plot to limited paid or free use of someone else's land plot (plots). Land easements can be permanent or temporary. The establishment of a land easement does not lead to the deprivation of the owner of the land plot, in respect of which the land easement is established, of the rights of ownership, use and disposal of it. A land easement is carried out in a way that is the least burdensome for the owner of the land plot in respect of which it is established.
According to Art. 100 of the Land Code of Ukraine, land easement can be established by contract, law, will or court decision. The easement may belong to the owner (owner) of the neighboring land plot, as well as to another specifically defined person (personal easement). A land easement can be established by a contract between the person requesting its establishment and the owner (owner) of the land plot. A land easement is subject to state registration in accordance with the procedure established for state registration of rights to immovable property.
The types of land easement rights are defined by Art. 99 of the Land Code of Ukraine. This list is not exhaustive.
 Article 404 of the Civil Code of Ukraine stipulates that a person has the right to demand a land easement from the owner (owner) of a neighboring land plot, and if necessary, from the owner (owner) of another land plot.
In accordance with Part 3 of Art. 25 of the Law of Ukraine "On Electronic Communications", operators have the right to demand from the owners of land plots or land users to establish easements to the category of land defined by the Land Code of Ukraine, for the deployment and operation of electronic communication networks for public use and/or infrastructure.
Article 401 of the Civil Code of Ukraine defines that easement can be established to satisfy the needs of other persons that cannot be satisfied in any other way. The easement may belong to the owner (owner) of the adjacent land plot, as well as to another specifically defined person (personal easement).
According to part 1, 3 Art. 402 of the Civil Code of Ukraine easement may be established by contract, law, will or court decision. In the event of failure to reach an agreement on the establishment of the easement and its conditions, the dispute shall be resolved by the court at the request of the person requesting the establishment of the easement.
The condition for establishing an easement is the impossibility of meeting the needs of a person in another way. Therefore, a mandatory prerequisite for applying to the court for the establishment of an easement must be proof of actions taken by an interested person regarding the establishment of an easement and failure to reach an agreement on this with the owner of the plot, in respect of which it is planned to establish an easement. If the person before applying to the court did not take actions to establish an easement as agreed by the parties (in particular, did not turn to the other party with a proposal to conclude an agreement on the establishment of an easement), then the court will have no grounds for meeting the relevant requirements in connection with the absence of the plaintiff's right to demand the establishment of an easement by a court decision. Such conclusions are confirmed by judicial practice, in particular, by the decisions of the Supreme Court in case No. 920/1121/17 dated November 20, 2018, No. 487/4106/14-ts dated June 12, 2019, No. 653/2704/16-ts dated August 14. 2019, No. 1512/3008/2012 dated October 9, 2019.
According to Art. 100 of the Land Code of Ukraine, by agreement of the parties, the agreement on the establishment of a land easement can be notarized. The owner of the land plot can also establish the requirement of notarization of the contract on the establishment of a land easement and cancel such a requirement. Establishment (cancellation) of a claim is a unilateral transaction subject to notarization. Such a requirement is an encumbrance of property rights to a land plot and is subject to state registration in the manner specified by law.
In accordance with Part 3 of Art. 101 of the Land Code of Ukraine and Part 3 of Art. 403 of the Civil Code of Ukraine, the owner or user of a land plot, in respect of which a land easement has been established, has the right to demand payment for its establishment from the persons in whose interests it is established, unless otherwise provided by law.
Determining the amount of the fee for establishing an easement is assigned to the competence of subjects of easement relations. At the same time, the parties should proceed from the fact that the fee should take into account those restrictions that will prevent the owner from exercising his right to the property burdened by the easement.
An easement is an independent real right to a land plot, but it cannot be alienated separately from it.

Since the easement does not deprive the owner of the property in respect of which it is established, the right to own, use and dispose of this property, the easement cannot be the subject of sale, pledge and cannot be transferred in any way to a person who is not the owner of the plot.
It is worth noting that Article 55-1 of the Law of Ukraine "On Land Management" stipulates that the establishment of the boundaries of the part of the land plot to which the rights of sublease, easement apply, is carried out in accordance with topographical, geodetic and cartographic materials. Technical land management documentation regarding the establishment of the boundaries of the part of the land plot to which the rights of sublease, easement apply, includes:
a) explanatory note;
b) the technical task for drawing up the documentation, approved by the customer of the documentation;
c) cadastral plan of the land plot indicating the boundaries of the part of the land plot to which the rights of sublease, easement apply;
d) materials of field geodetic works;
e) copies of documents that are the basis for the emergence of sublease rights, easement.
The grounds for termination of easement are defined by Article 102 of the Land Code of Ukraine.