How to establish a land easement in court in Ukraine?

What is a land easement? The concept of servitude is provided for, inter alia, by the provisions of Chapter 32 of the Civil Code of Ukraine, which states that servitude is the right to use someone else's property that may be established in relation to a land plot, other natural resources or other real estate to meet the needs of other persons that cannot be met in any other way. Chapter 16 of the Land Code of Ukraine also regulates legal relations directly related to land easements. Pursuant to Article 99 of the Land Code of Ukraine, a user or owner of land (servitude) may demand the establishment of the following types of easements on a neighboring plot:

• the possibility of passing, cycling;
• the ability to drive a vehicle along an existing road;
• the ability to lay and use power lines, communication lines, pipelines, and other communication networks;
• the ability to lay a water supply system from someone else's natural reservoir or through someone else's land plot;
• the ability to divert water from one's plot to a neighboring plot or through a neighboring plot;
• the possibility of taking water from a natural reservoir located on a neighboring plot and the right of access to a natural reservoir;
• the ability to water their livestock from a natural reservoir located on a neighboring land plot and the right to drive livestock to a natural reservoir;
• the ability to drive cattle along an existing path;
• the right to install scaffolding and store construction materials for the purpose of repairing buildings and structures;
• the possibility of establishing other easements.

It should be understood that only the owner or user of another neighboring land plot may establish a land easement on a neighboring land plot. Claims of other persons interested in establishing an easement on a land plot are not subject to judicial review. Claims for removal of obstacles to the use of property (land plot) are also not subject to judicial review if the owner of the neighboring land plot does not commit any illegal actions.

For example, if access to your land plot is hampered by the existence of a neighboring land plot, you have the right to demand the establishment of an easement in respect of such neighboring land plot, rather than demanding the removal of obstacles to the use of your property (a negative claim). In addition, it should be remembered that only the owner or user of the neighboring (adjacent) land plot can file a claim for easement. Claims against other persons will also not be satisfied by the court.

It is important to note that filing a lawsuit to establish an easement must be preceded by a written request to the owner of the neighboring land plot with a proposal to enter into an easement agreement. If a lawsuit is filed without such an appeal, the court will also dismiss the claim.

Based on the results of the case, the court may establish a land easement only if the plaintiff is unable to satisfy the needs of his land plot in any other way. If the court finds that the inability to use the land plot normally is due to the actions of the plaintiff, the court will dismiss the claim.

The obligation to substantiate the area and boundaries, as well as the obligation to prepare a cadastral plan of the land plot (a mandatory appendix to the easement agreement) on which the easement is to be established, rests with the interested person - the plaintiff.

The established easement must take into account the landowner's expenses for paying rent, land tax, etc. The court decision must clearly state what type of easement is established on the adjacent land plot.

A land plot easement agreement may be invalidated in court if the servient uses the adjacent land plot without technical documentation for the land and in the absence of established boundaries of the plot in kind (on the ground).

As a conclusion to this article, we note that the mandatory conditions for filing a claim with the relevant court to establish an easement should be:

• confirmation of the right of ownership or use of a land plot that requires an easement on an adjacent land plot;
• confirmation of the fact that the owner or user of the neighboring land plot has been approached with a written proposal to enter into an easement agreement;
• confirmation of the impossibility of satisfying their needs in any other way than by establishing an easement.

Before filing a lawsuit to establish a land easement, we advise you to use all possible means to conclude an easement agreement on a voluntary basis with the consent of the parties.

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See also: establishment of land plot boundaries, exchange file xml for a land plot in Ukraine, legalizing unauthorized construction