Private and Public Easements in Russian and Foreign Law

Abstract

The development of property relations involves improving the legal regulation of realestate turnover and the forms land-use. Historically, the legal regulation of easements,the resolution of disputes and the search for a balance between the interests of theowner and the servitor, on the one hand, and the accumulation, generalization anddevelopment of scientific ideas about the specifics and place of servitudes in a system oflimited property rights, on the other hand, have traditionally been the most controversialissues of corporate law in terms of the development of legislation, law enforcement anddoctrine. Legal regulation of easements as a kind of limited property rights reveals thespecifics of the formation and content of a specific national system of law. The perceptionof easements as both private and public law is observed not only in Russian, but alsoin foreign law, while the discussion on the validity of such a division remains relevantboth in Russian and in foreign law. In Russia, the disappearance of private ownershipof land in the context of the ideological struggle of Soviet law with the system and theprinciples of private law entailed not only oblivion of the sub-sector of property law withits basic institutions, but also the refusal of the legal regulation of the division of thingsinto movable and immovable. Accordingly, for many years, the research into the natureand location of servitudes in the legal system has lost relevance. The need for legalregulation of easements has already emerged in the post-Soviet space in the conditionsof the development of market relations, which was originally implemented at the levelof departmental regulation (Provisional Guide to Land Use Inventory approved by theCommittee on Roshydromet on May 17, 1993). For the first time the concept of “publiceasement” in modern Russian legislation appeared in the Presidential Decree “On themain provisions of the state program of privatization of state and municipal enterprisesin the Russian Federation after July 1, 1994”. And only after the entry into force of thecivil and land codes (Article 23 of the Land Code, Article 274 of the Civil Code), therewere grounds to talk about the legal delineation of private and public easements. Thecurrent state of the development of Russian legislation, the incompleteness of the reformof Russian civil legislation with regard to the modernization of provisions on proprietaryrights, the accumulated approaches to law enforcement practice in resolving disputeson the application of easement legislation, raise questions about the improvement oflegislative provisions on easements and set new tasks and objectives for future research.