Private and Public Easements in Russian and Foreign Law

Abstract

The development of property relations involves improving the legal regulation of real estate 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 the owner and the servitor, on the one hand, and the accumulation, generalization and development of scientific ideas about the specifics and place of servitudes in a system of limited property rights, on the other hand, have traditionally been the most controversial issues of corporate law in terms of the development of legislation, law enforcement and doctrine. Legal regulation of easements as a kind of limited property rights reveals the specifics of the formation and content of a specific national system of law. The perception of easements as both private and public law is observed not only in Russian, but also in foreign law, while the discussion on the validity of such a division remains relevant both in Russian and in foreign law. In Russia, the disappearance of private ownership of land in the context of the ideological struggle of Soviet law with the system and the principles of private law entailed not only oblivion of the sub-sector of property law with its basic institutions, but also the refusal of the legal regulation of the division of things into movable and immovable. Accordingly, for many years, the research into the nature and location of servitudes in the legal system has lost relevance. The need for legal regulation of easements has already emerged in the post-Soviet space in the conditions of the development of market relations, which was originally implemented at the level of departmental regulation (Provisional Guide to Land Use Inventory approved by the Committee on Roshydromet on May 17, 1993). For the first time the concept of “public easement” in modern Russian legislation appeared in the Presidential Decree “On the main provisions of the state program of privatization of state and municipal enterprises in the Russian Federation after July 1, 1994”. And only after the entry into force of the civil and land codes (Article 23 of the Land Code, Article 274 of the Civil Code), there were grounds to talk about the legal delineation of private and public easements. The current state of the development of Russian legislation, the incompleteness of the reform of Russian civil legislation with regard to the modernization of provisions on proprietary rights, the accumulated approaches to law enforcement practice in resolving disputes on the application of easement legislation, raise questions about the improvement of legislative provisions on easements and set new tasks and objectives for future research.