Law/ 9.Civil Law
Candidate of Juridical
Sciences, Professor Veselskaya N.R.,
Master student Àzheneyeva À.Ì.
Karagandy Economic University of
Kazpotrebsoyuz
Actual problems of servitude rights
in the civil legislation of the Republic of Kazakhstan
In accordance
with paragraph 6 of article 188 of the Civil Code of the Republic of Kazakhstan
the owner in cases and under the conditions within the limits stipulated by
legislative acts, shall allow limited use of his property by others [1]. That
rules pointed by standards are the basis of provision to establish a large
group of property rights - the rights to property of another.
The limited right of use
over the property of another in the legal literature often referred to as
servitude, servitude rights, the right of servitude type [2]. The Civil Code of
the Republic of Kazakhstan does not define such right as servitude and servitude
does not operate this term at all, except mention of servitude in paragraph 2
of Article 118 (referring to the old edition) [3]. The concept of
"servitude" appeared in the civil legislation of the Republic of
Kazakhstan with the adoption of the Decree on Land (repealed), where this
concept is given specific content of one of the varieties of right of limited
use of another's property - the right to someone else's plot. A similar
approach on this issue is characteristic of the Russian civil law, which is
also the legislative concept of " servitude " corresponds to a narrow
civil institution - right of limited use someone else's land, although in legal
literature recognizes that servitudes can be installed not only in connection
with a land section, and except land servitudes exist and other proprietary
rights of servitude type [4].
At the same time it must be
recognized that the use of the terms "servitude", "servitude
rights", "the right type of servitude" on the right of limited
use of property of another is common in legal science, and unreasonably refuse
them due to the fact that the legislation does not have a general legal concept
of servitude.
In modern works
devoted servitudes actually given analysis using only the dogmatic method of
jurisprudence, commentary of the legislation dealing with servitudes in the
narrow sense of the word, offered signs of servitudes on the plot on the basis
of the rules governing the treatment of land in property turnover , in
particular, on the basis of ownership and entitlement vindication or nugatory protection
of rights of the owner of the land servitude and noted the complexity of
solution of question, what rights other than those listed directly in the
legislation, may be referred to in rem , including servitudes[5]. Specifically it
is not given general definition of servitude and also is not determined by its
place in the system of property rights.
In particular, in
his work " The right of ownership and other real rights " A. T.
Dzhusupov considers only one type of real right of limited use of another's
property - land servitude , without specifying the nature of its legal
definition and not giving real right of limited use of another's property [6] .
And if we can agree with the author of the textbook, which said that the Decree
of the President of the Republic of Kazakhstan, having the force of law on
December 22, 1995 ¹ 2717 "On Land" (repealed) for the first time this
kind of detail regulated servitude rights such as limited use of someone else's
land , then we can not agree with the assertion that the legal regulation of
servitude rights was first given by the Decree "On the ground " as
the basis for the legal regulation of the rights to someone else's thing, which
is certainly true , and the servitude, is section 2 of the Civil Code,
"Title and other property rights" and in particular paragraph 6 of
Article 188 [ 7].
Y.K. Tolstoy,
considering in accordance with Russian law, only civil legal regulation of land
servitude, pays special attention to the art. 277 of the Civil Code of the
Russian Federation, according to which the servitude may be encumbered buildings
and constructions is not due to the use of land. Thus to encumbered buildings
and structures shall apply rules concerning land servitude Art. 274 - 276 of the Civil Code of the Russian Federation.
In addition, Y.K. Tolstoy notes that Russian civil law knows a number of personal
servitude, though not called by their its name[8].
I.V. Shchennikova
examines in details the servitude in
historical terms , the use of the servitude in modern civil law of the
capitalistic states . When determining the servitude under Russian legislation,
it is conducted analysis of the norms of the Civil Code of the land servitude [9].
Determining servitude as limited real rights, arguing that determining the
absolute servitude rights, is the legal protection of the rights holder of the servitude,
I.V. Shchennikova limited only by land and servitude property and does not
address the issue of systemic servitude in law and science of civil law, and
also reveals one of the most important aspects of this objective property law,
the economic foundation and existence of the servitude.
At the same time,
servitudes, due to reorientation of the legal regulation of property relations
on market principles and the emergence of private ownership of land is becoming
increasingly important in public circulation. Although their number is
negligible at the present time, there are all the economic and legal
preconditions for the emergence of new types of servitude rights. The necessity
to systemize and structure determination of property rights will require the
definition of the legal nature and the disclosure of a number of property
rights, not traditionally considered as the Soviet civil law corporeal terms of
known science institutions of civil law property rights. This, in particular,
some property rights associated with hereditary or rent relations,
traditionally regarded science of civil law since Roman law as a personal
servitude. A new approach in determining the rights associated with the land,
as from the time of Roman law servitudes most often also associated with rights
to the land and seen as a way to establish the necessary property turnover economic
domination of the person's land , cultivate it, while respecting the rights and
interests of the owner of such land. In this context, great importance is the
study and definition of servitude signs rem rights on the basis of existing
scientific theories about servitudes and in accordance with the civil
legislation of the Republic of Kazakhstan. Doctor of Law, Professor M.K. Suleimenov
considers necessity to determine the characteristic features of the servitude
and to determine their place in the system of property rights (in particular rights
system on another thing) [10]. This work is essential, primarily for the legal
definition in the law of servitude, having, of course, the peculiarities of
legal regulation in comparison with the other versions of the rights to someone
else's thing (e.g., such as the right of permanent land use, shared living
quarters in the hiring of public housing, with more advanced compared to the servitude
with powers use).
Legal definition
of servitude is necessary to distinguish between them and with apparently
similar to servitudes, restrictions of property rights under the law, formerly
called pre-revolutionary civil law rights of participation (or restrictions by
law). Unlike servitude, ownership restrictions under the law do not have a
particular subject, do not give a possible subject with powers to use the
property, which certainly excludes them from the property rights system
involving specific media usage rights and privileges, even though limited in
scope, or having focus on the use of certain qualities of things.
To determine the
characteristic features of servitude rights must, in our opinion, to determine
the content of the signs of a subjective right, the base of the servitude, its
object, the subject composition servitude relationships, and to consider legal
regulation in the most common types of property turnover Kazakhstan easements
(servitudes). Important in determining the servitude as a kind of property
rights, has a resolution of the issue objectively, the economic basis of their
origin and existence in property turnover.
An easement (servitude) is a
right to use someone else's thing in the interest of a particular person.
Describing the servitude as property law, it should be noted that it binds to
the thing and not the subject of property rights. That is a subjective right to
set thing right and it has nothing to do with the requirement of taking any action
by the property owner or other third party. But it does not cover the issues of
the relationship between entities. Servitude, as an absolute right, stipulate
an absolute relationship, involving passive obligation of all citizens,
including and the owner of the property, to refrain from violating the rights
of servitude.
Servitude is not derived
from the ownership right, although its main content is subject to certain authority
to use a specific object. But the powers of the owner and holder of the servitude
rights, with similar features, at the same time have significant differences.
Competence to use the right of servitude limited to a certain direction and
purpose of use, as well as retrieving only the natural properties of the thing
in respect of which set it right. At the same time the proprietary rights of a
larger volume and greater freedom [11].
Right of ownership and servitude
on the same thing, as well as all property rights to the same thing, are in
conflict with each other, i.e. in contradiction and opposition. Ownership in
the implementation of use inferior conscientiously implement the use (in a
certain direction for a specific purpose) of the holder of the servitude right
, i.e. in this case, the priority is given to servitude rights and the owner
can use the thing insofar as it does not interfere with the implementation of
the servitude. At the same time by making use of servitude is a certain
direction, or is it a specific purpose, and when applied unnecessarily harm the
subject servitude, servitude rights holder does not have any advantage ,
moreover, he is responsible for harm , and the owner of the collateral has
demand the termination of the servitude.
Historically, since Roman
law, there are two types of servitudes: real (praedial) and personal. Both
belong to the other rights in rem, i.e. have the right to object itself serving
thing and bind each owner of property law with this thing. The differences
between the real and personal servitudes held by the procedure of determining
the subject of servitude law, i.e. for determining whether the person who owns
dominance over another thing.
A real servitude requires
two neighboring plots. In this servitude is set at one of these sites, which
are usually referred to with the servants land. Land person who is empowered to
servitude on the adjacent plot, called the dominant land. Typically, the task
of establishing a real servitude - increase economic suitability of one
(dominant) part due to the fact that their needs are some well-known properties
of the other portion (the employee). Transferring ownership of the dominant
estate to another person entail transfer, as a general rule, and the right to
an servitude on the adjacent plot.
Personal as servitudes, on
the contrary, serve the interests of a particular person and not related to the
presence of neighboring sites (although they can be set in relation to
neighboring areas as well), they belong only to him and, as a general rule, do
not go in the order of succession, whether universal or singular inheritance or
alienation. As a rule, personal servitude rights belong to the subject of this
life.
In particular, the striking
examples of personal servitudes are granted by virtue of the right to use the
legacy known face property coming to the heirs, and the alienation of the house
under the condition of life living in it. And in fact, and in another case, the
right to use is closely connected with the personality of the person on whose
behalf the use of another's property is set, and the death of the holder of
personal servitude, and the denial of his right to a servitude on their stops.
Personal servitude can not be purchased by way of universal succession, for
that matter, can not be transferred to another person through onerous or
gratuitous concessions. As soon as the identity of the person in whose interest
is established use, is essential for acquiring ownership of the encumbered
property , then his rights attached to the absolute nature of the legislator,
having priority even over ownership . Otherwise, the holder of servitude rights
will depend on the actions of the owner of the collateral, from possible
accidents, in particular, the alienation of the collateral without establishing
right of limited use against the property of the new owner. It is to divert (abstraction)
implementation of certain subjective rights of action of any person and
appearance dictated a certain legislative design of proprietary rights,
including servitude and that this right is achieved by imparting signs
absoluteness. Servitude for construction of property law provides the right of
limited use to follow someone else's property, regardless of ownership or other
legal title holder domination over encumbered thing (for example, the right of
permanent land use servient land).
Origin of servitudes, both
personal and real, may be due to the general economic causes of human origin on
another thing - failure to establish dominance over other actual thing, except
in the form of domination over another thing, due to the inability to purchase
this item with the right of ownership the user, for example, in connection with
the state monopoly on certain things [12].
At the same time it must be
recognized that the establishment of the collateral in the form of the right to
use a third person thing is a limitation owner the right to use their property
and other legitimate rights of the owner in the exercise of the powers of the
triad possession use and disposal, i.e., an element affects property rights, as
the exercise of the powers of the triad in its sole discretion. This is a
negative factor for the realization of the right of ownership, which may to
some extent reduce the consumer or social value of the property. At this may
affect the rights of the owner and dishonesty on another item in the
implementation of its use. In order to prevent the negative effects of the servitude
rights characteristic of the type of servitude is strictly defined, limited use
of someone else's thing. Moreover, the servitude is always the right thing to
partial use, always in terms of entitlement to use less than the amount of uses
the powers of the owner, and use is thus carried out in one way or another, a
well-defined target relation, and in accordance with the direct purpose of the
thing under servitude [2]. Winner of servitude rights in no way exceed the
amounts not entitled to use someone else's thing or not to use it for
prescribed purposes. For the same reason the servitude must always have a
certain, specific holder directly named or defined by the possession of another
law, which binds to the establishment of servitude rights .
Though the main content of
the servitude is a partial authority, known as specific use of another's
property in a strictly defined and the target, but its scope may be different
for different species of servitude. Certainly only that the right to someone
else's thing, including servitude and are more narrow content of power,
domination over the thing than right of ownership [13].
Largely volume entitlement
use depends on the purpose for which it is granted the right holder needs
servitude rights. In some cases, when provided for the implementation of the
right of limited use someone else's thing necessary to its possession,
servitude rights can contain and powers of possession. At the same time it
should be noted that the servitude can not be present on the orders of
authority, which always remains with the owner. This follows from the main
content of servitude rights - limited in the amount of the target using a
stranger thing, usually its natural properties, and their essence - the
immutability of purpose and scope of such use.
Servitude rights list is not
exhaustive, as any entity the right to use someone else's thing, when specified
by statute cases, conditions and limitations under which the owner is obliged
to allow the use of his property by other certain persons (i.e., if such a law
would be rendered absoluteness and independence from the rights of the owner,
and if it was to be limited in scope and purpose of use to any one of the
natural properties of things), will apply to servitude in the broad sense.
Appurtenant servitude is the
most striking example of the right of limited use of another's property,
although controversial legislation provided some of its species or their determination.
The legal definition of
servitude given by the Land Code , according to which the servitude recognizes
the right of citizens and legal persons in limited targeted use of land ,
located on the right of private ownership or land use right at the others, i.e.
limited targeted use someone else's land.
Appurtenant servitude is an
independent real right and not a form of land use rights or rights to use the
land, privately owned. Having a lot of similarities, servitude and land use
rights or the right to use the land is in private ownership; differ in content,
objectives, scope and character of the powers of Use. Land servitude , unlike
land-use rights or rights to use the land , privately owned , established in
the interests of the owner of the neighboring land owner or other property
rights to the feasibility of this person to fully use their land , or of the
property right which binds to the servitude (e.g. for exploration).
Land servitude contains
authority to use someone else's land, having a limited purpose and in a
strictly limited amount of his appointment to use some natural properties of
land (for example, if it is a right of passage - it is only on the use of
neighboring land to pass through it, if it is for servitude of exploration work
- that only the use of land to the extent necessary for the production of these
works). While, as the land use right or right to use land , privately owned ,
provided the holder of the right to directly benefit from the land use direct
land use authority and is not due to any other rights. Moreover, unlike a
servitude, the land use right (use the land is in private ownership) includes,
unless otherwise agreed, authority to use in full, except that the limited
nature of the target categories of land. Category of land use authority
restricts not only the owner of the land use rights or rights to use the land,
privately owned, but the authority to use the right of private ownership of
land, which is a typical feature of land use in property turnover.
An example of the servitude may be the next
case. Aktobe Regional Court considered a complaint of an individual
entrepreneur on servitude. Private entrepreneur
G.M. Dyusupova filed a lawsuit against LLP "Bus station Sapar", LLP
"OTES Aktobe" to provide directions on her territory. In order of Civil Procedure Code of the Republic of
Kazakhstan Article 49 , excluding a defendant LLP " OTES Aktobe"
requested install servitude through the Land belonging to LLP "Bus station
Sapar" at Aktobe pr.312 Infantry Division , 4, for travel and pass on Land
Private entrepreneur owned G.M. Dyusupova at Aktobe prosp.312 Infantry
Division, 9L. The plaintiff stated that the city administration in addressing
Aktobe defendant to provide directions, but the city administration gave an
answer that should be resolved in court, the defendant refused to give
directions, is not able to drive and go on your land, requested the lawsuit
suit. The defendant's representatives claim is not recognized and explained
that the offer of a contract by the plaintiff to the defendant was not sent,
the requirements of the court contesting the refusal to enter into a contract
or proposed conditions stated. With the given circumstances, the alleged
requirement of servitude can not be satisfied because the private servitude is established only on the basis of the contract,
asked to deny the claim. Decision of the Specialized Interdistrict Economic
Court of Aktobe region from January 14, 2014 on the lawsuit of Private entrepreneur
G.M. Dyusupova was satisfied.
Individual entrepreneur G.M. Dyusupova entitled
to limited targeted use of land (servitude) along the boundaries of the land
belonging to the LLP "Sapar Bus Station" located in Aktobe on the
southwest side of Avenue 312 Infantry Division for travel and passage of a land
plot owned by Individual entrepreneurship G.M. Dyusupova located in Aktobe,
Prospect 312 Infantry Division, 9L, from the defendant to the plaintiff to
recover the amount of state duty.
The most controversial and
complex issues are types of land servitudes, enshrined in the Land Code, and in
accordance with these varieties, their content and the base of their occurrence.
Definition of servitudes originally set the task of separating them from such
an institution of civil rights, as restriction of property rights under the law
of the so-called right to participate. In this regard, a number of servitudes
in the Land Code are very difficult to attribute to the property rights, and
they are rather limited property rights under the law.
So, Article 68 of the Land
Code of the Republic of Kazakhstan as regards the right of servitude finding
individual on foreign land and rights of passage through them. In this
paragraph 1 of that article provides for the right of any individual to freely,
without any permission, to be uncovered shared plots. Paragraph 2 also provides
for a right of passage to any person through the land, if such land is not
fenced or otherwise designated ban on pass through it without permission. [14]
And in the first and second cases can not in any way identify specific holder
of the right. These rules establish the right of all citizens of the society to
perform certain actions with respect to active land at the same time establishes
the obligation of the owner, as a rule, the owner, and sometimes a person with
the land on the basis of property law - the right of permanent land use,
tolerate third party actions that the owner or land user might not allow, in
accordance with the content of the right of ownership of land or land use
rights.
According to E.B. Osipova the design of this law does not correspond to
the design of an absolute right, assuming a certain, particular copyright
holder is an active subject, and an unlimited range of obligated persons -
passive subjects, citizens active subject. Same right in rem is always
characterized by the features of absolute rights, as this feature, in addition
to the right of the object, is crucial for him and makes it stand out from the
mass of property rights. It is therefore very difficult article 68 Land Code
refer to the institution of servitude because of its content does not follow
the definition of a variety of property law servitude. Content of this rule
should apply to the definition of the limits of the right of ownership and
other property rights [15].
Even by outward signs right
of way across unfenced land or unmarked ban on passage is difficult to
attribute to the real right of servitude. In accordance with the Law on state
registration of rights to real property servitudes to be registered [16]. In
legal literature, a question was raised as technically registration will be
realized such rights. It was suggested that the need for registration of all
types of easements is very controversial, and possibly to register the servitude
must be some criteria - for example, the time period, as was done for the
registration of the lease, but aside from the need to register the servitude,
and in this the case of a right of passage (in accordance with Article 68 of
the Land Code) can not be attributed to the servitudes or rights in rem because
of uncertain circle of entitled persons [11]. Under current legislation, this
gap is eliminated, and in accordance with Article 8 of the Law on state
registration of rights to immovable property shall not be subject to compulsory
state registration in the legal cadastre servitudes less than a year [16].
Article 69 of the Land Code
of the Republic of Kazakhstan provides a classic example of a real servitude
land associated with the ownership of land or the neighboring plot of land [14].
In accordance with this Article, the owner of a plot of land has the right to
demand the right of limited use neighboring land or several neighboring land if
no other way to exercise their property rights and the legitimate interests without
the servitude is not. Competence limited use someone else's land, usually
involves obtaining benefits from the use of the natural characteristics of the
land plot as part of the earth's surface - the right of passage through foreign
lands, laying and operation of communication lines - electricity, water, heat
and other supply lines.
At the same time, this type
of land servitude provides for the use of land and other property, in addition
to property arising out of the ground area as an integral part of the earth's
surface, which follows from the non-exhaustive list of needs, according to
which set the variety of land servitudes. There are no obstacles for the servitude
for use of the reservoir, located on the neighboring property, such as
livestock watering, water extraction for reclamation, etc. The main condition
for the possibility of the servitude is, in our opinion, the inability to
exercise their property rights without the copyright of servitude establishment
of limited use someone else's land, its natural properties.
Servitude relationship in
this case executed contract [17]. In this case an agreement on establishing an servitude
has features first, in the form of restrictions of freedom of contract for its
participants. This is considered article 380 of the Civil Code of the Republic
of Kazakhstan, in accordance with which the compulsion to conclude the contract
possible in cases where it is expressly provided for by the Civil Code of the
Republic of Kazakhstan, acts or voluntary self-commitment. In our case, the
inducement to a contract is a legal binding when the land owner is entitled to
demand the right to establish a limited and targeted use of the adjacent land.
In this servitude can be installed as agreed by the parties meet the owner of
the applicant's claim of servitude (when the opportunity it provides for the
establishment of regulations) and harmonization of the conditions of such
agreement by the parties and by the court - in the absence of voluntary
agreement between the parties, or failing to servitude agreement on the terms
of the servitude agreement and meet the requirements of this in court.
Law on Housing Relations
introduced new kinds of servitude rights, particularly the right of access to
the premises belonging to members of a condominium on the right of separate
(individual) property for repair or replacement of the common property of the
condominium, which can only be produced from the premises of the owner (a real
servitude) [18]. Of course, this has the same right and the owner of the
adjacent room.
New type of servitude rights
have not yet found wide reflection in property turnover in respect of these
rights is not sufficiently developed in the practice of legal regulation and
its coverage requires a separate study them further. At the same time it should
be noted that the legal regulation of these servitudes are largely similar to
the legal regulation of land servitudes, since they belong to a single group of
property rights, united by a common socio-economic and legal nature, origin,
scope and content of the same powers.
Reference
1.
The Civil Code of the Republic of Kazakhstan ( General Part), adopted by the
Supreme Council of the Republic of Kazakhstan on December 27, 1994 (as amended
and supplemented as of 07/03/2014 ). Information Systems CHAPTER: LAWYER
complex legal information (law) of the Republic of Kazakhstan, http://online.zakon.kz
2.
Shershenevich G.F. Textbook of Russian civil law (publishing in 1907). M.:
SPARK. 1995. P. 142, 226
3.
Suleimenov M. Property rights in the Republic of Kazakhstan. In Volume: Private
Law of the Republic of Kazakhstan: history and modernity. Tom 3. Almaty. 2011.
P.431-446, 88-108.
4.
Civil law. Part I. Textbook / Ed. Sergeev A.P., Tolstoy Y.K. 3rd
edition. M.: Prospekt. 1998.
5.
Civil law. Volume II. 3rd edition. Ed. Suhanova E.A., Volters Kluver M. 2005. P.
285
6.
Dzhusupov A. T. Title and other proprietary rights. Almaty: "Zheti zhargy".
1996. P. 41-44
7.
Civil law. Volume II. 3rd edition. Ed. E.A.Suhanova . M. VoltersKluver. 2005. P.
285
8.
Civil law. Part I. Textbook / Ed. Sergeev A.P., Tolstoy Y.K. Ed. 3rd. M.:
Prospekt. 1998. P. 462
9.
Shchennikova L.V. Property rights in the Russian civil law. - M.: Publishing
House BEK, 1996. P. 16-17, 38-52.
10.
Suleimenov M. Property rights in the Republic of Kazakhstan. In Volume: Private
Law of the Republic of Kazakhstan: history and modernity. Tom 3. Almaty. 2011.
11.
Scriabin S.V. Property Law. Textbook. Almaty. 2009.
12.
Meyer D.I. Russian civil law. St. Petersburg. 1910. P. 321.
Http://online.zakon.kz/
13.
Tails V.M. system of Roman law. Textbook. M.: SPARK. 1996. P. 224.
14.
Land Code of the Republic of Kazakhstan dated June 20, 2003 ¹ 442 -II (with
alterations and amendments as of 01.17.2014) Information Systems CHAPTER: LAWYER
complex legal information (law) of the Republic of Kazakhstan,
http://online.zakon.kz
15.
Suleimenov M.K., E.B. Osipov. Legal Lien. Textbook. Almaty, 1999
16.
Law of the Republic of Kazakhstan dated July 26, 2007 ¹ 310 -III “On state
registration of rights to immovable property” (with alterations and amendments
as of 03.07.2014) / / http://online.zakon.kz/
17.
Belgibekova A. Rights to Real Estate / / Legal newspaper on August 18, 2010 ¹
120 (1916)
18.
Law of the Republic of Kazakhstan dated April 16, 1997 ¹ 94 -I «On Housing
Relations" (with alterations and amendments as of 13.01.2014) http://online.zakon.kz/