According to Art.395 of the Civil Code of Ukraine dated 16 January 2003, № 435-IV (hereinafter − CCU), servitude is a right in rem of property of another.
In accordance with Art.98 of the Land Code of Ukraine dated 25.10.2001, № 2768-III (hereinafter − LCU), the right of land servitude is a right of the owner or user of land for limited paid or free use of land of another. What the landowner should know about land servitude is in the following.
It should be noted that the right of land servitude does not lead to deprivation of the land of the landowner, in respect of which to be established the land servitude, right of ownership, use and disposal of it (sec. 3 of Art.98 of LCU, sec. 5 of Art. 403 of CCU).
Servitude could be established by the contract, by law, a testament or a court decision. He could belong to the proprietor (owner) of an adjoining land plot as well as to another certain person (para. 1 of Art.100 of LCU).
According to Art.99 of LCU, the owners or land users of land plots can require the establishment of land servitudes:
- the right to passage by bicycle;
- the right to passage by vehicle via available way;
- the right to accommodation of temporary constructions (small architectural forms);
- the right to lay a piped water supply from another person’s natural reservoir or through another person’s land plot to one’s own land plot;
- the right to water drainage from one’s own land plot to adjoining property or through the adjoining land plot;
- the right to water intake from a natural reservoir, located on the adjoining land plot, and the right to passage to a natural reservoir;
- the right to water one’s own cattle from a natural reservoir, located on the adjoining land plot, and the right to cattle driving to a natural reservoir;
- the right to cattle driving via available way;
- the right to establish scaffolding and storage of construction materials to repair buildings and structures;
- others land servitudes.
According to sec.2 of Art.100 of LCU, land servitude is subject to the state registration in the procedure established for the state registration of rights to immovable property in accordance with the Law of Ukraine “On state registration of rights to immovable property and their encumbrances” of 01.07.2004, № 1952-ІV.
Land servitude cannot be the subject of purchase and sale, or transmitted via any means by a person, in which interests the servitude was established, other individuals and legal entities (para. 2, of Art.101 of LCU).
Art.102 of LCU and Art.406 of CCU contains a comprehensive list of grounds for termination of servitudes. However, their occurrence does not lead to the automatic termination of servitude, but is only a basis for cancellation of its state registration. The force of land servitude is terminated only after the abolition of the latter.
So, the grounds for cancellation of state registration of land servitude are:
- combination all in one of the subject of the right of land servitude, in which interests it is established, and the owner of the land plot;
- refusal of a person, in which interests the land servitude is established.
A person, in which interests the land servitude is established, is entitled to refuse it at any time. For this purpose, he/she should submit a letter of abandonment of servitude in a written form to the authority of state registration of rights to land;
- a court decision on the abolition of land servitude. In the case of the adoption of such a decision by the court, the court should send it to the authority of the state registration of land rights to make the appropriate changes in the State Register of rights to immovable property;
- the end of the term for which the land servitude was established;
- failure to use land servitude within three years;
- violation of the servitude conditions for its use by the owner.
At the request of the landowner, in respect of which the land servitude was established, its effect could be terminated in a legal procedure, if:
- there is no reason for its establishment;
- the availability of land servitude makes it impossible to use the land plot in respect of which a land servitude is established according to the intended purpose.
According to Art.101 of LCU, the owner, the land user of a land plot in respect of which the land servitude to be established, is entitled to demand from the persons in which interests it is established, a payment for its establishment, unless otherwise provided by the law, and the landowner can count on the compensation of losses caused by the establishment of servitude.
