N. Katcheishvili Economist, Engineer-Constructor Z. Azarashvili Consultant in Legal Issues, Jurisprudent
The right of limited use of other’s land plot and the problems connecting with its practical utilization
It is known that the main components of the immovable property are the land and together with it, its constituent integral parts, such as buildings and structures and constructions steadily connected with it. The formation of the land market and its development on the legislative basis, first of all are one of the important stages of the market economy development of the immovable property.
During the processes of the state owned property privatization, a great section of owners, legal and physical bodies have been formed. For the juridical regulation of their privately owned property, it became necessary to work out the new forms of its possession and management, which in other economically developed market countries represent the common market mechanism. Thus, the new concepts of formation, usufruct and servitude have appeared in the Civil Code of Georgia, which regulate the rights of use of others’ property provided by the Law.
Now we will stop at the concept of servitude, in connection of which we have dealt with the problems, in the view of its practical utilization. This concept, in reality is comparatively new, as in the old socialist formation the only owner of the land (the greater part of it), as of the main component of the immovable property was the State. For the immovable fixed assets (among the buildings, structures, facilities of economic, power and municipal functions) the technical terms, sanitary and fire prevention and other norms have been used, in accordance with the SNIP (Construction Norms and Rules) and other technical regulatory bases processed thenadays, which did not possess norms including rights of ownership or limited rights.
What is the servitude?
According to the Legislation of Georgia, particularly in the Civil Code, the definition of the servitude is very complicated and unclear, it is difficult to understand to the men of no law, and issued from the content of seven articles dedicated to this concept, besides separate individual cases, the servitude is practically non-utilized. Because of this, it is complicated or even not possible to define the exact juridical rights of the servitude and the registration of these rights in the Pubic Register Service.
The servitude is the limited right to use others’ land plot.
The servitude can be also defined as the limitations of the rights of one owner, at the expanse of the second owner. Factually, by the use of the servitude right, the rights of one owner of the immovable property are restricted from the side of the second owner that is invoked to the functioning of the object located on the territory of the owner issued from the important terms. Despite this, on the land plot that is loaded by the servitude the ownership rights of this owner are not limited.
These processes that mean the spread of rights of the servitude, or the load of other owner’s certain part of the territory by the servitude may have three types:
1) when the land plot of one owner is located on the other owner’s territory (or intercrosses it, in case of line structure);
2) when the land plots are located adjoining to each other;
3) when the land plot of one owner do not adjoin (located in distance) to others’ ownership, but can be loaded by the servitude (for example, the high voltage power transmission lines, or in case of high pressure water supply lines, when the part of the neighboring land plot comes across with their conservation zone ranges).
The necessity of legislative regulation of the servitude, became particularly critical after the Law of Georgia “On the registration of the rights of immovable objects” has acknowledged the line structures as immovable subjects, that present the essential and integral part (Paragraph 1, Article 16) of the immovable subject (land plot).
In contrast to the common immovable subjects, such as voluminous buildings and structures that have three dimensional measurements and accordingly, the definition of their capacity counted in cubic meters and the line structures have only one measurement – the length that accordingly measured in running meters (or running kilometers).
This feature of the line structures is very important, as it can count several tens of running kilometers in accordance with its project dislocation. Naturally the running structure in this case will intercross or parallely cross several tens or maybe even hundreds of land plots in the ownership of private legal, physical and state parties. If, in this case, we follow the common way of the servitude agreement (nowadays, the active legislation does not have other means of regulation), the following issues will be agreed with each such private parties:
1) the number of zones (area) covered by the servitude and their geometrical zones (parameters);
2) if the servitude is charged or non-charged (it is natural that every owner will demand on the charged servitude);
3) the cost of 1 squire meter of the zone covered with servitude;
4) if the agreement is termed or non-termed;
5) what rightful limits should be agreed.
In this case it is impossible to solve the real private juridical problems with the help of the general concepts of the servitude. It is natural that the question arose: what will be the way to decide this problem?
This way obviously exists and issued from the practice of many foreign countries it is necessary to accept the concepts of “private” and “public” servitudes on the legislative level. Our legislation today does not let us to regulate quite a number of juridical issues that are connected with the receipt of legislative norms. Although, it should be mentioned that only one concept can be found in our legislation, the “personal servitude” (Article #253 of the Civil Code of Georgia) which is rarely used in practice and in comparison with the “private” and “public” servitudes – is comparatively secondary.
Here we can discuss the practice of the European countries, where the concepts of “private” and “public” servitudes are used and accordingly the rules of use for the mentioned types of servitude, their bases, are written in details in different countries within the acceptable interpretations.
In case of the “private” servitude the contract is signed between two individual parties on the basis of the personal agreements. The “private” servitude can be of two kinds:
2) defined judicially (in case if the private parties can not agree and apply the court).
The “public” servitude is established by the law or other regulatory-legal act. In most cases the “public” servitude is approved by the self-government authorities if it proceeds from the necessity or state and residential populations’ concerns.
The “public” servitude has a large sphere of use, these are buildings and structures that during the operating period possess the different kinds of special functional load, for example water gutter structures, high and low voltage power stations, gas stations, petrol stations, biological and radioactive buildings and structures and more others.
Often the “public” servitude is arranged for the following purposes:
– for passing or crossing the land plot;
– for use of land plots in municipal, engineering, electric power and other lines exploitation during its current and total repair;
– for the objects of transport infrastructure;
– for the fulfillment of the engineering and geological works;
– for use of land plots in hunting and fishing;
– for easy way to the coastal strip.
Together with it, the “public” servitude is important for almost all line structures; overhead and underground transmission lines, water, gas and other pipes and also running structures where the servitude zones cover and include a large amount of land plots in the ownership of different private parties.
It should be mentioned that the registration of the “public” servitude is possible for the private and state lands and no limits for doing this should exist. This is an important condition for the owners of the line structures that will be the defense mechanism for the running lines and highways.
From this point of view we have serious legislative vacuum in Georgia. In Georgian legislation the concepts of “public” and “private” servitudes are not implemented at all and its activation by legislative rule, we think, first of all is the State concern. A great number of problems should be solved by this, as the objects of municipal and city industry services will be defended by the law, proper conditions will be created in order to develop the line network or other line objects from the servitude rights protection (for example automobile and railway roads).
It should be noted, that the declaration and registration of the rights of the “public” servitude is especially important for line structures, as they are “the objects of independent rights” in contrast to other immovable subjects (Article 16, Paragraph 1 of the Law of Georgia “On the registration of rights on the immovable subjects”) and do not possess the right of land ownership (as for example the buildings), and from the rights of immovable subjects it is possible to registrate only the servitude rights.
The Order N800 of December 13, 2006 “On the approval of the instruction regarding the registration of the rights on the immovable subjects” of the Ministry of Justice of Georgia should be considered as the improvement of the concepts of the “public” (juridical) servitude and the effort to fulfill the existing legislative vacuum, where in the Article N40 there is a demand that in case if the right for the limited use of others’ property appears, for the registration of changes and seizes (sub-paragraph “a”) the agreement will be presented, particularly where it is mentioned that: “the agreement on the limited use of others’ property (that is the private servitude) and also pointed that “the above is not demanded in case of legal servitude”, that in reality are the concepts of “private” and “public” servitudes. Unfortunately, these concepts do not find the following legislative fulfillment and specification, and even more, in the next edition (the Order N313 of Sep 27-2007) the Article that was so important during the definition and registration of the rights on the immovable subjects had been removed at all.
Without this the owners of the line structures deal with a great number of problems from the legal point of view. Such are power, water and gas distribution companies where the main fixed assets are line structures along the whole territory of the city and within the bounds of the city (for example overhead and underground cables). For their normal functioning it is necessary to protect them by the servitude rights as it is also necessary for the transformer substations, high voltage substations, water reservoirs, gas stations and their transmission points. Pursuant to the large quantity of these objects, it is natural that the definition of the servitude for them and their juridicial registration is possible only in case of existence of the “public” servitude.
Otherwise, it is practically impossible to sign the servitude contract individually with each particular owner.
Right because of this it is necessary to make changes to the Legislation of Georgia and consistently arrange the concept of “public” servitude, as well as “private” servitude.
The sharing of the servitude zones, the fixing, the knowledge of appropriate limits and their fulfillment first of all is the safety guarantee and the interest of the owner whose territory is loaded by servitude. So for example, we can often deal with the cases when the garage, or other compartment is constructed almost on the transformer substation (or constructed on top of it), or when the washing or the petrol station is constructed on the high pressure water line. Unfortunately, this kind and other violations that are dangerous for life can be found in our city on the municipal and other general use buildings and structures located on the territories of the private owners.
It is clear that when the owner of the territory became the holder of the immovable property (in most cases), the municipal and other general use buildings and structures, among them power, water and gas supply lines, or the part of any network had been on that territory by that time. In this case, in order not to follow the juridical review of the privatization problems, it will be easier to set the patience necessity for the owner in accordance with the Article 180 of the Civil Code of Georgia and the zones loaded by servitude on their territories should be defined by the non-charged “public” servitude. We think that also geometrical parameters of the zones covered by the servitude should be defined by the legislation and their areas that can be joined to all kinds (power, water, gas) of line structures according to the technical norms of security zones.
It will be very important to define if the “public” servitude is charged or non-charged. In this case it is obvious that the servitude should be non-charged.
The charged “public” servitude with the charges defined by the law can be surveyed on the owner’s territory, for example, in case of arranging the new (under construction) line structures if these terms are acceptable for the land plot owner, besides those cases when the above mentioned is raised from the State necessity and importance.
In case of existing line structures, if the “public” servitude law defines the servitude as charged, then the quantity of this fines wil be minimal as it will, by all means, be reflected in the tariffs of the owner companies of the municipal water, gas, power and other facilities, that for certain is not the interest of any party, first of all the customers. So we think that the “non-charged” public servitude will be established for the municipal facilities.
Besides, we think that such servitude should be unlimited and be defined by the law. In this case, we should mention the example of Germany where every owner is obliged to stand the running power transmission line intercrossing the land plot being in his ownership, and in most European countries where the servitude is charged, its cost is much more lower then the cost of the land and is actually symbolic.
The geometrical zone parameters loaded by the public servitude should be also defined by the law that depends on the water supply diameter, the capacity of the power transmission line and others.
To define these parameters it is possible to use for municipal and other purpose buildings and structures and line structures, according to the old construction (SNIP), fire prevention and sanitary protection zone parameters (the majority of them is still active).
In case if the rights of the land plot loaded by the servitude goes to the ownership of the other person then the servitude will be reserved. So, the servitude can not be the subject of negotiations (sale and purchase and others) and can not be handed to the persons that are not the owners of the immovable property the servitude had been established for.
We think that the decision of the mentioned issues covers the competence of the Ministry of Justice. The fulfillment of the mentioned changes can be also done by this authority, even on the level of sub-normative acts. In case the organization or the company interested in the putting this issue, it is possible to discuss it in Tbilisi City Self-government and Tbilisi City Board, as it works in most European countries.
The literature sited:
1) The Civil Code of Georgia.
2) The Law of Georgia “On the registration of rights on the immovable subjects”.
3) The Order #800 of December 13, 2006 “On the approval of the instruction regarding the registration of the rights on the immovable subjects” of the Ministry of Justice of Georgia.
4) The Order #313 of September 27, 2007 of the Ministry of Justice of Georgia “On the changes and additions made to The Order #800 of December 13, 2006 “On the approval of the instruction regarding the registration of the rights on the immovable subjects” of the Ministry of Justice of Georgia.
5) Property in Europe. Hurndall A. 1998. London. Pp. 111, 216; Swedish land and cadastral legislation. 1998. Stockholm. Pp. 86 – 87.
6) Swedish land and cadastral legislation. 1998. Stockholm. Pp. 86.
7) Servitudes in Legislation of Russia.
8) Official registration of the rights on land under the line objects. Mikhail Bocharov, Head of Land Legislation Unit within the Department of Property and Land Affairs of Russian Federation.