Право доступа: сервитут или соседское право?

Abstract

The article analyses the right of access: the right of passage and the right of connection (flow) of resources. It is hypothesised that the right of access is not a separate subjective right but an entitlement, i.e. an element of the title under which real estate is used, which allows the right of access to be classified, along with mutual rights (permissible emmission rights), as a category of neighbour’s rights. Since the right of access follows from the very title to one’s property, it does not require the establishment of a limited property right over another’s property. The category of access rights is distinguished from related legal constructs involving interaction with others’ property: on one hand, behavioural possibilities provided by public law, which do not imply any subjective rights (such as public easements); on the other hand, limited property rights, which are independent subjective rights. It is proposed to distinguish easements from the right of access based on the origin, derived from the level of satisfied needs. Neighbour’s access rights are intended to meet the needs of the right holder without which their right would become nominal, therefore the right of access should not require any additional procedures (obtaining consent or a court decision, which would leave the right nominal during the waiting period). The right of access stems from the title but may be expressed by the law as the limits of ownership rights to neighbouring real estate (pre-revolutionary Russia, Germany). An easement as a subjective property right is proposed to be viewed as an adaptation of legal relations to the interests of specific neighbours, shifting the boundary of what is permissible by law towards greater (easement of convenience) or lesser (negative easement) impact.