The fate of an easement in the transformation of a dominant land parcel

Abstract

The article is dedicated to the detailed analysis of the Ruling of the Third Cassation Court of General Jurisdiction dated February 16, 2022, No. 88-3377/2022, as well as several additional acts of courts related to this Ruling. In this case courts discuss the essence of an easement, real nature of an easement, fate of an easement in the transformation of a dominant land parcel or a servient land parcel, protection of an easement, termination of an easement. The author of the article critically evaluates these reasonings, referring to the norms of operative Russian and foreign legislation, current courts practice, doctrinal sources, historical materials, projects for reforming Russian legislation. The case under discussion is remarkable because several courts in support of their positions refer among others to the Model Act “On Limited Real Rights”, approved by the Inter-Parliamentary Assembly of the CIS Member States on November 27, 2015. The author of the article states the question: is it permissible to use the Model Act to resolve a particular case on the territory of the Russian Federation? And the author of the article gives the positive answer to the question, as far as the courts do not apply the Model Act directly, but resolve the case based on the general principles and meaning of civil law, requirements of good faith, reasonableness, fairness. Therefore, the Model Act is applied by the courts as the act that reflects such principles and meaning, for this reason the reference to the Model Act has a completely acceptable and even welcomed illustrative character. The analyzed case also confirms the idea that the modern regulation of easement relations in Russia indicates the existence of numerous theoretical and practical problems in this area. The multiple recommitment of the case to the appellate court, enormous controversy about the fate of the case in the legal community — are clear confirmation of this.