Can a negative servitude be established as a negative claim?...

Can a positive easement be established by a negative claim?

A servitude can not be established by a non-governmental claim. To do this, there is a special procedure, regulated by paragraph 3 of Art. 274 Civil Code: easement is established by agreement between the person who requires the establishment of an easement, and the owner of a neighboring site and is subject to registration in the manner established for registration of rights to real estate. In case of failure to reach an agreement on the establishment or conditions of servitude, the dispute is resolved by the court on the suit of the person requesting the establishment of an easement.

In practice, it is very difficult to distinguish between negator lawsuit and the requirement to establish an easement, especially since both the first and the second can ultimately be aimed at hampering the neighbor in order to fully realize the powers of the owner. Such a fine line allows some unscrupulous participants in civil legal relations to cover the claim for establishing an easement with a negligent suit, for example, in order to avoid payments under the easement agreement. In this regard, there is a need for a strict separation of negatory claims from claims for the establishment of servitudes.

The main differences of the claims are as follows: to satisfy the negator claim it is necessary to prove that the obstacle in the use of the thing was the result of actions (inaction) of the respondent, whereas the requirement to establish servitude is not associated with the action (inaction) of the obligated person and depends only on objective need to use someone else's things. Moreover, a negator lawsuit is presented only to a person whose action (inaction) is unlawful. To establish an easement, there is no need to establish the wrongfulness of the defendant's behavior.

So, the owner of one room turned to the court to the owner of another room in the same building with a negator claim. The subject of the claim was the requirement to remove obstacles in the use of property through unimpeded access to the plaintiff's premises through the defendant's corridor. Claims the plaintiff justified by the fact that the defendant forbids going through his corridor, which goes to one of the doors of the premises of the plaintiff. During the consideration of the case it was established that the exit to the corridor is a spare one and was made by the plaintiff recently. Thus, the defendant did not take any actions (inaction), which could lead to violation of the rights of the plaintiff. In addition, requiring the defendant to provide access to the emergency exit, the plaintiff, in fact, required the granting of the right to use the corridor, which is a concealed demand for the establishment of an easement.

Is a negator claim applied to protect the easement?

Initially, the owner of the servitude was given a special suit, which was called confessional. The subject of this suit was the demand of the servitude entity, declared to the owner, about the plaintiff's admission to the defendant's property, removal of obstacles in using his thing. The current legislation of special lawsuits aimed at protecting easements, does not know. But if we proceed from the fact that, firstly, an easement is a proprietary right, therefore, real-legal means of protection are applicable to it; secondly, servitude is expressed in the ability to use a thing, therefore, a property-legal method of protection must be applied, aimed at removing obstacles in use, then a negator claim (Article 304, 305 of the Civil Code of the United States) should be considered appropriate.

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