Access to garden-plots with reference to the Model Law of the CIS Member States

Abstract

The paper is dedicated to the analysis of the Appellate decision of the Leningrad Regional Court dated August 11, 2021, No. 33-3839/2021 in which the court concluded that the residents of the garden village have rights to access to individual land plots on the basis of an easement type encumbrance established in relation to the roads of the village as a result of the division of the original land plot. In support of its position the court refers, among other, to the Model Law “On Limited Property Rights”, approved on November 27, 2015, by the Inter-Parliamentary Assembly of the CIS Member States. At the same time the case is remarkable not only for its reference to the Model Law, but also for the fact that in its resolution a commendable attempt was made to find answers to questions about the allowability (non-allowability) of the alienation of general purpose land plots in garden villages and gated communities separately from individual land plots in these villages and communities; for the qualification of the restriction established by a cadastral engineer in the process of dividing a land plot and displayed as a special note in the Unified State Register of Real Estate. In addition the case allows to reflect on the allowability of using Model Laws to resolve cases in Russian courts; on the presence (absence) of provisions on so-called “legal easements” in the Federal Law of July 29, 2017, No. 217-FZ “On Gardening and Horticulture by Citizens for Their Own Needs and on Amendments to Certain Legislative Acts of the Russian Federation”; on the possibility to establish a “private” easement in relation to one’s property, including the process of dividing one’s land plot; on the most effective ways to protect owners of individual land plots in garden villages and gated communities in the events of conflicts with owners of general purpose land plots in these villages and communities.