24
Aug2018

About Legal Servitudes

The tentation for prospection, exploring and extracting new resources, particularly the famous shale gas, calls into question the legal servitudes the land owners are to comply with and the way of their exercising in concreto. For that matter, there are a few highlights that should be taken into consideration, as follows.

As an expression of power and access to possession, use and disposal of goods, as an element of social and economic identity and belonging, the right to private property, as a fundamental right, is governed and guaranteed by article 44 of the Romanian Constitution and article 1 of the additional Protocol no. 1 to the European Convention on Human Rights.

The easement, as a dismemberment of the private ownership right, regards a legal burden imposed for the use and the utility of another person’s immovable property. Consequently, the easement is a right concerning another person’s goods. This study focuses on a certain category of this main right in rem: the legal easement, which has given rise to a series of doctrinal controversies regarding its legal regime.

  1. Theoretical Elements

When categorising easements, we find a criterion regarding the origin or the way of establishing the easements. Thereby, the Civil Code divides the easements in three large categories[1]: natural easements, legal easements and easements by the act of man. However, over the years, the published literature has criticised this classification[2]. First of all, both natural easements and legal easements are simply normal restrictions or limitations of the use of the property right, usually. Furthermore, when the law establishes a legal easement, the establishing is also based on the natural situation of vicinity. Moreover, the natural easements are legal as well, due to the fact that they are recognized, governed and sanctioned by law, except for the parties’ action – a term much more precise than “the act of man”, that could refer to both legal facts and legal acts[3]. Secondly, they are not actual easements, dismemberments of the ownership right, but simple liabilities arisen from the vicinity relation. We may consider a conceptual uniformity enacted by the legal common sense/usage that throughout the New Civil Code got the name of “limitation of property”. In addition, the so-called “easements” (natural or legal) are binding on third parties without fulfilling the real-estate publicity formalities[4].

The easements we are about to analyse have, as far as the legislator is concerned, an inherent connection to the element they put forward – the public service or interest. This aspect determines an inconsistency in the legislative technique process that is not oriented with regard to the liabilities imposed on the individuals, the ones who will bear a limitation of their right to property. For that matter, the doctrine has determined a series of legislative techniques that the legislator utilises when establishing new easements and which facilitate the detecting and the understanding of their purpose:

 

  1. a) In numerous texts, we find the easement referred to as such by the law. We may consider, for instance, the civil aeronautical easements, established in order to assure the safety of flights, the easements established by Law no. 123/2012 of electrical power and natural gas (articles 12, 14, 15, 109-113, 117). The legislator’s option for classifying a burden in rem as an easement is not the most fortunate, terminologically speaking, but seems embedded and does not determine any suspicion regarding its good faith (anymore). The legislator does not automatically prevent other liabilities imposed to the individual owners by the same law and regarding the same public interest from entering the same category, even if they are categorised otherwise throughout the regulation.

 

  1. b) The second option for establishing administrative easements is the one in which the legal text imposes liabilities on the owners or the rightful holders of the goods, without considering their legal nature. In most cases, these liabilities have a negative nature, showing up as prohibitions that restrict the free exercise of the right to property: prohibiting the agricultural or forest crops in the safety areas of the public roads. Positive liabilities, on the other hand, are not frequently found in legal texts and can usually impose even costlier legal burdens.

 

  1. c) A third legislative technique of establishing administrative easements is the one through which the law determines the authorities’ or the concessionaires of the public services’ right to exercise actions of usage over the immovables property of individuals, without referring to any of their liabilities or legally proclaim it[6].

For instance, the right of the telecommunications network suppliers, authorised to access the property, to install, maintain, replace or move any element of the electronic communications network, as well as the endpoints used for providing electronic communications services, on, above, inside or under private property immovables (articles 3, 4 and 5 of Law no. 154/2012[7]). However, under this law, exercising the right to access by the suppliers is not unconditional – it is necessary to file an application in this regard, as well as to submit a documentation in accordance with the requirements with respect to the right to property and to private life, as well as the proper functioning of public services.

  1. Legal Basis

 

  1. The Constitution of Romania. Article 44 paragraphs (1) and (2) of the Romanian Constitution states that “The right of property, as well as the debts incurring on the State are guaranteed. The content and limitations of these rights shall be established by law. Private property shall be equally guaranteed and protected by the law, irrespective of its owner (…).” The fundamental law determines a series of limitations in rem, such as: the goods that are only subject to public property, expropriation and nationalization, projects of general interest, legally acquired assets that cannot be confiscated. The limitations in personam determined by the Constitution are the following: the owner’s obligation to abide the regulations or the local customs regarding the protection of the surrounding environment, the ensurance of neighbourliness, as well as obeying the other obligations prescribed by law for the owner, respectively the acquirement of “the right to private property of land under the terms resulting from Romania’s accession to the European Union and other international treaties Romania is a party to, on a mutual basis, under the terms stipulated by an organic law, as well as a result of lawful inheritance.”

The limitation provided by article 44 paragraph (5) of the Constitution is also of great relevance in analysing legal easements: “For projects of general interest, the public authorities are entitled to use the subsoil of any real estate with the obligation to pay compensation to its owner for the damages caused to the soil, plantations or buildings, as well as for other damages imputable to these authorities.”

Some aspects of constitutional contentious regarding the limitations of the right to property were also evoked by the Constitutional Court in a series of decisions following the raising of unconstitutionality exceptions. Thereby, regarding the former legislation in the matter of electric power, the Constitutional Court, by decision no. 324/2010, published in the Official Journal no. 329/19.05.2010, bindingly stated: “Articles 16 paragraphs (5) and (6) of Law 13/2007 in the matter of electric power state the possibility for the land owners affected by the exercising of the rights of usage and easements by the holders of licenses and authorisations due to the power capacitites achieved after the enforcement of the criticised law, following agreements, to receive indemnities and compensation (…) At the same time, the Court notes that the two categories of holders of the right to private property, more precisely those on whose lands the power capacities were already existent, respectively those on whose lands the power capacities are to be achieved, following the enforcement of Law no. 13/2007, are differentiated by the objective moment of achieving those power capacities, in relation to the date of enforcing the law regulating the right to indemnities and compensation.” By the same decision, the Constitutional Court stated that “As a matter of fact, for the lack of usage of private property lands affected by power capacities, the landowners are entitled to compensation according to general law.”

As a consequence, the first issue that rises with regard to the legal easement is concerning the moment of acquiring the property of the lands and the law succession in time in the matter of the analysed fields: exploitation and utilities. However, regarding the general law principle of the law succession in time, the civil law only applies in the future and does not apply in the past (the moment before its enforcement). Therefore, throughout the analysed law, it is stipulated an objective criterion – the law succession in time meant to meet the requirements of predictability and to abide the principle of legal certainty. Consequently to this temporal succession of laws, individuals cannot receive compensation in the sense of assets on which a legitimate expectation has not been developed, according to the criteria provided by the European Court of Human Rights’ case law.

  1. The Civil Code. According to article 755 paragraph (1) of the New Civil Code, the easement is defined as the “legal burden that applies to an immovable asset, for the use or the utility of another owner’s immovable asset.” The New Civil Code offers examples of other legal limitations that also refer, amongst other things, to the right of passing for utilities atated in article 621 as, for instance, the city grid such as water or gas supply, underground or aerial electrical cables and suchlike, as well as any other facilities or equipments with the same purpose. Here’s how the right to property, an individual right that is enforceable erga omnes, ends up being partially subordinated to public utility and constrained with the purpose of reaching its target – to serve the collective interest. And aren’t we reaching nonsense when talking about subordination in civil legal relationships? In fact, this right ends up being at the crossroads between two big law areas, both based on fundamentally different principles: civil law – the equality of the parties and administrative law – a law governed by the lack of balance between the exorbitant power of the state and the individual.

Unlike the legal right to passing one’s property, established for the particulars in the context of vicinity, the right to passing for utilities is established by law for the public, in the benefit of the competent public authorities or the ones who were given the right to install the city grid[8].

Also, it should be mentioned that, in order to perform work in the mining sector, in the oil field or electricity, there are special provisions that establish, for instance, the surface easement or the legal easement that are to be analysed below.

  1. Special Legislation. The legal limitations of the right to private property established for carrying out economic activities found in special laws are:

 

  1. a) Mining Law no. 85/2003 [9] determines the following limitations of the right to private property:

– establishing in favour of the holder of the mining activity a legal easement over the lands necessary to the access in the exploitation or exploration perimeters and any other activities these involve;

– the exercising of the legal easement in return of the payment of an annual rent;

Regarding the legal regime there are a few noticeable particularities:

– The legal easement concerns the public interest, more precisely the facilitating of the exploitation and exploration.

– It is a legal easement.

– Its content is mentioned in article 7 and contains the right to access the perimeters of exploitation or exploration and any other activities these involve.

– Can be exercised with no entry in the land register during the entire existence of the activity.

– The exercising is carried out for consideration, against the payment of an annual rent to the landowners affected by it.

– The amount of the rent is determined by agreement or by the court, in case of dispute.

– The law also imposes a deadline until the individuals can make an agreement with the beneficiaries of the easement – 60 days since the written notification from the holders of licenses and/or permits to the landowners.

– Moreover, regarding the duration of the easement, the law sees it as an element of proportionality and predictability for the individuals who thereby have the possibility of knowing the time they will be lacking the usage of their lands. Consequently, thelegal easement duration is the one of the mining activities.

– The principle on which the determination of the lands that are to be affected is based on, regarding the areas and the owners, is the principle of minimum interference – of the least possible violation of the right to property.

– The law also establishes an interdiction for the easement for mining activities: on lands with historical, cultural, religious monuments, archeological sites of utmost interest, natural reservations, sanitary protection areas and hydrogeological protection perimeters of water resources.

  1. b) Law no. 238/2004[10] on petroleum states the following limitations of the right to private property:

– over lands necessary for the access in exploring and exploiting perimeters and over lands that are necessary to any activities these involve, it is established, in favour of the holder of the licence, a legal easement;

– over lands in the property of third parties located in areas of protection and security, it is established a legal easement;

– the exercising of the legal easement is performed against payment of an annual rent to the land owners affected by it;

– the right to access the operating perimeters of the pipelines is differentiated regarding the nature of the activities that are to be performed permanently or occasionally.

There is a series of particularities regarding the legal regime:

– The legal easement concerns the public interest, more precisely the facilitating of the exploitation and exploration.

– It is a legal easement.

– Its content is mentioned in article 7 and contains the right to access the perimeters of exploitation or exploration and any other activities these involve.

– Can be exercised with no entry in the land register during the entire existence of the activity.

– The exercising is carried out for consideration, against the payment of an annual rent to the landowners affected by it.

– The amount of the rent is determined by agreement or by the court, in case of dispute.

– The law also imposes a deadline until the individuals can make an agreement with the beneficiaries of the easement – 60 days since the written notification from the holders of licenses and/or permits to the landowners.

– Moreover, regarding the duration of the easement, the law sees it as an element of proportionality and predictability for the individuals who thereby have the possibility of knowing the time they will be lacking the usage of their lands. Consequently, thelegal easement duration is the one of the petroleum activities.

There are a series of principles regarding the purpose of the easement and the activity:

– The principle on which the determination of the lands that are to be affected is based on, regarding the areas and the owners, is the principle of minimum interference – of the least possible violation of the right to property.

– The equality of treatment and equity principle governs the access to the affected lands which is established by negotiations between the holder of the petroleum agreement and the landowners.

– The law also establishes an interdiction for the easement for petroleum activities: on lands with historical, cultural, religious monuments, archeological sites of utmost interest, natural reservations, sanitary protection areas and hydrogeological protection perimeters of water resources.

  1. c) Law no. 132/2012 for electricity and natural gas regulates the following limitations of the right to public property in articles 12, 14, 190, 112, 113, as follows:

– Establishing an underground, surface or aerial easement for installing power grids or other equipments related to energetic capacity and for access to their placement;

– The indemnisations and compensations granted are determined in a framework agreement, approved by Government Decision no. 135/2011 for approving the procedural rules regarding the terms and conditions concerning the duration, the content and the limitations of exercising the right to usage and easement over private properties affected by energetic capacities , the framework agreement, as well as the procedural rules in order to determine the amount of the indemisations and compensations and their payment method;

– The owners of the lands and the holders of the activities affected by the excercising of the rights to usage and the easements by the holders of licenses and authorisations, will be granted compensation for the prejudice they were caused according to article 12 paragraph 10;

– Over lands in the property of third parties located in protection and safety areas it is established a legal easement.

There is a series of particularities regarding the legal regime:

– The legal easement concerns the public utility.

– It is of three types: underground, surface, aerial.

– Its content is determined in article 14 refering to electric power, respectively article 112 regarding natural gas and covers: the right to access and enforce works at the placement of energetic capacities on the occasion of interfering for technology updates, repairments, revisions and faults;

– The right to install grids, pipelines, poles and other related equipments to the capacity as well as access to their placement for interventions, maintenance, repairments, revisions, modifications and exploitations, according to the law.

– Can be exercised with no entry in the land register during the entire existence of the electric capacity or temporary, on the occasion of technological updates of a functioning capacity, repairmen, revision, interventions in case of fault.

– The energetical activities are established and exercised with respect to the principle of equity, of the right to property and the principle of minimum interference.

– The holders of authorisations and licenses that are the beneficiaries of the easements over the state and the administrative units’ public or private property are relieved from paying taxes and other payment liabilities imposed by the national of local public administration.

– The exercising is free during the existence of the energic capacity.

– The prohibition by natural or legal persons of exercising their rights to access, use and the easements or the restraint of certain activities while performing works of technological update, repairments, revisions, interventions at fault, investments, maintenance and/or additioning new users and for deforestations is considered misdemeanour.

Consequently, with regard to these three laws as well as similar provisions in other legal acts concerning administrative easements, we must take into consideration the distinction between the ope legis nature and the exercise of the right to access or passing granted in favour of an entity authorised by the state to perform work or services of public interest. The exercise of the rights of legal nature mentioned is regulated distinctly whether the affected property belongs to the state and the administrative unit or to the individuals. However the constitutional principle of the equality of the protection given to private property no matter the holder comes to emphasize the necessity to maintain within legal limitations.

Furthermore, the Government Decision no. 135/2011[11] approved:

– the procedural rules regarding terms and conditions concerning the duration, the content and the limitations of exercising the rights of usage and easement over private properties affected by energetic capacities;

– the framework agreement;

– the procedural rules for determining the amount of indemnisations and compesations and their payment method.

However, article 3 states that such framework agreements may only be enacted after the enforcement of the Decision. They can be requested from the holders of licenses and authorisations by the land owners affected by the easement necessary for the energatical capacity achievement.

Finally, it is important to keep in mind that not only individuals are bound to bear a number of limitations of their rights in the interest of the community which is utmost important, but also utility companies which in their turn have a number of obligations to fulfill in order to favour another branch of activity of social interest or to favour the consumers of the entire quantity of production[12].

III. Practical Aspects. Relevant Case Law

  • Internal jurisprudence

By civil judgment no. 29 of January 21, 2009 [13], the Iaşi Court of Appeal emphasised in the motivation of the judgment under the provisions of the Civil Code of 1865 the doctrinal differences between easement as a right in rem and legal easement as a limitation of the use of property. Thus, the Court held that, by article 576, the Civil Code defines easement as a burden imposed on a fund for the use and utility of an immovable property having another owner and constitutes one of the characteristic limitations of the property right. It implies the existence of “two immovables” belonging to different owners. The “dominant” fund is the one in favour of which the easement is constituted, and the one in whose charge it is constituted is the easement fund. The succession of telecommunications regulations imposed a burden on landowners with regard to the installation, maintenance of transmission lines and their supports, which has as its source the agreement between the owner of the land and the operator, the provider of the telecommunication services.

Therefore, the right to access the land of a private owner is established by law and can only be exercised under the conditions set by it, and obligations are imposed on the owner of the land. However, the right has as its source the agreement between the landlord and the telecommunication services provider. Pursuant to the agreement and in the light of imperative legal requirements, the conditions of exercise shall be determined. In the absence of the agreement, the consent of the owner may be supplemented by a court order, which substitutes the agreement between the parties.

Consequently, the ownership of the transmission media, the poles in the present case, did not confer the appellant (the telecommunication company) the status of a “dominant owner”, the owner of the land, within the meaning of the provisions of the Civil Code, without which it can not constitute easement. Moreover, in the specialised doctrine, the presence of the dominant fund as an essential element of easement has been the subject of controversy over the qualification of private law burdens having as a target the promotion of a public interest [14].

In another case [15], the High Court of Cassation and Justice analysed a similar dispute between an individual and an electricity supply company, maintaining the delivery of the court of first instance finding that there had been legal easement, by foot and means of transport, free of charge, in favour of the defendant, as well as a right to free of charge use over the construction of the processing stations in favour of the defendant, ordering the applicant to allow them to be exercised within the limits necessary for the normal conduct of the activity during the existence of the energy capacities. An important element of the case was also the highlighting of the distinction between energy capacities according to the moment of their construction.

In the case resolved by the supreme court, the Ploiești Court of Appeal also rejected the claim for damages in which it was not possible to prove the existence of any prejudice. According to the court of appeal, under article 16 paragraphs (8), (9) and (10) of Law no. 13/2007 compensation may be given to the landowners in the vicinity of the energy capacity only when the license holder of the authorisation and the license executes refurbishment works, repairs, revisions, corrections of damages.

Unlike Law no. 13/2007, we notice that Law no. 123/2012 provides for wider compensation to owners affected by the exercise by the holders of the building permits and licenses in the matter. In accordance with article 12 paragraph (10), landowners and holders of activities affected by the exercise of license fees and permits shall be compensated for the damage caused to them as a result of the construction and upgrading of the energy capacities for which permits are granted and the activities and services for which licenses are given.

An action by the applicants was brought before the national courts for damages as a result of the pursuit of the easement on their land against the defendant’s refusal to grant them [16]. In the second appeal, the Craiova Court of Appeal granted the appellants who had taken all due diligence to reach a consensual agreement with the intimate that was notified for the purpose of concluding a convention. The purpose of the latter agreement was to establish the procedures, deadlines, conditions and remedies to which it was entitled under the law as a result of the exercise of the right of use and easement for the energy capacities achieved on private properties.

  • European Case Law

In the light of the jurisprudence of the European Court of Human Rights, the issue of legal easements has been the subject of European magistrates’ judgments in relation to the right to property guaranteed by article 1 of the Additional Protocol no. 1 of the Convention.

Thus, in Fredin v. Sweden [17], the right to exploit a stone quarry is considered “good” within the meaning of the Convention.

In Loizidou v. Turkey [18], the Court found that the owner’s impossibility to use a building because of state bans constitutes a deprivation of property.

The deprivation of property which is determined lato sensu by the establishing of such easements can be justified if it meets all three key requirements in the view of the Strasbourg Court: the legality of the measure, the justification of the measure by a public utility concern and the proportionality of the measure to the intended purpose [19].

As far as the legality of the measure is concerned, the interference with the property right is provided by the laws we have previously analysed in both a formal and a material sense. The laws are accessible and predictable, and with regard to the majority of the easements, the terms are sufficiently clearly stated in order for the individuals to predict the consequences that such a property limitation might bring them.

With regard to the justification of the deprivation of property for the purposes of land use, for instance, of a public utility cause, it is widely understood by the Court, considering that public utility may come from any legitimate social, economic or other policy nature [20]. For example, for the installation of electrical networks or natural gas pipelines, different works are needed, and, in principle, the cause of providing users with service can justify such a limitation of the use of land. But the existence of a public interest or utility that strikes a private asset also gives rise to a positive obligation on behalf of the states [21].

In Bugajny v. Poland [22], the Court considered that when a property is affected by a public utility by its nature, the State has the obligation to expropriate the asset by providing financial compensation to the owner of the good. Even if the interest of the collectivity is more stringent than that of an individual, in the end the collectivity is made up of people who are not obliged to bear a loss that would damage their patrimony and that boomerang effect will spread at the central level. Mutatis mutandis, the provisions also apply to administrative easements established in a series of internal laws, even if one attribute of property, more precisely the use, is infringed. But, as noticed in the Mines Law and the Petroleum Law, the exercise of the easement is granted in exchange of the payment of an annual rent to the landowners affected, while the provisions of the Law on Electricity and Gas foresee in a similar matter that the exercise is in principle free of charge for the entire duration of the energy capacity. We consider that although the nature of the law is the same and so is the legal regime, the legislator operates a distinction as to how to exercise the right. This may lead to a series of litigation in compensation. In fact, as we have seen, a number of criticisms of constitutionality have been brought to the point of amending the Energy Law in 2007, when it was established that the payment of sums of money by way of compensation could be determined by conventional means.

As far as the proportionality criterion is concerned, as we have observed, the laws set out set a number of principles under which the land to be affected is determined, the compensatory measures to be granted in the form of a rent, the setting of a maximum period to be followed the easement is exercised by those in whose favor it is constituted. In addition, the application of a contravention to prevent the exercise of the right to serve or to establish it in forbidden areas takes into account the seriousness of the committed deed, the nature of the element to which the damage was caused, namely the historical good, the margin of appreciation of the Romanian state in accordance with the requirements of Court. Finally, the state needs to balance the interests at stake.

By the decision of the Craiova Court of Appeal previously analysed, the court justified the necessity to respect the applicant’s possibility of obtaining compensation in the situation where the property was not used, and referred to two judgments of the supranational court. In Sporrong v. Sweden [23] – it was noted that the prohibition on building leads to the loss of the opportunity to sell the property under normal market conditions and that although legally the right remained intact – such restrictions significantly reduce the practical possibility to exercise it. As a consequence, the applicant’s property becomes precarious –  affected by its very substance – so that the prohibition on building becomes a special and excessive burden that only the possibility of reclaiming could legitimize.

In the case of Mellacher v. Austria [24], the Court recognised the possibility for the State to regulate the use of goods when pursuing an aim of general interest, but stated that the same need should not be forgotten in order to protect the individual interest, and that the proportionality aspect implies the award of compensation, the right to indemnification being a constituent element of the right to property.

Note: Article prepared by Ms. Maria Claudia Andrieş – student, Babeş-Bolyai University of Cluj-Napoca, Faculty of Law, within a professional practice program.

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