Graphical representation of a servitude territory: legal and practical aspects

According to research on real estate market development trends, the real estate market has been developing in Latvia over the last 5 years. The interest of the population in purchasing land in Latvia has continued to grow during the pandemic, and its demand in the land market even exceeded supply (Db.lv, 2022). The increase in transactions is observed for private house building land that has not yet been developed (Latio, 2021). Demand for apartments in new projects continues to grow steadily (Housing market trends and future, 2021). According to the information provided by AS “Attīstības finanšu institūcija Altum”, the agricultural land market also shows the trend where demand for land exceeds supply (Altum, 2021), and there is still high demand for ALTUM loans for purchasing land (AS “Attīstības finanšu institūcija Altum”, 2022). Forbes analysts recommend buying immovable properties by assessing your budget and needs, rather than as investment objects, in the hope of future real estate market development (Riquier, 2022) & (Rothstein, 2023); however, some residents buy immovable properties exactly as investment objects for the future or for the implementation of various development projects. As a result of rural and urban development, existing land areas are constantly improved, new land areas are being developed and immovable properties get divided. One of the most pressing challenges faced by owners of immovable properties – land units (already existing or to be divided) – is ensuring access to their immovable property in cases where direct access to a state or local government road (hereinafter referred to as a common use road) is not possible.

The legal system of Latvia provides for a mechanism for ensuring access to a common use road by establishing a road servitude. In accordance with Section 1231 of the Civil Law, a road servitude may be established by law, by a judgment of a court, by a contract or by a will (Civil Law, 1937). A road servitude is a material encumbrance of immovable property; therefore, the right to it is corroborated in the Land Register, as well as it is registered in the Real Estate State Cadastre Information System and is displayed on the cadastre map. One of the documents necessary for the corroboration and registration of a road servitude is the graphical representation of the road servitude, where the road servitude is depicted. However, it should be recognised that the legal status, development and content of the graphical annex are not regulated in the legislation in detail, so it involves certain difficulties both in the process of establishing and using a road servitude, sometimes delaying immovable property owners in exercising their right to property guaranteed by the Constitution of the Republic of Latvia (Constitution of the Republic of Latvia, 1922) if the owner is unable to freely access it. By mentioning the problem of access, the author wishes to emphasise that it is not possible to achieve the strategic objectives set in the highest level national planning documents, without sorting out even seemingly insignificant problems in certain legal sectors. In this respect, it is irrelevant that accessibility is developed at the level of regional and local roads because the problem of providing access to specific immovable properties remains open and may be affected by shortcomings in the legal framework for the graphical representation of a servitude territory.

On the basis of foregoing, the purpose of the study is to reflect, as a result of studying the development and practical application of the legal framework for the content and form of the graphical representation of a servitude territory, the problems and peculiarities involved to draw conclusions and to provide conceptual solutions to the problems identified.

It is important to note Paragraph 22 of the Sustainable Development Strategy of Latvia until 2030 that “Selection and use of other compatible and consistent action directions and solutions in the implementation process of the strategy is not excluded if they promote the achievement of the objectives set forward” (Sustainable Development Strategy of Latvia until 2030 (Latvia2030), 2010). Consequently, the author is convinced that solving certain problems that are not identified by Latvia 2030, but are present in practice, will contribute to the implementation of complex accessibility in the spatial development perspective in Latvia.

This study is mainly based on national laws and regulations, the most important laws being Civil Law, Land Register Law and State Immovable Property Cadastre Law. To illustrate the practical manifestation of the challenges identified by the author, the author analysed the case law, legal documents drawn up by certified surveyors and reflected and analysed real situations within the framework of the author's legal practice. It should be noted that the legal doctrine does not address the issue reviewed by the author.

This study uses the following general scientific research methods: descriptive – by studying the legal framework for the content and form of the graphical representation of a servitude territory, the practical manifestation of the development, summarising information and providing explanations based on the research and identifying problems; analytical – by investigating laws and regulations, case law, legal documents to clarify the problems related to the development of a graphical representation of a servitude territory; induction and deduction method – to express individual opinions during the study; formally dogmatic method – to critically assess the existing legal provisions governing the graphical representation of a servitude territory and to propose a solution for their further development; and modelling – by modelling possible situations that might arise due to the incomplete legal framework and situations that would have to be addressed on the basis of the proposals made.

The study also uses methods of interpretation of legal norms: grammatical – by studying the meaning and nature of the concepts “graphical representation of a servitude territory” and “graphical annex” contained in the legal provisions; systemic – by studying the legal status and peculiarities of the graphical representation of a servitude territory within the framework of the Civil Law in conjunction with the regulations in the Land Register Law and the State Immovable Property Cadastre Law; and teleological – by studying the will of the legislator, when adopting laws and regulations requiring the drawing up, submission and registration of the graphical representation of a servitude territory, to understand their social purpose.

In 2010, the Latvian Ministry of Regional Development and local governments commissioned a group of experts led by Associate Professor R. Ķīlis to draft the Sustainable Development Strategy of Latvia until 2030 (Latvia2030) (Sustainable Development Strategy of Latvia until 2030 (Latvia2030), 2010) (hereinafter referred to as Latvia 2030). This strategy was approved by the Saeima on June 10, 2010 (Communication on the approval of Sustainable Development Strategy of Latvia until 2030, 2010) and became the highest-level long-term development planning document with the force of law in Latvia.

Latvia 2030 comprises seven chapters setting out and outlining priorities, including one or more key development directions and properly defined long-term objectives. To achieve these, long-term priority action directions were identified, and possible solutions for implementing each action direction were proposed (Sustainable Development Strategy of Latvia until 2030 (Latvia 2030), 2010). Chapter 6 of Latvia 2030 focuses on spatial development perspectives, where one of the main highlights is accessibility and mobility opportunities. Paragraphs 278–307 of Latvia 2030 are devoted to improving external and internal accessibility, development directions and solutions for planning transport infrastructure, development of the road network, etc. Although the internal accessibility under Latvia 2030 is linked to the vision of development of transport infrastructure of national, regional and local significance – development of regional and local roads, it should, however, be emphasised that, within the framework of achieving accessibility, it is also necessary to also cover those cases where property owners are not provided with access to these regional and local motorways. It should be noted that there are comparatively many such properties.

In accordance with Section 56(4)(2) of the Land Register Law (Land Register Law, 1937), a road servitude or the security of this right shall be corroborated or amended in the Land Register, if a graphical representation of the servitude territory is attached to the request for corroboration. It follows from Section 60.¹(1)(4) of the State Immovable Property Cadastre Law (State Immovable Property Cadastre Law, 2005) that this graphical representation of a servitude territory is required for registration or updating of the road servitude in the Cadastre Information System and displaying the encumbrance in the cadastre map. The requirements for adding a graphical representation of a servitude territory entered into force together with the entry into force of the law “Amendments to the Land Register Law” (Amendments to the Land Register Law, 2018) and “Amendments to the State Immovable Property Cadastre Law” (Amendments to the State Immovable Property Cadastre Law, 2018) – from December 1, 2019. With the adoption of the aforementioned laws and amendments, a new term has been introduced into the laws and regulations – “graphical representation of a servitude territory”, but no definition or explanation has been given for this term. Similarly, the initial impact assessment report (annotation) of the draft law “Amendments to the Land Register Law” (Initial impact assessment report (annotation) of the draft law “Amendments to the Land Register Law”, 2018) and the initial impact assessment report (annotation) of the draft law “Amendments to the State Immovable Property Cadastre Law” (Initial impact assessment report (annotation) of the draft law “Amendments to the State Immovable Property Cadastre Law”, 2018) do not contain an explanation of the newly introduced term. Moreover, the author finds inconsistencies in the use of the term in the related laws and regulations. For example, Cabinet Regulations No. 263 of April 10, 2012 “Regulations for Registration of a Cadastre Object and Updating of Cadastre Data” (Paragraphs 107.²(1), 107.²(3) and 169.²) uses the term “graphical annex” (Cabinet Regulations No.263, 2012), which was included in the Regulations with the entry into force of Cabinet Regulations No. 572 of December 3, 2019 “Amendments to Cabinet Regulations” No. 263 of April 10, 2012 “Regulations for Registration of a Cadastre Object and Updating of Cadastre Data” (Cabinet Regulations No. 572, 2019), i.e. on December 6, 2019. Using the systematic interpretation method of legal norms, it can be concluded that the terms “graphical representation of a servitude territory” and “graphical annex” are used in laws and regulations as synonyms. On the basis of the aforementioned, the laws and regulations have deficiencies in the context of definition and use of terms, which should be rectified by amending the relevant laws and regulations. The author believes that it is essential to ensure the use of uniform terminology and clear definitions in laws and regulations so that the persons applying the regulatory enactment, including the owners of the dominant (owner of the immovable property, in whose favour or in favour of whose immovable property a road servitude is established) or servient immovable property (owner of the immovable property, on whose immovable property a road servitude is established) are not misled.

Currently, the laws and regulations in force do not determine the legal status or content of the graphical representation of a servitude territory, no specific requirements for the drawing up of the graphical representation are set and no specific subjects are specified who are entitled to develop it. At present, the following may serve as the graphical representation of a servitude territory: (1)

a land boundary plan (a legally binding immovable property document showing the borders specified for the land unit in the area and indicating the area thereof) (State Land Service, 2021);

On the basis of existing documents or when drawing up new documents, the most important thing is the accuracy of the data to be included in the documents and the correspondence to the data in the document that established the road servitude. Although the official website of the State Land Service contains “Recommendations for the preparation of a graphical annex” (State Land Service, 2021), the author believes that a detailed legal framework should be developed for the development and drawing up of the graphical representation of a servitude territory.

Through the examination of the case law and on the basis of her personal practical experience in servitude cases, providing consultations and participating in judicial proceedings, the author states that the aforementioned shortcomings in the legal framework not only delay and make it difficult to reach an agreement by mutual negotiation but also delay and complicate the course of judicial proceedings. Moreover, there are cases where, after the establishment of a road servitude, disagreements arise between the owners of the dominant and servient immovable property in the process of using the road servitude, which may lead to adjudication of the dispute in a court, for example, where the graphical representation of a servitude territory drawn up by immovable property owners themselves contains inaccurate data or unclear indications. The author proposes to look at the dispute, which had arisen between IS, the owner of the dominant immovable property, and KB, the owner of the servient immovable property, only a week after the right of the road servitude was established in the Land Register because the owners of the immovable property had contradictions regarding the physical location of the road servitude in the sketch (the graphical representation of the servitude territory) – the owners were unable to determine, which distance from the border of the immovable property the road servitude should be located because such measurements had not been shown in the sketch. One believed it to be at a distance of 15 m and the other – at a distance of 27 m. Determining the exact location of the road servitude played a key role as it affected the ability of the owner of the dominant immovable property to dig a well at the intended place. In this situation, IS, the owner of the dominant immovable property, and KB, the owner of the serving immovable property, managed to resolve the conflict through mutual negotiation, involving a lawyer and a certified surveyor (Dinsberga, 2016). However, in cases where the conflict cannot be resolved through negotiation, the parties to the dispute will have to go to court. Modelling the possible further development of the situation, the author believes that such a dispute will acquire the framework of a standard dispute regarding the establishment of a road servitude. Hence, the parties will have to submit to court a justified statement of claim, the graphical representation of the servitude and other documents, arguments for choosing the location of the servitude road, and so on.

In the follow-up study, the author will address the analysis of court case law in servitude cases to reflect the problems identified in judicial proceedings in relation to the representation of the servitude territory.

In its judgment of July 4, 2017 in case No. C09030814 SKC 229/2017, Paragraph 8.3, the Supreme Court stated that according to the plan submitted by the plaintiffs, the servitude road was marked as a curved line across the property owned by the defendant almost in the middle, with no coordinate dimensioning. Consequently, the location of the servitude road (physical location) was not precisely determined, and it was therefore not clear from that plan where the servitude would actually be used. However, in Paragraph 8.4 of the judgment, with reference to Section 1233 of the Civil Law on a road to be built in the future, the Supreme Court emphasised that the location of the road to be built must be particularly clear (judgment of the Supreme Court of the Republic of Latvia, 2017). Such a court's argument is logical and practically justified since the actual establishment of a road servitude is not the sole task of the court. It is the task of the court to render a judgment, which would be actually enforceable. The determination of the precise location of the road servitude is a guarantee that there will be no dispute between the owners of the dominant and servient immovable property as to the place, length, width and total area of actual use of the road, when the servitude is physically shown and when it is used in the future. The author gave a vivid picture of this situation before.

The Cesis District Court heard civil case No. C11091915 (Cesis District Court, 2016), in which the plaintiff requested the establishment of a 6-m-wide and 0.14-km-long servitude on a carriageway. Upon request of the plaintiff, a certified surveyor drew up a graphical representation of the servitude territory “Topographic plan with SLS cadastre borders of 10.10.2016” (hereinafter referred to as the plan), (Topographic plan, 2016), in which specific coordinate dimensioning for the servitude road that already existed, and a planned servitude road was specified. Figure 1 contains a fragment from the plan produced by a certified surveyor.

Figure 1.

The plan shown in Figure 1 with a red dotted line shows the boundary of the planned servitude road as a separate object, but X and Y mark the coordinates of the boundary location. Blue-coloured lines show the width of the planned servitude road (indicating precisely the width in metres and centimetres), which is significantly wider than the width of the physical load. When producing the plan, the certified surveyor was guided by the actual situation and depicted the planned servitude road and took into account the road that already physically existed, the actual width between the trees where the road was located, the location of the road in the meadow, the location of the road at turning points, etc. As a result, there was a contradiction between the plaintiff's request for the establishment of a road servitude of 6 m and the plan submitted by the applicant, in which the widths of the road varied between the coordinate points, ranging from 6 m 91 cm to 5 m 62 cm. The court and the defendant asked questions about the different widths of the planned servitude road at the various points of measurement, and as a result, the proceedings had been adjourned for the purpose of clarifying the plan.

When analysing the specific case, it was stated that the plan produced by the certified surveyor corresponded to the actual situation but was not valid for establishing a road servitude in the dispute in question. In the absence of a specific legal framework for the preparation of the graphical representation of a servitude territory, the certified surveyor produced the plan on the basis of his practical experience and an idea of what the plan should look like and what elements it should contain. Consequently, any certified surveyor can produce completely different graphical representations of a servitude territory, both in terms of form and content.

For example, the plaintiff Limited Liability Company “S”, submitted a statement of claim to Vidzeme District Court against the defendant “KŠ” and Limited Liability Company “CU” with Association “R” as the third party in the case in respect of the establishment of a road servitude and requested the application of a provisional remedy until the date of entry into force of the judgment in civil proceedings to prohibit the defendants “KŠ” un SIA “CU” to create any obstacles in the immovable property “R” [address], cadastre No […], preventing the plaintiff Limited Liability Company “S” from having access to the immovable properties “Ra” [address] belonging to it.

The plaintiff attached to its statement of claim Road servitude plan M 1:5000. About possibility of accessing the land unit with cadastral designation [..] [address] through the land unit with cadastral designation [..], [address] (Vidzeme District Court, 2022) (see Figure 2)

Figure 2.

When assessing the graphical representations (plans) of the servitude territory shown in Figures 1 and 2, it can be found that the wording of their names, the representation of locations of the coordinates and the locations of road width and length indicators are different. As indicated earlier, in the graphical representation of the servitude territory shown in Figure 1, the width of the planned servitude road varies from place to place, while the width of the planned servitude road shown in Figure 2 is constant throughout its length.

Files of civil case No. C33577721 of Riga District Court on establishment of a carriageway servitude contain a graphical representation of the road servitude (Sketch for the establishment of the road servitude, 2021), for the preparation of which a certified surveyor took a different approach (Figure 3) than that shown in Figures 1 and 2.

Figure 3.

The graphical representation of the servitude territory in Figure 3 shows that the road servitude territory is marked along the border of the immovable property and is coloured red. The length and width of the road servitude territory are specified, but no coordinates of the servitude road are given.

Although the road is straight throughout its length, the author believes that in its start and end sections and at the turning points (in Figure 3, it is at 90°), the coordinates of the road servitude should be provided, thereby guaranteeing the full accuracy and parameters of the road servitude location. It should be noted that the graphical annex shown in Figure 3 is referred to as a sketch, while in Figures 1 and 2, the graphical representations of the servitude territory are referred to as “plans”.

By comparing the graphical representations of the servitude territories for the establishment of the road servitude shown in Figures 1–3, it can be concluded that to prepare these graphical representations, certified surveyors used different approaches for the representation of information/data necessary for the establishment of the road servitude and for the preparation of the document.

To ensure legal certainty in the process of establishing a road servitude, the author proposes to determine the following elements of the content necessary for the graphical representation of the road servitude: (1) a graphical representation and the cadastral designation of the land unit on which the servitude road is located, (2) the length of the road servitude, (3) the width of the road servitude, (4) the total area occupied by the road servitude territory, (5) the precise location of the servitude road on the land unit, (6) coordinate dimensioning of the servitude road, (7) information regarding the source of data acquisition on the basis of which the certified surveyor has prepared the graphical representation and (8) information regarding the preparer (name, certificate number and certificate validity).

The successful use of the road servitude depends not only on the content of contractual terms but also on the accuracy of the messages/data and measurements contained in the graphical representation of the servitudes. According to the author, the currently existing procedure should be changed, that is, owners of the dominant and servient immovable property should be prohibited to prepare a graphical representation themselves. According to the author, it can be prepared by a certified surveyor who has all the information and necessary data for the preparation of a precise graphical representation of the servitude territory. It is also applicable to other currently admissible documents for the corroboration and registration of road servitude rights.

Therefore, specific documents that may form the basis for the graphical representation of the servitude territory should be listed in the laws and regulations. The author also recommends planning and implementing training of certified surveyors or developing guidelines for the procedure of development of graphical representations of the servitude territory and preparation of documentation for corroboration, registration and representation of the road servitude on the cadastre map. Currently, certification and promotion of education of surveyors (Latvian Association of Surveyors, 2022) are within the competence of the Latvian Association of Surveyors. The objective of the association is to promote technical and scientific development of surveying. As part of it, the association organises the granting of certificates in professional surveying sectors; organises and participates in seminars, conferences, congresses, discussions, meetings and open lectures; organises professional training courses; etc. (Articles of Association of the Latvian Association of Surveyors, 2011).

When preparing a graphical representation of a servitude territory, a certified surveyor shall evaluate the factual situation as a whole – the wishes of the ordering customers and possible variants of the planned location of the servitude road. It is undoubtedly true that a certified surveyor has extensive knowledge of how to perform surveying work, so that in the course of his/her professional activity, he/she would be obliged not only to prepare the graphical representation of a servitude territory in accordance with the instructions of the ordering customer but also to advise and provide explanations if, due to external factors or the specific characteristics of the land unit, the location of the servitude road has to be determined in a different location and has to contain other parameters. For example, the servitude road should be marked in another location because of the terrain of the land unit, so that there is no need to move on a steep hill or in deep lowland, or the width of the road would have to be determined at turning points because of the sharp bends of the road.

The author, in collaboration with Dr. iur. Allars Apsītis, researcher of Roman law, and other researchers, carried out a study of the legal framework of the institute of road servitude (via) in the primary sources of Roman law. With regard to the establishment of road servitudes, the primary sources contain indications that servitudes could be subject to different restrictions related to the movement on the servitude road, for example, to be used only for riding in a horse carriage, running of cattle and carrying a specific cart weight (Apsītis et al., 2021). Such provisions have not been transposed into modern Civil Law. As a result, road servitudes are sometimes formally determined without assessing or anticipating all future use needs of use of the servitude road. However, with regard to the width of the road, the primary sources contain information that the width of a servitude road according to the Law of the 12 Tables in a straight piece is eight feet, in a bend, i.e. where the road is curved – 16 (Viae latitudo ex lege duodecim tabularum in porrectum octo pedes habet, in anfractum, id est ubi flexum est, sedecim) (D 8.3.8) (Apsītis & Dinsberga, 2015). The author concludes that the theoretical basis of Roman law is based on deep practical experience and logical thinking. In particular, the ancient Romans realised that it can be difficult to drive on a curvy road, predicted widening of the road in places where the road was curvy (Apsītis & Dinsberga, 2015).

During her legal practice, the author, when examining the documentation related to road servitudes, repeatedly found that servitude roads in Latvia not only form a straight line but form a bend at an angle of even 90°, 45°, etc. In such factual circumstances, the width of the road servitude should be determined, and the graphical representation of the servitude should be depicted taking into account the ancient Roman experience. For example, if a servitude road is curvy or makes a turn at a certain angle, the width of the road at the turning point should be determined taking into account the general principles of road design and the needs of the dominant immovable property, i.e. the types of vehicles that are expected to drive on the road and their possible dimensions.

To resume, it should be noted that this study provides only a limited insight into the legal and practical aspects of the graphical representation of the servitude territory. According to the author, the topic is worth extensive and in-depth research.

As a result of the study, the author clarified the significance of the graphical representation of a servitude territory in the process of establishing a road servitude and reflected the challenges of developing the content and form of the graphical representation of a servitude territory.

One of the strategically important issues to be addressed within the framework of the Sustainable Development Strategy of Latvia until 2030 (Latvija2030) is accessibility, meaning not only the development of the state and local government road infrastructure but also ensuring access to roads from individual immovable properties.

Access from an individual property to a common use road can be ensured by establishing a road servitude. One of the inalienable elements of establishing a road servitude is the graphical representation of a servitude territory. As a result of the study, the author has drawn the following conclusions: (1)

the laws and regulations contain the concept of graphical representation of a servitude territory, but do not define it, creating an ambiguous understanding of its legal status;

Based on the problems identified in the study and the conclusions reached, the author has provided possible conceptual solutions to the problems, hoping for wider public engagement and discussion on the legal and practical aspects of the graphical representation of a servitude territory.