Imagine the situation: a man lives a quiet life in a small village, renting his land for agricultural crops, but suddenly somebody comes and says: give me this land plot, I'm here to look for the gas! And this "someone" is a big company.
Unfortunately, it's not a hypothetical, but absolutely real story that happened to a resident of Kharkiv. However, the EXPO-Pivnich Energy Service Company Ltd. does not take land from Mykola the farmer, but tries to force him to easement... that is valid for 10 years.
The company owns a special permission for subsoil use of structures of Rohan promising area No. 5395 dated by 14.10.2011, according to which it is granted the right for geological study, including experimental and industrial development-production of hydrocarbons (oil and gas) within Rohan promising areas on the territory of Kharkiv and Chuhuiv districts of Kharkiv region for a period of 20 years.
It happened so that one of points planned under the drilling of the well was exactly Mykola’s land with a total area of 2.5 hectares, the land user of which is the Chuhuiv agricultural firm.
According to representatives of EXPO-Pivnich they "repeatedly, both orally and in written form, addressed a proposal to the owner and a third party with a request to solve a question on granting authorization to engage in his area of agricultural land (arable land) for the construction of Rohan well No 3". Being refused they offered Mykola to conclude the contract on the personal land easement. And even promised to pay for the use of the easement in the amount of 100% of the amount of land tax.
So, the farmer had "a great prospect" of losing for 10 years of the fertile land and rental income that it brings, with great risk of total devastation of footage due to the search and mining, receiving just the payment of the land tax. Of course, the greedy company was refused.
Therefore, Mykola addressed Chuhuiv human rights group. Given the complexity and importance of the case, the Chairman of ChHRG Roman Lykhachev decided to represent the farmer’s interests in court.
At the hearing the human rights defender stressed that the requirements of the company does not comply with article 99 of the Land Code of Ukraine, whose provisions set out the grounds on which one can appeal for the easement.
In addition, in accordance with the provisions of article 98 of the Land Code of Ukraine, the initiator of the establishment of land servitude can only be the owner or land user, which requires the use of the adjacent (nearby) land to repair the shortcomings of his plot, due to location or natural state. And the plaintiff is neither the owner nor the user of any land adjacent to the land of the defendant.
One of the mandatory requirements for the establishment of land servitude is that servitude corresponds to the intended purpose of the land in respect of which it is established. Mykola’s land refers to the agricultural land (arable land) used for growing crops, that is, the drilling of the well is completely contrary to the intended purpose of this land.
Since the current legislation does not oblige the land owner to enter into a contract with enterprises, institutions and organizations engaged in geological survey, prospecting, geodetic and other prospecting work, it is possible to conclude that the parties are free in these matters, that is, to get the person in court is impossible.
As noted by Roman Lykhachev, EXPO-Pivnich did not provide evidence that the proposed by the company point for drilling the well is an exceptional way to meet the needs of the plaintiff, and that there are no other ways to meet those needs, for example, the drilling of this well at the different point.
In addition, the plaintiff defined the point drilling the well with the imposition of servitude on the ENTIRE land plot area – 2.5 ha. However, the establishment of such easement absolutely denies the farmer’s right to use the private land. According to article 41 of the Constitution, no one may be unlawfully deprived of property rights, the right to private property is inviolable.
It is interesting that the representative of a third party – the State Service of Geodesy, Cartography and Cadastre in the Kharkiv region – also requested to refuse the claim because the plaintiff failed to substantiate the area and boundaries of the land of the defendant to establish the easement.
Chuhuiv city court of the Kharkiv region, after hearing the arguments of the parties, by its decision of May 26 2016 refused satisfaction of the claim of EXPO-Pivnich against Mykola.
*Names are changed for ethical reasons
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