Legal consequences and problems of the servitudes of right of way established by administrative acts in Latvia

Abstract

The right to own a property is guaranteed by the Article 105 of the Constitution of the Republic of Latvia that in the same time stipulates that the said rights may be restricted only in accordance with law. This legitimate property right restriction is determined in Article 928 of the Civil Law: the ownership may be restricted both by private intent and by law. One of the restrictions of ownership rights is the servitude of right of way which is established by law, a contract, a court judgement, or a will. During the land reform, the State Forest Service, land commissions, and municipalities had the legal basis to establish the servitude of right of way also by an administrative act, taking a corresponding decision. However, many decisions were insufficient and legally incorrect. As a result, today the servitudes of right of way established by the administrative acts during the period of the land reform do not fulfil their purpose and cause a number of legal and practical problems both to owners of immovable property and to state institutions. In order to explore these problems, referring to the Article 7 of the Paragraph 105 of the protocol resolution No.56 of the Cabinet of Ministers from 29 October 2013, the Ministry of Environmental Protection and Regional Development in cooperation with the Ministry of Transport, the Ministry of Justice, and the Ministry of Agriculture issued the Conceptual Report “On the Problems Occurring in Relation with the Servitudes of Right of Way Established during the Land Reform and Their Possible Solutions” (hereinafter – the Conceptual Report). In general there are 2 possible solutions, but for the second solution there are five courses of action, one of which – in cases when there is a road on private property that is needed for public use it is to be determined as an encumbrance of the immovable property “Public road”. The aim of the research is by analysis of the problems of the servitudes of right of way, established by the administrative acts during the period of the land reform, to evaluate whether the solutions offered in the Conceptual Report are practically applicable and will give the desired result, as well as to offer the author’s vision for solution of the existing problems. The author has used the scientific research approaches – descriptive, analytical, inductive and deductive, logical-constructive, formal-dogmatic, graphical and interpretation of legal norms – grammatical, systemic, and teleological.