Abstract

According to Art. 352 of the Polish Civil Code holding of an easement is distinguished from possession of other things and rights. For that reason the character of holding an easement and potential claims of the property owner against the easement holder arouse numerous controversies both in the doctrine and in jurisdiction. In my opinion, holding of an easement should be treated as possession of a right. Per analogy to possession of things, it may also be classified as autonomous and dependent possession. Therefore, it is incorrect for the Supreme Court to treat holding of an easement equally to possession of a thing and to regard it unconditionally as dependent possession. The significance of determining the nature of holding of an easement stems from the fact that it would determine the possible relationship and any potential claims between the property owner and the easement holder, as these are dependent on the object of possession, the title to that object and the extent of possession. Furthermore, contrary to the position of the Supreme Court, supplementary claims must not be filed before the plaintiff has used the rei vindicatio claim.