Abstract

The article focuses on one of the preconditions for usucaption of a transmission easement in the Polish civil law, i.e. visibility of transmission facilities located underground. Due to the fact that currently the status of many of such underground facilities, such as gas pipelines or water and sewage systems, has not been yet regulated by law and transmission operators use them without any contracts signed with property owners – the subject of the article is topical and may be helpful in court cases regarding establishment of a transmission easement or compensation for non-contractual use of real property.

Transmission easement is a right comparable to real easement (according to certain representatives of legal doctrine – it is actually described as a type of real easement) and, therefore, the authors of the article based their discussion on the analysis of jurisdiction in real easement cases. In accordance with the position of the judicature the precondition of visibility of the facilities in real easement cases should be practically understood in line with the colloquial meaning of this term. The owner of a property to be encumbered with such easement should have the possibility to establish not only the fact that the owner of a neighboring estate uses his property, but also the extent of such use. Such a possibility exists only when such use is based on permanent facilities which are visible to the naked eye of any average observer.

However, the analysis of jurisdiction in cases regarding transmission easements leads to a surprising conclusion that in such cases transmission facilities do not have to be actually visible to the property owner to allow for usucaption. In some cases, it is sufficient if the existence of such underground facilities is indicated by a single marking post and, moreover, the post does not even have to be situated within the borders of the servient property but may be located at a considerable distance therefrom. Therefore, jurisdiction totally disregards the requirement that the full course of the underground facilities, including their size and location, be known to the owner of the servient property. Meanwhile, if this basic data is unavailable, the owner of the servient property is unable to make an informed decision whether to tolerate the use of their property by the transmission operator and take a risk of a having it encumbered with a transmission easement by usucaption or rather take legal steps to prevent such an outcome.

In the authors’ opinion, such a discrepancy in the interpretation of the visibility precondition in cases regarding transmission and real easements does not have any rational justification and therefore seems to be discriminatory for the owners of properties which are to be encumbered with transmission easement.