Abstract

In its decision of 5 December 2019 (III CZP 20/19), the Supreme Court found that questions of the Regional Court concerning the scope of the transmission easement (articles 3051 – 3054 of the Civil Code) and the way of establishing remuneration for this easement do not need any comment of the Supreme Court because they were both discussed in its judgements. According to the Supreme Court transmission easement is an affirmative easement and for this reason its spatial scope is limited to the area in which the entitled entity (transmission undertaking) acts in order to maintain and repair the device. The author does not agree with this opinion and presents arguments confirming also the negative nature of the transmission easement. According to article 3054 of the Civil Code the provisions on appurtenant easements apply accordingly to transmission easements. Appurtenant easement can be both of negative or affirmative nature and for this reason transmission easements can be constituted as negative or affirmative (or even both at the same time). The definition of this easement incorporated in article 3051 of the Civil Code is not an obstacle for such a statement. The nature of this easement depends on the technical requirements stemming from law as well as internal regulation of transmission undertakings. In consequence, the spatial scope of the easement encompass not only the area in which the transmission undertaking acts in order to maintain and repair the device (so-called transmission zone) but also the area in which the owner of the real estate – as a result of building transmission devices – cannot exercise his ownership in full (i.e. the way of building of this real estate is limited).