Plot owners versus transmission companies. The Constitutional Tribunal will resolve a dispute over poles worth millions of zlotys

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Inconvenience for plot owners

The presence of transmission equipment on the property limits the possibility of its full use, as the owner is deprived of many rights, including the right to develop or carry out construction works.

In the realities of a free market economy, it is particularly clear that transmission companies often did not respect property rights. Not only could owners not freely use their property, but it often lost value and became difficult to sell. The practice went even further: there were cases when the owner suddenly found a team on his plot carrying out modernization work on the transmission device, without notice or consent.. This is a gross violation of the constitutional guarantees of property rights. The scale of the problem is huge, because millions of properties in Poland operate without adequate legal protection.

From the perspective of the owner and his right to compensation, it does not matter whether the infrastructure was built recently or three decades ago. The effects on property rights remain the same.

See also: What is easement and should we be afraid of it? Here's what you need to know before purchasing real estate

It is better to have a new rather than an old transmission line on the plot

However, judicial practice in this area remains non-uniform, which leads to significant disproportions in case law. In the case of newly built infrastructure, there is no doubt that the property owner is entitled to compensation for its installation. However, cases involving devices that have been in existence for several decades are treated differently. In such cases, entrepreneurs often refuse to pay compensation, and courts often agree with their position.

The source of the problem can be traced back to 2008, when tailor-made regulations were introduced to regulate legal relations related to transmission infrastructure. Then the concept was introduced into the Civil Code “transmission easements”, i.e. the right of transmission companies (energy, gas, etc.) to use someone else's land in order to run and maintain infrastructure. However, appropriate transitional provisions were forgotten. This legislative shortcoming has led to serious inequality before the law. When the new regulations came into force, most of the transmission facilities had already existed for many years, and property owners largely did not receive any compensation for their installation.

The jurisprudence of the Supreme Court formed the view that even before August 3, 2008, it was possible to acquire by adverse possession a land easement corresponding in content to a transmission easement.first to the State Treasury (until February 1, 1989), and then to the transmission entrepreneur.

Adverse possession means that the enterprise has no obligation to pay. Paradoxically, the court's practice, which unjustifiably favors entrepreneurs, stems from the lack of appropriate regulations before 2008. Nevertheless, the Supreme Court found it admissible and consistent with the principles of civil law, confirming the possibility of consolidating such a solution in the case law.

Is there a violation of constitutional rights?

The concept of “land easement with content corresponding to a transmission easement” is a jurisprudence, not a statutory creation. From the perspective of the property owner, this construction violates a number of basic civil rights and the principles of civil law.

First of all, the lack of a statutory basis for limiting ownership is highlighted. The Supreme Court removed a loophole that the legislator had not consciously removed, and thus limited the right to property.

In addition In fact, the Supreme Court created a new limited property right (land easement “with transmission content”) and allowed its possession during the period when there was no transmission easement in the system.. This violates the basic principles of the rule of law, in particular the catalog of limited property rights and the division of roles between the legislator and the courts.

It should be noted that:that the property owners could not have predicted within a reasonable time that the Supreme Court would adopt the concept of adverse possession of an easement, which did not exist as a legal type at that time. And as a result, the loss of part of the power takes place in a surprising way, with a retroactive effect.

This is not the first such dispute in the Constitutional Tribunal

It is not the first time that the Constitutional Tribunal has approached the issue of land easement with content corresponding to a transmission easement. However, the property owners did not receive a substantive decision.

For example, in the case no. file P 28/13, regarding the legal basis for adverse possession of such an easement, the Tribunal discontinued the proceedings due to the inadmissibility of issuing a judgment. He pointed out that the legal question was actually aimed at challenging the established jurisprudence of the Supreme Court, and not at questioning the content of the provisions of the Civil Code itself. The case with ref. no. ended similarly. file P 7/17.

The same pattern was repeated in cases initiated on the basis of constitutional complaints, an example of which is the decision of October 18, 2023, case no. Act SK 86/19.

The latest case in the Constitutional Tribunal may be of great importance

Although previous cases brought to the Constitutional Tribunal did not bring any real decisions to property owners, this time the situation may be different.

The importance of the case is demonstrated by the very fact that it will be heard by the full bench, which usually signals the intention to make a substantive decision.

Secondly, the legal question was formulated by the court much more precisely than in previous proceedings. It is passed in a way that actually makes it possible to review the constitutionality of the questioned norm. All this indicates that this time there are no formal obstacles that previously led to discontinuances, so there is a good chance that the Court will issue a judgment in the case.

Thirdly In 2016, the Ombudsman stated in his position on the case that the current practice violates the Constitution and further favoring of transmission companies is unjustified. I share the arguments presented by the Commissioner for Human Rights, because these entities had effective legal means at their disposal allowing them to legally gain access to other people's land for the purposes of operating their infrastructure. The burden should not be placed on the citizen that transmission companies failed to exercise due diligence.

What may be the consequences of the Constitutional Tribunal's judgment?

If the Constitutional Tribunal issues a judgment favorable to citizens, transmission entrepreneurs would lose the opportunity to acquire easements “for free” through adverse possession.

From the constitutional point of view, this would mean a return to the principle that property may be limited only on the basis of a statute and with just compensation. The way would open up for property owners to pursue claims for remuneration for the non-contractual use of their land, as well as for remuneration for the establishment of a transmission easement.

The owner's claims may amount to several hundred thousand zlotys. Their amount is influenced by the type of transmission device, the scope of interference (i.e. easement strip), the value of the property and the degree of demarcation.

Authors: Agnieszka Ryznar, president of the management board of Votum Odszkodowania, Bartosz Bański, legal advisor from the Łebki, Madej i Wspólnicy Law Firm of Advocates and Legal Advisors