Plot owners need to know this. These are the consequences of the latest judgment of the Constitutional Tribunal

The decision of the Constitutional Tribunal touches on the mechanism that for years has organized, and often masked, the lack of legal title to use other people's real estate for transmission networks. To put it simply The Constitutional Tribunal questioned current court practicewhich allowed transmission companies to acquire, by adverse possession, a land easement “with content corresponding to the transmission easement”. He challenged such a law for the period before August 3, 2008, i.e. before the provisions of Art. 305¹–305⁴ of the Civil Code.

What did the Constitutional Tribunal question in practice?

The starting point were legal questions from district courts. They asked whether such an understanding of Art. 292 of the Civil Code in connection with Art. 285 § 1-2 of the Civil Code, which allowed for adverse possession, even before 2008, of an encumbrance corresponding to the content of today's transmission easement. The Constitutional Tribunal's response was negative. The Tribunal linked this practice with a violation of the standard of property protection and the principle of citizen trust in the state and the law. To put it simply, limiting the right of ownership to such a profound extent cannot be the result of a creative interpretation if the legislator has not provided for it expressly in the act.

The oral reasons for the decision included a strong theme that had so far been marginalized in transmission disputes. The Constitutional Tribunal pointed out that property law is not an area of ​​discretion. There is a closed catalog of property rights, and the court should not “add” a new type of encumbrance just because it would be convenient. In other words, if the legislator only from 2008 created a tool directly adapted to the transmission infrastructure, the earlier periods cannot be supplemented with a substitute structure with equally far-reaching consequences for the owner.

The Tribunal also clearly signals that “retroactive prescription”, in this variant, violates the principle of proportionality. On the one hand, we have a public interest in maintaining the infrastructure, and on the other, there is an individual who, without compensation, loses part of the control over his or her property, often for generations. This shift of the burden to the citizen was deemed unacceptable under the Constitution.

Dissenting voices appeared in the Constitutional Tribunal

Dissenting opinions were submitted by judges Wojciech Sych and Rafał Wojciechowski. They pointed out that the Constitutional Tribunal should not resolve this issue because in practice it assumed the role of unifying the line of jurisprudence that belonged to the Supreme Court.

They also emphasized that there was no single, established interpretation in common courts, because judgments were not always made in favor of enterprises, so it could not be assumed that we were dealing with a uniform and established understanding of the regulations.

What does the judgment change in cases that are already pending?

In many cases, the defense of enterprises was based on a simple scheme of adverse possession of an easement. After the Constitutional Tribunal's judgment, this argument is no longer a safe highway. The argument will shift from the question “are you incumbent?” to three questions that are more inconvenient for transmission companies, but also more honest. These questions are:

1. What is the legal title to use the land?”
2. Is it possible (and under what conditions) to establish a transmission easement for a fee?
3. How to settle the current use of real estate in the absence of a contract?

However, this does not mean automatic wins for owners. In practice, companies will verify other bases, such as the content of old location and expropriation decisions.investment documentation, legal succession after state entities, contracts concluded in the past, entries in land and mortgage registers, and sometimes also special regimes regarding public property. Each case will therefore require a detailed analysis and an individual approach. The difference is that a simple thesis about adverse possession will not end the conversation on the first page of the justification.

Owner claims: more arguments, but fewer certainties

Numbers reaching into the billions are already appearing in the public space. The judgment may indeed increase the claim potential, but not because it opens a bottomless bag. Rather because restores an element of balance in the dispute – using someone else's property for many years without a contract should not be legalized as standardand in a way that the owner could not have predicted by reading the regulations. The practical effect is to strengthen the negotiating position in talks on the establishment of a transmission easement and remuneration for use, especially where the infrastructure was built without an agreement and without a decision directly interfering with the content of ownership.

Greater chance of a settlement

It cannot be said that this is a decision about the amount of benefits and the methods of calculating them. However, a judgment may make it so some enterprises will be more willing to enter into settlement negotiationsknowing that the current argument of adverse possession from before 2008 no longer provides the same level of procedural security.

Transmission companies and the State Treasury, which for years have based their practice on the jurisprudence of the Supreme Court developed since the resolution of 2003 (III CZP 79/02) and subsequent decisions allowing adverse possession of an “easement corresponding to transmission”, must reassess the risks and consider a new procedural strategy.

At the same time, we cannot lose sight of the economic aspect. In regulated sectors, i.e. energy, heating, waterworks, expenses for settling legal titles and paying remuneration for transmission easements may, in the longer term, affect tariffs and, therefore, indirectly affect recipients' bills. This explains why the first comments regarding the judgment raised questions about the potential impact of the judgment on energy, water and heat prices.

Resumption of legally concluded cases, what are the possibilities?

A natural question is: what about people who have already lost their case because the court found adverse possession of such a quasi-easement? The civil procedure provides for a complaint to reopen the proceedings in a situation where the Constitutional Tribunal finds the legal basis of the decision to be unconstitutional in accordance with Art. 401¹ of the Code of Civil Procedure. However, timing will be key. In practice what is decisive is the observance of the three-month deadline counted from the entry into force of the Constitutional Tribunal's judgment and limitations resulting from the passage of time from the finality of the judgment in a civil case. For this reason, the judgment is most important for relatively recent disputes, and in many cases from several years ago, resumption may in practice be unavailable.

Publication and the risk of “suspension”

In the background there is also a question about the publication of the judgment and the practical significance of the moment from which the deadlines run. Theoretically, the Constitution stipulates that the Constitutional Tribunal's judgments enter into force on the day of their announcement. In recent years, however, political and judicial practice has begun to change this obviousness.

The Constitutional Tribunal itself sometimes claimed that the publication was only of a technical nature, while some authorities and courts consistently associated the entry into force with formal publication. For litigants, this determines whether and when you can file a motion to reopen and how you plan your strategy. The longer the uncertainty lasts, the worse it will be for owners who do not know whether they can reopen their cases, as well as for enterprises that are unable to estimate the scale of the risk, and even for the justice system, which would once again have to resolve a dispute over the effects of unpublished Constitutional Tribunal judgments. Instead of deciding on the merits of the dispute, it is transferred to the level of disputes about formal consequences.

What steps should you take now?

Owners should start by determining the details: the route of the network, the date of installation of devices, verifying the land and mortgage register, collecting all contracts and decisions (if any), as well as checking whether adverse possession proceedings were conducted and with what results. Only on the basis of such material can one reasonably decide whether a settlement, an application for the establishment of a transmission easement, a claim for settlement of non-contractual use, or, in certain cases, a complaint for renewal is better.

However, transmission companies should assume that the current adverse possession model is no longer predictable. Where there is no title, it may be rational to quickly sort out the legal status and build settlement programs – especially if the alternative is long-term disputes, legal costs and the need to create reserves.

What will the courts pay attention to now?

In current affairs, we can expect greater discipline in examining the legal basis and evidence. Instead of the shortcut in the form of adverse possession from before 2008, it will be more often analyzed what is the real scope of interference with the property, whether there was any modernization or change in the route of the network, as well as whether and when the owner opposed the use. Maps, situational sketches, work acceptance reports, geodetic documentation and evidence of the parties' contacts, such as summons, letters and contract proposals, will become more important. In practice, a dispute will increasingly look like a settlement of a specific, long-term use of landand not as the argument of adverse possession as a basis for dismissing claims.

One thing is certain. We are starting a new chapter

The judgment of the Constitutional Tribunal P 10/16 rather opens a new stage in which critical infrastructure must be reconciled with a strict standard of property protection. And this means one thing: the transmission infrastructure on the plot is no longer just a nuisance. It becomes a meeting point between the constitution, investment history and very specific financial claims.

Authors: Aleksandra Grabarska, legal advisor, partner at the KBiW Kurpiejewski Budzewski i Wspólnicy law firm, Dominika Gozdalska, associate legal advisor at the KBiW Kurpiejewski Budzewski i Wspólnicy law firm