The principle of s superficies solo cedit is a permanent element of civil law. It has been known at least since ancient Rome. Simplifying a little of its essence, it can be said that property is extended to what will become permanently connected with the land.
Superficies solo cedit is not an absolute rule – there are derogations from it, often dictated by the needs of business practice. one the derogations in question constitute a regulation on transmission equipment, where they are part of an undertaking, they are not part of the property components and are a separate property right.
What is on the surface falls on the ground
As already mentioned, the legal principle expressed by the Roman paramemiasuperficies solo ceditswa that what is related to the surface of the ground in such a way that it forms part of it falls to the ground, i.e. it is covered by property ownership.
It should therefore be considered reasonable to consider the perception of mobile telephone masts (towers) as transmission devices for both distance voice and data transmission.
Under the Law of 23 April 1964 – Civil Code (i.e. Journal of Laws of 2018, item 1025, hereinafter referred to as ‘KC’) the properties are parts of the earth’s surface constituting a separate property (grounds), as well as buildings permanently linked to the land or parts of such buildings (Article 46(1) KC).
The principle under discussion in Polish civil law regarding real estate is Article 48 KC, according to which, subject to the exceptions provided for in the Act, the components of the land include, in particular, buildings and other equipment permanently related to the land as well as trees and other plants since planting or planting.
With regard to moving things, the principle of superficies solo cedit is Article 191 KC, according to which property ownership extends to a movable property that has been merged with the property in such a way that it has become a component of it.
It should be added that the component of the thing is everything that cannot be detached from it without damaging or substantially altering the whole or without damaging or substantially altering the object separated, and that the component of the thing cannot be a separate object of property and other rights in kind (Article 47(1)(2) KC).
Transmission equipment, i.e. what on the surface (and not only) and not on the ground
According to Article 49(1) KCs for the supply or discharge of liquids, steam, gas, electricity and other similar equipment do not belong to property components if they are part of an undertaking. Transmission equipment shall be treated in such a case as a separate movable item and shall be the subject of ownership independently and separately from the property.
The terms ‘device’ used in that provision were not defined by the legislator, who indicated only the purpose of the device. The legislature refers to its function, i.e. to supply or discharge fluids, steam, gas or electricity. The catalogue is open and exemplary, because the legislator uses the term ‘or other similar devices’.
Although often concepts relating to technical infrastructure or equipment appear under substantive administrative law laws, the case law has the view that the definitions contained in ‘branch’ legal acts are technical terms which are not useful in civil law, in particular in the Civil Code, which must contain universal standards, and should only be of an auxiliary nature (video of the judgment of the Court of Appeal of Katowice of 21 October 2016, reference no.
V ACa 99/16). This solution therefore gives the necessary flexibility to the concept of a transmission device.
Transfer of ownership of transmission equipment
In the event of a transfer of ownership of transmission equipment, the legislator shall give priority to the contractual arrangements between the parties, while in the absence of such a transfer, the claim to acquire ownership of transmission equipment shall be updated for appropriate remuneration.
According to Article 49(2) KC person who incurred the costs of building the equipment referred to in section 1, and owns them, may demand that the entrepreneur who has attached the equipment to his network acquire their property for adequate remuneration. An entrepreneur may also request the transfer of ownership of these devices. Such claim shall be granted to the person who incurred the costs of the construction of the equipment, where the parties to the contract have not decided otherwise.
In practice, entrepreneurs often ask themselves in what form the transfer of ownership of transmission equipment should be carried out. These doubts arise both in the case of transfer of transmission equipment ownership on the basis of a claim from Article 49(2) KC, as well as under contract.
Thus, entrepreneurs reach intuitively towards the form of a particular notarial act. However, this is not necessary – since transmission equipment is treated as a separate movable item and is the subject of ownership independently and separately from the property, the standard resulting from the Article 158 KC, ordering the maintenance of the form of legal act governing the property in the form of a notarial act.
New technologies and the concept of transmission equipment
With the significant acceleration of technological progress over the turn of the last centuries, the emergence of a wireless mobile phone network, in the internet age with which countless data are transmitted, a closed transmission system directory would soon be obsolete.
It should therefore be considered reasonable to consider the perception as transmission devices of mobile telephone masts (towers) for both voice communication at a distance and data transmission. The right to own such devices may also derogate from the principle of superficies solo cedit when they are transmission equipment and, most importantly, if they are part of an enterprise.
It is also worth remembering that, in principle, transmission devices are treated as a separate moving thing and are subject to property rights independently and separately from real estate. The standard resulting from the Article 158 KC, and the transfer of ownership of a transmission device does not need to take the form of a notarial act.
Author:
Michał Skwarek - counsel application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.