Ground Service Seat - the essence and the premise

As far as Polish legal order is concerned in the post-war period, ground service has already been reflected in the Decree – Law of Matter 2 (Title VI, Article 167-175 Decree) which was in force until 1 January 1965, so until the date of entry into force of the Civil Code[3].

It is worth noting that the normative shape of this institution has not changed since then, as evidenced by the fact that the provisions on ground service as such have not been amended once.

This also demonstrates their versatility and timelessness, and at the same time their considerable craftsmanship, the fruit of which survived in the unaltered shape of the law 60 years during which revolutionary systemic changes took place in Poland, including changes in the rules governing the property structure (the abolition of the principle of a single state ownership fund)[4].

The essence and content of ground service

Turning to the substantive analysis of ground service, First, it should be noted that, like personal service, use, pledge, cooperative property rights to the premises or mortgage, it is mentioned in the closed catalogue of limited rights in kind in question under Article 244(1) k.c.

The normative content of this law has been regulated under Article 285(1) k.c.

Under that provision, the property may be charged to the owner of another immovable property by law, the content of which is either that the owner of the immovable property may benefit to the extent indicated by the designated immovable property 5 , either that the property owner is limited in the ability to carry out certain activities in relation to the immovable property, or that the property owner is not permitted to exercise certain powers which he enjoys in respect of the immovable property he holds under the rules on the content and exercise of the property.

It follows from the above that the content of the ground service consists either of the obligation to abolish the interference of another person with the property right imposed, or of the obligation of the property owner not to exercise certain rights deriving from its ownership.

On the other hand , ground-handling services must not rely on the obligation to deal with the encumbered property owner .

Moreover, according to section 2 Whereas the provision in question, ground service may only be intended to increase the usefulness of the immovable property or its designated part; In the judgment dated 15 April 2021 6 The Supreme Court has clarified that when assessing the admissibility of the establishment of ground service with a specific content, it is always necessary to take into account the objective of increasing the usefulness of the property, rather than safeguarding the interests of its current owner.

In paraphrased by the conclusion of that judicature, it must be stated that ground service is a law relating to a sovereign property in the sense that it cannot be established if such an activity does not result in an actual increase in the usability of the estate, but only in the benefit of its owner.

It should be noted only on the margins that the legal consequence of this "relationship" is that ground-handling service is part of the ownership property and therefore, in connection with the content of the Article 50 k.c., ‘disaggregate fate’ of the estate (the entity entitled to perform service is each owner of the property).

Ways to acquire ground service

a. Establishment of ground service by contract

It follows from the general provisions on limited rights in rem that ground service, like any other limited right in rem, may be created (to be established) by contractual means. By Article 245(1) k.c.

the provisions on transfer of ownership shall apply to that agreement, subject to the content of the section 2 from which it follows that service may be established on condition or with a deadline and that the form of a notarial act is required solely for a declaration of the will of the owner.

In addition, ground service may be established by a judicial decision, within the succession department or by an administrative decision. An additional requirement for the effective establishment of ground service is the constitutional entry of that right in the land register, as referred to under Article 2451 k.c.

b. Acquisition of ground service by sitting

However, it should be noted that a special way of acquiring ground service is to sit down (i.e. to acquire ex lege by law) to which under Article 292 k.c., the rules on the sitting of immovable property shall apply mutatis mutandis (Article 172-176 k.c.).

It is assumed that the purpose of the sitting institution is to sanction a long-term reality which is not reflected in the area of legal relations. It would be contrary to the interests of public policy to maintain for a long time the distinction between the actual state of ownership and the formal state of ownership.

The sitting is an instrument for correcting ownership relations by giving the nature of the law to the former facts. The seat institution thus displays a right-to-do function of possession[7].

In other words, the acquisition of a right in kind (in principle of ownership, but also of ground service, including transmission service) can take the form of a long-term and uninterrupted possession which must take the form of the use of a permanent and visible device.

c. Obligation as a condition for sitting

From the very content mentioned Article 292 k.c. it follows that the basic condition for the acquisition of service by sitting is to have it.

However, unlike in the case of the holding of property, the condition for the sitting of this service is not to possess itself (actual possession like the owner – Article 336 (k.c.) and having the service in question under Article 352 k.c., i.e. the use of someone else's real estate to the extent appropriate to the content of service.

It is assumed that this possession must be characterized by constancy (persistence), which he emphasised in the judgment dated 31 January 1967[8]. The Supreme Court notes that a certain level of stability must be demonstrated by having service.

Where acts of actual performance of service are wholly devoid of that stability, being of the nature of randomness, they are not a manifestation of possession and do not lead to property protection.

d. Durability and visibility of equipment

The device that is the subject of service is to be a product of intentional human action, taking on a material form. It is considered insufficient to create a ‘device’ by failing to act, in particular the creation of a road due to failure to plant or sow in a certain area[9].

In the judgment dated 26 November 1959[10]. The Supreme Court found that a simple field road was created by the constant passing of a certain route and marked on the ground only by railways and traces of cattle driving is not the durable and visible device it speaks of.

Article 184 Rights in rem 11 , and the long-term use of which may result in the acquisition of service over the seat.

An interesting example of a “permanent” device, and hence – ground service, is the service of the window, which can be acquired by sitting on the basis of Article 292 k.c., (previously also on the can of the Indigenous Law), if the window is opened outwards, so that it reaches into space over the adjacent ground[12].

As mentioned above, the subject of service leading to its sitting must be a permanent but also visible device. In doctrine and jurisprudence, the device is assumed to be visible within the meaning of Article 292 k.c. when it is seen for every average participant in civil law.

The visible nature of the device can be found not only if the owner of the service property can see it directly, but also if it is possible to determine its existence on the basis of easily accessible data[13].

Some controversy about the visibility of the device as the grounds for sitting service came out after the introduction of a specific type of ground service in the Civil Code, which should be regarded as the service of transmission. Transmission equipment referred to frequently under Article 49(1) k.c.

(used to supply or drain liquids, steam, gas, electricity and other similar devices, e.g. electricity, heating, gas, water supply lines), are located under the surface of the ground and thus their visibility, in the common sense of the word, is at least limited.

In this respect, the Supreme Court considered that underground transmission equipment also fulfilled the condition of visibility if other readily available data clearly showed that it existed.

The device to be owned should provide a clear warning to the owner against the action of an entity which, using a transmission device located under the ground, may result in adequate ground service, and therefore each owner of the property should be able to obtain knowledge of the location of the transmission device on its property.

Consequently, it should be assumed that, in the absence of such knowledge from the next owner, the condition of visibility of the device will be fulfilled if the device has been so marked that the owner could and should have such knowledge objectively, stating the existence on the ground of the indications required by the relevant provisions for the type of underground device concerned[14].

However, in another ruling, the Supreme Court concluded that the mere marking of the devices on the relevant maps was not sufficient to demonstrate the visibility of the device, leading to a seat of service.

According to the judicature cited above, the concept that to meet the condition of the visibility of the transmission device is sufficient to ensure that there is universal access to the map containing the designation of underground transmission equipment would be contrary to both sound and purpose Article 292 k.c.

It would turn out that there can be a sit-down of ground service not only if the holder uses the visible device, but also if the owners did not seek the device in a situation where such a search was not justified by circumstances.

The absence of circumstances justifying an insight into the map showing the course of the underground transmission device causes that the device was objectively not visible to the owners of the loaded property[15].

In closing the argument concerning the existence of permanent and visible equipment on loaded property, it should be mentioned that in the case-law there was a dispute in terms of superstition whether this device should be erected by the holder of the service, or whether it is sufficient to use the device erected by the owner of the laden property.

An example can be used one of Supreme Court rulings 16 , breaking as it seems to have been the case-law line, which states that the sitting of the service is not disabled just because the device was made by the owner of the loaded property.

The literature indicates 17 , that this dispute was not decided by the Supreme Court 18 , who in the resolution advocated first from the posts mentioned.

e. The passage of time and good faith of the holder

The last of the statutory conditions for the sitting of the ground service is the passage of time, or more precisely the holding of service for a sufficient period of time.

In relation to the reference to the proper application of the property holding provisions in question under Article 292 (c) the time limits for sittings are respectively 20 years in case of good faith of the holder and 30 years in case of bad faith.

It should also be noted that in relation to the content Article 172 k.c., the holding of service for the periods indicated above must be uninterrupted.

To this end, in favour of the holder of the service operates the presumption of continuity of ownership in question under Article 340 k.c., which means that it is the owner of a loaded property,

and not the holder of the service must demonstrate in the event of a possible process that the holding of the service was not continuous.

In the doctrine of law appear two the main concepts of good faith. According to the ‘traditional’ concept, good faith is based on incorrect, but in given circumstances justified by the belief of the property holder that he is entitled to the law he has exercised.

second the concept of good faith, known as ‘liberal’, assumes that the good faith of the holder is equivalent to its belief, based on objective reasons, derived from the relationship underlying and the reason for the specific factual situation, that in exercising its right of ownership, it does not infringe anyone's law.

It seems that in the Supreme Court case-law the traditional concept finally prevailed, which is reflected, for example, by the Supreme Court resolution dated 6 December 1991 19 published on the can of a fairly common problem at the time, in which the party demanded that a sit-down of the property which had previously been the subject of informal trading (disposal on the basis of a contract concluded without retaining the form of a notarial act).

It is worth noting that the moment of relevant from the point of view of establishing the good or bad faith of the holder is the moment of taking possession of the service. The later bad faith of the holder does not affect the extension of the period necessary for the outcome of the sitting.

In the order dated 29 May 2020 20 , The Supreme Court confirmed that the assessment of good faith as a condition of sitting is based on the moment of taking possession, which is due to Article 172(1) in fine k.c.

The good faith of the holder, resulting from gaining possession in good faith, is therefore not influenced by the successor events that take place during the running of the term of sitting (mala fides superveniens non nightet).

At the same time, we should not lose sight of the presumption of good faith contained in the Polish legal order under Article 7 k.c.

Only on the margin should it be pointed out that the existence of this presumption alters the burden of proof, which has a significant impact on the procedural aspect of the judicial proceedings conducted concerning the finding of a seat of service (or proceedings in which the procedural charge of sitting is raised).

In other words, an entity which, from the fact of having a service in good faith, produces certain legal effects (e.g.

acquisition of service by sitting on time 20-year), there is no obligation to command this circumstance, on the contrary, it is on the property owner charged with demonstrating that the holder of the service, at the time of taking possession, remained in bad faith.

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