Pursuant to Article 2a of the Act on Public Roads of
21 March 1985 (Journal of Laws of 2007 no. 19 item
115, consolidated text, as subsequently amended)
national roads are owned by the State Treasury and
regional roads, county roads, and municipal roads
are owned by the respective regional, county, or
municipality local government. Despite the above
regulation, for many years it was not at all
uncommon in day-to-day legal dealings for a public
road to have been built on third-party properties. The
above situation resulted in a de facto expropriation
of such property, as its owners were unable to
dispose of their ownership right. In the light of the
above, legislators decided to remedy the resulting
discrepancy between the factual and legal status of
such properties by passing the Act on Regulations
Enacting Statutes Reforming Public Administration
of 13 October 1998 (Journal of Laws of 1998 no.
133 item 872, as subsequently amended) (“Act”).
Pursuant to Article 73(1) of the Act, any real
properties which as at 31 December 1998 were in possession of the State Treasury or local government
units and were not owned by them, occupied by
public roads, as of 1 January 1999 became by
operation of the law the property of the State
Treasury or the respective local government units
against compensation. While under these
arrangements the State Treasury or local government
units were to acquire legal titles to real properties
occupied by public roads, the regulations did not
solve all the problems involved in clarifying the
legal status of the real properties in question. In the
cases, combined for joint proceedings, which were
determined by the Supreme Court under its ruling of
17 May 2012, Case File No. I CSK 408/11, a local
government unit and the State Treasury applied for
acquisitive prescription of road properties with an
irregular legal status. While no act had been issued
with respect to the properties subject to the court
proceedings that would confer upon them the public
road status, they had been used for these purposes.
The applicants argued that the roads at issue had
been administered by them, thus demonstrating that
the applicants had been independent possessors of
the real properties in question. Ruling on the case
before it, the Supreme Court held that a real property
used for years as a public road cannot be subject to
independent possession leading to its acquisitive
prescription by a third party. In the Supreme Court’s
opinion, the actions outlined by the applicants
relating to the administration of the real properties
subject to the proceedings constituted state control
and so were exercised in the public interest.
However, within the meaning of Article 336 of the
Civil Code in conjunction with Article 172 of the
Civil Code another type of control over a thing
provides the grounds for acquisitive prescription,
namely the intent to hold it. Consequently, the
Supreme Court held that the possession of the road
properties in the manner exercised by the applicants
could not lead to acquisitive prescription of the real
properties subject to the court proceedings.
The opinion of the Supreme Court outlined above
can hinder clarifying the legal status of real
properties occupied by roads. As it happens, there
are real properties which have not become the
ownership of the State Treasury or a local government unit under Article 73 of the Act as they
did not meet the conditions laid down under the
regulation (e.g. the relevant road had not been
formally included in the public road category).
It seems that the above ruling of the Supreme Court
of 17 May 2012 will prevent sorting out legal status
of these real properties from being regulated by
acquisitive prescription.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of
action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser
should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.