A land easement is a concept that consists in encumbering one property in order to increase the utility of another property. On its basis, the owner of the benefited property may use the encumbered property to a certain extent. A land easement may be acquired through an agreement, a court decision, but also by acquisitive prescription.
According to Article 292 of the Civil Code a land easement may be acquired by acquisitive prescription only if it consists in using a permanent and visible device. There are different views in the jurisdiction on how to interpret the concept of permanent and visible device.
One view is an interpretation that embraces the concept of a permanent and visible device broadly, as a permanent result of deliberate and positive human activity. This view was supported by the decision of the District Court in Gliwice dated June 6, 2019, file ref. III Ca 1517/18, according to which “the concept of a device means the result of a deliberate action, externalized in the permanent form of visible objects or mechanisms that require human labor for their creation”. Which means that, for example, a section of the power grid located above the ground is undoubtedly a permanent and visible device, because it is made by a human and is placed in such a way that it can be noticed easily. This view was also shared by the Supreme Court in its decision dated July 26, 2012, file ref. II CSK 752/11 – The court emphasized that the concept of visibility of a device must be broadly understood and based on the nature of the concept of easement, so even if the permanent device used by the entitled entity runs entirely or partially underground, it does not constitute basis for doubting whether this device should be perceived as an effect of deliberate and positive human action, as it indisputably is.
Older jurisdiction also shows a similar interpretation of the term in question. According to the judgment of the Supreme Court dated January 10, 1969, file ref. II CR 516/68, devices intended for the use of an easement of way should be considered permanent and visible within the meaning of the former Article 184 of the property law (the counterpart of which is the current Article 292 of the Civil Code), when it is the result of deliberate and positive human action, for example, when in order to adapt the ground as a road, a paved roadway or a built bridge can be seen.
It is worth noting that in the light of the discussed liberal jurisprudence, in order for a device to be considered visible, it does not have to be ground-based. In the judgment dated August 7, 2014, file ref. I ACa 438/14, the Court of Appeal in Łódź stated that since gas pipelines, water supply and sewage systems are mostly underground devices, it would be irrational to require such devices to be visible during the acquisitive prescription period for the property owner. The question arises how can the owner become aware of the existence of underground facilities on her/his land in such a situation. The judicature indicates that the visibility condition is met if, on the basis of various sources, such as maps or documents, the owner could learn about the existence of the devices, which, for example, is confirmed by the decision of the Supreme Court dated May 23, 2018, file ref. IV CSK 229/17.
However, in many cases the courts took a different position and found that for acquisitive prescription of land easement the condition for the device to be visible is met when it is a noticeable sign of actual use of the land, being a clear warning for the owner concerned. In the decision of the District Court in Łódź dated June 29, 2018, file ref. III Ca 750/18, we read that acquisitive prescription of a land easement cannot be an insidious and hidden way to acquire a right at the expense of another, but may only remove the state of long-term non-compliance with the legal status, and so the visibility of the device provided for in Article 292 of the Civil Code is to create a perceptible, noticeable sign of the actual use of someone else’s land, in a way that the person entitled to the land servitude would do. Thus, the requirement for the visibility of the device is intended as a clear warning to the owner that her/his property may be encumbered if the owner continues to tolerate the use of her/his land. According to the court, only the owner who has not used the protection she/he is entitled to for a long time, demonstrates approval of the existing facts.
In the light of the aforementioned judgments, acquisitive prescription of land easement requires the use of a permanent and visible device. Comparing court decisions from different years, one can notice a tendency to describe this expression more widely, which is favorable for the user of the device. At the early days of the Civil Code being in force, there was a conviction that the prerequisite of device visibility is met, when the device is physically visible to the public, while recent jurisprudence accepts a broad interpretation, stating that the essence of meeting the condition of device visibility is to warn the owner about the use of her/his land by a third party. It is worth noting that both above-ground and underground devices, which the owner of the property was aware of on the basis of available sources, may fulfill the condition of device visibility and thus lead to acquisitive prescription of land easement.
Sonia Dworak
Prawnik
T: +48 22 447 43 00
E: dworak@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding 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. t 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.