Partial waiver of a limited property right – commentary on the decision of the Supreme Court of 22 June 2023, II CSKP 1273/22

Abstract

The commented decision of the Supreme Court concerns the issue of a partial waiver of a limited property right, a matter that has not previously been addressed separately in the case law. In this ruling, the Supreme Court formulated a thesis excluding the possibility of such a partial waiver of a limited property right, both in terms of its subject matter and content. The Court also stated that a declaration of will to waive an easement results in the expiration of that right if it includes all co-beneficiaries. The considerations, based on Art. 246 and 285 of the Act of 23 April 1964 – Civil Code, indicate that the position adopted by the Supreme Court deserves approval, with the caveat that it seems permissible to reduce the subject of a joint limited property right through a unilateral legal act by the entitled party. The commentary also highlights that waiving an easement that increases the utility of the entire or a designated part of a property held in co-ownership requires adherence to the rules of management applicable to the dominant property.