Calculation of the Adverse Possession Period for a Transmission Easement: An Approving Commentary on the Decision of the Supreme Court of 24 February 2023 (III CZP 108/22, Legalis no. 2899506)

Abstract

The Supreme Court in the commented decision of 24 February 2023 (III CZP 108/22, Legalis no. 2899506) negatively assessed the existence (in the period from 1 January 1965 to 2 August 2008, i.e. before the provisions of the Civil Code regarding transmission easements came into force) of an easement “the content of which corresponds to the content of a transmission easement” and found it unacceptable to add the time of possession of such to the period of possession of the transmission easement necessary to acquire it by adverse possession. The Supreme Court formulated the above conclusions on the basis of the principle of non-retroactivity of civil law norms (Article 3 of the Civil Code). The dominant position in the jurisprudence should be considered as approving the taking into account, when calculating the period of adverse possession of a transmission easement, the time of use by an entrepreneur of another person’s property in the period before the provisions on transmission easements were added to the Civil Code. The commented decision is therefore an exception to the dominant view of the judiciary and, as such, deserves comment. The commentary approved the view expressed by the Supreme Court. Due to the fact that the legal issue formulated by the District Court in the case concerned “land easement with content corresponding to a transmission easement”, the commentary also referred to the issue of the existence of such easements in the period from 1 January 1965 to 2 August 2008 and the inclusion of their possession towards adverse possession of the transmission easement.