In today's article, we will attempt to shed light on the issues related to entering and deleting easements from the land and mortgage register for real estate. This issue typically concerns neighborly relationships, as the vast majority of established easements are land easements, the most common of which is the right-of-way easement. However, it's also important to remember other types, such as personal easements (which are established on real estate and correspond in content to land easements, but are established for the benefit of specifically identified individuals) and transmission easements (which, in turn, are established for the benefit of transmission companies for the transmission of, for example, water, electricity, etc.).
We've written about how easements are created before ( #104 ), but as a reminder, it's worth adding that they are most often established by agreement between the parties or by adverse possession (this does not apply to personal easements). As can be seen from the above, for an easement to be created, it is not necessary to disclose it in the land and mortgage register .
Why, then, is it so important to disclose an easement in the land and mortgage register? Disclosing an easement in the land and mortgage register protects the rightholder to use the easement under the public trust of the land and mortgage register. Consequently, a potential buyer of a property encumbered with such an easement cannot plead ignorance of the easement's encumbrance in court. By disclosing the easement's content in the land and mortgage register, we can be sure that our right to use the easement will be protected regardless of the owner of the property encumbered with our easement and regardless of whether the new property owner has knowledge of the easement's existence and content.
However, even in this case there are exceptions, so it should be noted that the public credibility guarantee of land and mortgage registers does not apply to easements established on the basis of a decision of the competent state administration body, easements of a necessary route or established in connection with crossing a border when erecting a building or other facility, and transmission easements.
So how is an easement entered in the land and mortgage register? To do so, an application must be submitted to the district court – land and mortgage register division with jurisdiction over the property's location (this is not always the nearest district court). The application is submitted on a special form, the KW-Wpis (Known as a Land and Mortgage Register Entry).
An easement is entered in both the land and mortgage registers for the dominant estate and the encumbered estate. In the case of an entry in the land and mortgage register for the dominant estate, it is disclosed in section "I-Sp – List of rights related to ownership," while in the case of an encumbered estate, it is disclosed in section "III – Rights and claims" of the land and mortgage register. The application must be accompanied by appropriate attachments, in particular the basis for establishing the easement, such as an agreement, court ruling, etc., confirmation of payment of the application fee, or a power of attorney with confirmation of payment of the stamp duty for the power of attorney, if the application is submitted by an attorney-in-fact.
To produce legal effects, the easement entry must be disclosed in both land and mortgage registers. Legal effects arise only upon encumbrance in Section III of the land and mortgage register maintained for the encumbered property.
Turning to the possibility of deletion from the land and mortgage register, from a technical perspective, similar to the above, in the case of an application to delete an easement, it is necessary to complete the above-mentioned Land and Mortgage Register (KW-Wpis) form and attach the appropriate attachments mentioned above. Ideally, deletion of an easement is achieved based on a declaration by the owner/perpetual usufructuary of the dominant property, in which they consent to the deletion of the easement from the land and mortgage register. In this way, the easement holder voluntarily waives their right.
Other circumstances in which an easement may be deleted include the expiration of the term for which it was established or, in the case of a personal easement, the death of the beneficial owner. In such cases, it is sufficient to invoke these circumstances in court – unfortunately, the court does not delete the easement entry ex officio. However, if the beneficial owner lacks the consent of the beneficial owner, the owner of the encumbered property may seek the termination of the easement in court, for example, by invoking its expiration due to non-exercise of 10 years (Article 293 §1 of the Civil Code).
In our practice, we receive numerous questions from clients about how to delete easements that no longer apply to their specific property. This most often happens when the easements were established many years ago, then subdivided, and the current plot is no longer subject to the easement. However, because the easement is entered in the new land and mortgage register ex officio, it appears in our register. In such situations, courts have sometimes deleted such an entry upon request, with a detailed justification explaining why the easement does not apply to our specific plot. Unfortunately, many courts take the position that such cases require reconciliation of the land and mortgage register with the actual legal status, based on Article 10 of the Land and Mortgage Register Act. Therefore, this is not a hopeless situation, but it does require the initiation and conduct of court proceedings, which unfortunately prolongs the deletion process, but can be successfully completed.
Going further, it's important that the documents confirming our right to establish or delete an easement be attached to the land and mortgage register application in their original form. It's also important to remember the format, as it must be a document with a notarized signature, a notarial deed, a final decision, a final court judgment, or another document officially confirming the event (e.g., a death certificate).
Pursuant to the Act of 28 July 2005 on Court Fees in Civil Cases, the fee for entering an easement in the land and mortgage register is PLN 200, and for deletion, half of that amount, i.e. PLN 100. The waiting time for entry or deletion of an easement can range from a few days to several months. The processing time for such an application depends on the workload of the relevant land and mortgage register court. Therefore, in larger cities, the deadlines will be significantly longer than in smaller towns.
In summary, it's worth remembering that it's in the interest of the easement holder to submit an application and ensure that the land and mortgage register court correctly records the application for the established easement (in both registers). In turn, it's the owner of the encumbered property who should ensure that, if the easement expires, they submit an application to have it deleted – an orderly land and mortgage register undoubtedly facilitates the potential sale of the property.
We would also like to remind you that the new Development Act comes into force on July 1, 2022. We cordially invite you to read our articles, in which we outlined the most important changes. We are continuing to provide training in this area, and on June 30, we will be training you in conjunction with the Polish Association of Developers, and on July 6, you can join an online training course organized by Rzeczpospolita (details available by clicking on the graphic below).
Of course, for individual matters, including advice on preparing a development agreement template under the new rules, we encourage you to contact attorney Michał Rutkowski or attorney-at-law Michał Kijewski directly.
In the next article, we will characterize personal servitudes as a special type of servitude, giving additional rights to a specific person.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of June 20, 2022
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