In today's edition of the article series "Tuesday Mornings for the Construction Industry," we will summarize key rulings and legal positions related to Article 49 of the Civil Code (" CC "), concerning the status of ownership and claims related to the incorporation of transmission facilities into an enterprise. According to this provision, facilities used to supply or discharge liquids, steam, gas, electricity, and other similar facilities are not considered components of real estate if they form part of an enterprise (§ 1). Furthermore, a person who incurred the costs of constructing such facilities and is their owner may demand that the entrepreneur who connected the facilities to their network acquire ownership of them for appropriate consideration, unless the parties have agreed otherwise in the agreement. An entrepreneur may also request the transfer of ownership of these facilities (§ 2).
At the outset, it should be noted that the Civil Code does not define the concept of a device or the concept of a transmission device – legal doctrine comes to the rescue here, according to which "devices referred to in Art. 49 § 1 of the Civil Code constitute a mechanism or set of mechanisms used to transmit liquids, steam, gas, and electricity. Analysis of the provision raises no doubt that the indicated devices, by their very nature, serve to perform specific economic functions. Their purpose is to supply and discharge the indicated utilities (and therefore to transmit them). In the light of Art. 49 § 1, transmission devices include, in particular, energy devices (including heating), gas devices, and water and sewage devices used to transmit utilities." – M. Balwicka-Szczyrba [in:] Civil Code. Updated Commentary, ed. A. Sylwestrzak, LEX/el. 2024, Art. 49.
At first glance, Article 49 of the Civil Code is an exception to the principle of superficies solo cedit, which states that ownership of real estate extends to movable property attached to the real estate in such a way that it becomes a component part of it. This provision addresses the issue of ownership of equipment in a general manner – the fundamental problem arises as to when and in what situations these equipment become part of the enterprise. Both legal doctrine and case law have attempted to answer this question for years, and two different approaches have emerged in these attempts.
According to the first position, ownership of a transmission facility becomes part of an enterprise at the moment it is connected to that enterprise's network. Courts have expressed their views on this matter, for example, the Supreme Court in its judgment of 6 May 2004, which explicitly stated that "Ownership of the facility referred to in Art. 49 of the Civil Code, is transferred to the enterprise at the moment of its connection to the network of this enterprise , regardless of whether the person constructing it was the owner of the land or only its perpetual usufructuary.'' (II CK 258/03), as well as representatives of the doctrine, e.g. "The above exception consists in separating such a permanently connected (component) thing, constituting a form of a device specified in Art. 49, into a separate object of ownership (and trade) at the moment of its actual entry into the enterprise (Art. 551), regardless of the legal title on which this entry (incorporation) is based. Therefore, the inclusion of the device in the enterprise determines its changed legal status '' (S. Rudnicki [in:] S. Dmowski, S. Rudnicki, Commentary..., 2011, commentary to art. 49, pt. 1).'' – P. Nazaruk [in:] Civil Code. Updated Commentary, ed. J. Ciszewski, LEX/el. 2022, Article 49).
According to the second position, the mere connection of devices to the grid by an undertaking cannot affect ownership relations. Commentators point out, among other things, that: "currently, the position that the mere connection of devices to the grid by a transmission undertaking cannot affect ownership relations should be considered well-established, and furthermore, that the transmission undertaking's network may include devices that are its property, as well as those that are owned by another entity and which the undertaking uses under a civil law title, e.g., a lease agreement (...), it should be assumed that the owner of the transmission facility is the person who financed the construction of the transmission facility ." (M. Balwicka-Szczyrba [in:] Civil Code. Commentary, ed. A. Sylwestrzak, Warsaw 2022, art. 49).
The latest court rulings also go in the same direction, indicating the need to verify who financed the costs of their construction (e.g. Judgment of the Supreme Court of November 18, 2021, V CSKP 67/21, LEX No. 3283369, Judgment of the Administrative Court in Katowice of April 25, 2013, V ACa 71/13, LEX No. 1314748, Judgment of the Supreme Court of February 11, 2016, V CNP 39/15, LEX No. 2004213).
In summary, the second position cited has become currently dominant and increasingly common – the mere connection of devices to the grid by a transmission company cannot affect ownership relations, and the entity financing their construction should be considered. Furthermore, it is pointed out that a transmission company's network may include devices owned by itself, as well as those owned by another entity and used by the company under civil law, such as a lease agreement, and those used by the company without a contract.
If you have any doubts about how to assess a specific, individual case, we encourage you to contact our law firm directly, where our lawyers are always available to advise you.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of October 8, 2024
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