As previously announced, we are returning to our series on easements in Polish law, and this week we want to explore issues related to personal easements. As we have already indicated, easements (Latin: servitus ) are limited property rights, and pursuant to Article 296 of the Civil Code, real estate may be encumbered in favor of a designated individual with a right whose content corresponds to that of a land easement – a personal easement.
This allows for the encumbrance of real estate that is closely related to the entitled person, but in its content corresponds to a land easement. The provisions on land easements apply accordingly to personal easements, subject to the provisions of Chapter II of the Civil Code.
A personal easement, unlike a land easement, is established for the benefit of a designated individual, and its primary function is to satisfy the personal needs of the entitled person. This function of a personal easement is unrelated to another property.
The Supreme Court pointed out the key differences between these two easements in its resolution of 16 July 1980 (ref. III CZP 45/80), i.e.: "a personal easement differs from a land easement primarily in that it is granted to a designated natural person and is intended to meet his or her needs, while a land easement is a right related to the dominant estate and constitutes its component part (Articles 50 and 47 of the Civil Code) (...)"
Due to their function and personal nature, personal servitudes are inalienable rights established in favour of natural persons, expiring at the latest upon the death of the entitled person, and they cannot be acquired by adverse possession .
Pursuant to Article 298 of the Civil Code, the scope of personal servitude and the manner of its exercise are determined, in the absence of other data, according to the personal needs of the entitled person, taking into account the principles of social coexistence and local customs, therefore this right is of a maintenance nature.
There is one exception to the principle of limiting the scope of entities entitled to personal easements, provided by Article 146 of the Civil Code: a personal easement of a necessary way . Article 146 is a special provision, and thus it is possible to establish personal easements of a necessary way for the benefit of civil law entities other than natural persons. Importantly, a personal easement of a necessary way will always serve economic purposes , unlike a personal easement per se, which, according to the legislator's intention, is intended to serve the personal needs of the entitled person, regardless of their nature.
A residential easement has a special character, as it can also be used by other people – relatives and household members of the beneficiary. A personal easement may also form part of a life annuity contract or constitute the content of a life annuity right (Article 908 § 2 of the Civil Code).
Similarly to other easements, the source of a personal easement may be a legal act (e.g. a contract; a vindication clause being a unilateral legal act) or another legal event (e.g. a court ruling or an administrative decision issued in expropriation proceedings).
Importantly, to establish a personal easement, the form of a notarial deed is required only for the declaration of the owner establishing the right. In turn, under Article 245 § 2 of the Civil Code, a personal easement may be established subject to a condition or a time limit, as the provisions on the inadmissibility of conditions or time limits do not apply to it.
The establishment of a personal easement may be either paid or gratuitous.
It should be remembered that personal easements, as limited property rights, may be entered in the land and mortgage register, even though there is no legal obligation to do so (e.g., a residential easement). Entering an easement in the land and mortgage register, despite its declaratory nature, has significant practical significance. It is covered by the public credibility guarantee of the land and mortgage register (as discussed in Article #107 ) and it is in the interest of the entitled party to disclose this right in the register.
To sum up, personal easements may be of significant importance in legal transactions, and their verification as to their existence and scope may be crucial when purchasing real estate.
In the next article, we would like to introduce you to issues related to land easements.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 11, 2022
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