What is a transmission easement?
A transmission easement is a limited real right which was introduced into civil law in 2008 to regulate the legal status relating to the siting and operation of transmission equipment on land belonging to different owners. This institution responds to the practical necessity of routing transmission networks, installations and infrastructure equipment across other people’s land, without which the functioning of a modern economy would be impossible. In simple terms, a transmission easement involves granting an operator the right to install and maintain transmission equipment in its existing location, as well as the right of access to it to the extent necessary for its operation, maintenance, modernisation and fault repair, whilst restricting the property rights of the encumbered property only to the extent necessary to achieve these objectives.
Methods of establishing transmission easements and the role of the property owner’s consent
The primary and most desirable method of establishing a transmission easement is by means of an agreement concluded between the transmission operator and the property owner. This procedure is based on the principle of party autonomy and allows for flexible structuring of the easement’s terms, particularly regarding the route of the equipment, the width of the easement strip, the scope of the operator’s rights, and the amount of remuneration due. The property owner’s consent is of key importance in this case, as it forms the basis for the voluntary restriction of ownership rights. An agreement to establish a transmission easement is a binding and dispositive act, and for it to be valid, the owner’s declaration must take the form of a notarial deed. In the case of joint ownership of the property, it is necessary to obtain the consent of all co-owners, as the establishment of a transmission easement constitutes an act exceeding the scope of ordinary management.
If the parties cannot reach an agreement, the legislator has provided for the possibility of establishing a transmission easement by way of a court ruling. An application may be made both by a transmission operator who cannot obtain the owner’s consent and by the owner of the property on which transmission equipment already exists and is being used without legal title. Under this procedure, the owner’s consent is replaced by a court ruling, which determines the scope of the easement and the amount of appropriate compensation. The court, in interfering with the right of ownership, is obliged to structure the easement in such a way that the burden on the property is as minimal as possible and limited to the needs arising from the purpose of the transmission equipment.
Regardless of the procedure for establishing a transmission easement, the possibility of acquiring it by adverse possession also plays a significant role. Adverse possession is of a primary nature and arises by operation of law upon fulfilment of the statutory conditions, in particular the long-term and uninterrupted use of permanent and visible transmission facilities. In this case, the property owner’s consent is not required, which significantly affects their legal position, especially as adverse possession does not entail an obligation to pay compensation. For this reason, the issue of acquisitive prescription of transmission easements is of significant practical importance and is often the subject of disputes between property owners and transmission operators. Against this background, the issue of acquiring transmission easements by way of acquisitive prescription takes on particular significance, and will be discussed in greater detail later in this article.
Alongside the civil law route, there is also an administrative procedure for obtaining rights to use property, in particular on the basis of decisions issued under the provisions on property management. It should be emphasised, however, that administrative decisions do not give rise to a limited property right in the form of a transmission easement, but merely impose temporary and functional restrictions on the exercise of the right of ownership. In this regard, the transmission operator has the option of choosing between the civil law and administrative routes, each of which is based on different premises and gives rise to different legal consequences.
The role of the property owner’s consent in the process of establishing a transmission easement therefore remains fundamental, though not always decisive. Under the contractual procedure, it forms the basis for the creation of the right and enables the owner to exert a real influence over the extent of interference with their property. Under the judicial procedure or in the case of acquisitive prescription, this consent loses its significance, which further emphasises the need for property owners to respond consciously and actively to the manner in which transmission operators use their land.
Rights and obligations of the owner of property subject to a transmission easement
In accordance with the Supreme Court’s ruling of 17 April 2023 (case no. II CSKP 961/22), a transmission easement entails granting the operator the right to use the property to the extent resulting from the type and function of the transmission equipment in question. This right includes undertaking all activities related to maintaining the equipment in proper technical condition. It cannot be ruled out that the established easement also encompasses the right to construct such equipment if it does not yet exist at the time of the easement’s establishment. However, the right to expand transmission facilities must be assessed differently, as it is not, in principle, covered by the easement if it involves a change in the type, technical parameters or characteristics of the facilities specified in the agreement. In accordance with the aforementioned ruling of the Supreme Court, the entrepreneur’s right to undertake specific actions is matched by the obligation of the owner of the encumbered property to tolerate them. This entails the owner’s obligation to respect specific restrictions on the manner of using the property and its development, to the extent necessary to ensure the entrepreneur access to the transmission facilities. However, the nature of the transmission easement does not give rise to any other, more far-reaching restrictions on the rights of the owner of the encumbered property in the exercise of their authority over the property.
The owner of the property encumbered by a transmission easement is first and foremost entitled to appropriate compensation for the establishment of this limited property right. This compensation constitutes an equivalent for the interference with the right of ownership and is intended to compensate for the restrictions to which the owner is subject in connection with the installation and operation of transmission equipment. Its amount should be proportionate to the extent of the encumbrance on the property, in particular to the area covered by the easement, the type and technical parameters of the equipment, the degree of hindrance to the use of the property, and its intended use. This compensation may be a one-off payment or a periodic payment; however, in the event of the establishment of an easement by a court, it should be determined at the same time as the decision on its establishment.
Irrespective of the right to remuneration, the owner retains the right to use the property to the extent that this does not interfere with the exercise of the transmission easement. This means that the easement does not lead to a complete deprivation of the owner’s control over the property, but only to its restriction within the limits set by the purpose and content of the established right. The owner has the right to develop the property, erect structures or carry out business activities, provided that such actions do not encroach upon the easement strip or prevent the transmission operator from accessing the transmission facilities. In each case, the limits of permissible use must be assessed in the light of the specific terms of the easement and the actual requirements arising from the operation of the facilities.
Another significant right of the owner of the encumbered property is the right to demand that the transmission operator exercise its rights in the least disruptive manner possible. The operator is obliged to organise operational, maintenance or repair work in such a way that it interferes as little as possible with the owner’s use of the property, whilst ensuring the safety and proper functioning of the equipment. Activities exceeding the scope of the easement or carried out in an excessively disruptive manner may constitute grounds for seeking protection of property rights. The owner is also entitled to claim damages in the event of damage caused in connection with the construction, operation or maintenance of transmission facilities. This applies both to damage occurring within the easement strip and to damage going beyond the typical consequences of establishing an easement, in particular damage resulting from breakdowns, improper performance of work or breaches of safety rules. In such situations, the operator’s liability is assessed in accordance with general principles.
Finally, the property owner retains the right to demand a change in the manner of exercising the easement if, as a result of a change in circumstances, it has become particularly burdensome, or where there are significant reasons related to a new manner of using the property. In certain cases, it is also permissible to demand the abolition of the easement in return for compensation if it has lost its economic significance for the operator. The above rights confirm that, although a transmission easement constitutes a significant restriction on the right of ownership, it does not deprive the owner of legal protection or of a real influence on the manner in which the property is used.
The significance of the Constitutional Tribunal’s judgment for property owners’ claims
The Constitutional Tribunal’s judgment significantly alters the assessment of the legal situation of property owners whose land is encumbered by transmission facilities, particularly in the context of the argument raised by undertakings regarding the acquisition of transmission easements by adverse possession. Previous case law, which broadly allowed periods of use of the property prior to the statutory introduction of transmission easements to be counted towards the limitation period for acquiring that right, led in many cases to the permanent deprivation of owners’ ability to obtain any compensation for the long-term restriction of their property rights. The Tribunal challenged this approach, pointing to the need to respect constitutional standards of property protection and the principle of proportionality in interference with that right.
The significance of this ruling lies primarily in weakening the position of transmission operators, who until now had based their legal position solely on the concept of acquisitive prescription, despite the lack of a formal legal title to use the property. Consequently, property owners gain a solid basis for challenging claims regarding the acquisition of transmission easements through adverse possession, particularly in relation to periods prior to 2008, when this institution was not yet regulated in the Civil Code. This paves the way for a reassessment of many factual situations that were previously considered definitively concluded.
The Constitutional Tribunal’s judgment also strengthens the ability of owners to pursue financial claims relating to the non-contractual use of property. In situations where an entrepreneur does not hold a validly acquired right in rem, the owner may demand remuneration for the use of the land and, in certain cases, also compensation for damage arising from the installation and operation of transmission equipment. This applies both to past periods and to the continued use of the property without the legal title having been settled by way of a contract or a court ruling.
Adrianna Bracichowicz is a dedicated lawyer at our firm, specializing in business law and also in litigation law. She graduated with a master's degree from the University of Wroclaw, and also developed her skills while studying at the University of Bergen in Norway under the Erasmus+ program. She is currently continuing her legal education by completing the first year of her lawyer's apprenticeship.
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