O własności budynków i urządzeń wzniesionych na użytkowanym wieczyście gruncie
About the ownership of buildings and objects erected on the property in perpetual usufruct

Summary/Abstract: The focus of the article is on the interpretation of art. 235 §1 of the Polish Civil Code, which concerns buildings and other objects erected on the property in perpetual usufruct. According to the abovementioned provision of the Civil Code, such buildings and objects constitute real property separate from the ownership of the plot of land on which they are erected. It is the holder of the right of perpetual usufruct who is also the owner of the constructions present on the property. The regulation in question is an exception to the superficies solo cedit principle. However, the civil law doctrine and the case law is not uniform as far as the scope of the above exception is concerned. Some authors put great emphasis on the phrase to be found in art. 235 §1 CC according to which the perpetual usufruct holder gets the ownership only of these buildings and objects that are erected by him. In case of constructions erected by other persons (e.g. leasees), they would only constitute an element of the land and would be covered by the same ownership title. The author of the article takes an opposite view. In his opinion the literal meaning of art. 235 §1 CC is not decisive and all constructions erected on the property should be treated equally, whoever raised them. This view has been recently supported by the Polish Supreme Court in its judgment of November 25, 2011. All activities upon the property are undertaken on the account of the perpetual usufruct holder who remains liable against the owner of the land but who also gets the ownership of all new buildings and other objects that are firmly fixed to the ground. The author argues that only this interpretation allows to avoid unnecessary complications concerning the mutual relations between the owner of the land, the perpetual usufruct holder and the person who raised a building or another object. Additionally, it is demonstrated that the proposed understanding of art. 235 §1 CC greatly helps in applying the tax law rules with regard to identifying a person obliged to pay the real property tax concerning objects erected on the land.

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