Projekt stanowiska Sejmu w sprawie o sygn. akt P 10/16
Sejm draft position on case ref. no. P 10/16 concerning the Civil Code

Summary/Abstract: In the presentedproject of a position, the author claims that indicated provisions of the Civil Code, inpart which enabled acquisition of a land servitude of similar nature to a transmissionservitude through usucaption, before articles 3051–3054 of the Civil Code entered intoforce, in situation when an administrative decision restricting rights of the owner of theland is non-compatible with provisions of the Constitution. Constitutional protectionof the right of ownership requires every restriction of that right to fulfill certain obligations.From a constitutional standpoint, an institution of land servitude is a restrictionof the right of ownership. In analyzed case the basis for the restriction provided in anact is of primary importance. The author does not agree with the Supreme Court thatthe analyzed provisions regulate land servitude. In her opinion, the provisions cannotserve as a basis for a land servitude as an autonomous right (a transmission servitude),and in consequence cannot serve as a basis for a restriction of constitutional right ofownership. According to the author, the analyzed regulation also does not fulfill thecriterion of necessity.

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