Published: 2020-08-27

Establishment of transmission easement under perpetual usufruct right (Gloss to the resolution of the composition of the seven judges of the supreme court of may 16, 2017, iii czp 101/16)

Jarosław R. Antoniuk
The Opole Studies in Administration and Law
Section: Articles
DOI https://doi.org/10.25167/osap.2171

Abstract

The Gloss is a partially critical analysis of the resolution of 7 judges of the Supreme Court of May 16, 2017, III CZP 101/16, in which the Court decided that transmission easement may be established under the right of perpetual usufruct. The author takes the view that Art. 233 of the Civil Code authorizing the perpetual usufructuary to dispose of his right, due to the applicable numerus clausus principle of establishing limited rights in rem, does not constitute a sufficient basis for encumbering the perpetual usufruct with the easement of transmission. In the absence of any specific regulation providing for the admissibility of the perpetual usufruct burden with transmission easement, the author is against this possibility. At the same time, the author shares the position expressed in the resolution of the Supreme Court that the perpetual usufructuary cannot effectively demand the establishment of transmission easement if the transmission equipment - installed by a state-owned enterprise during the period of uniform state property - was located on the property of the State Treasury before it was put into perpetual usufruct.

Keywords:

perpetual usufruct, transmission easement, property

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Citation rules

Antoniuk, J. R. (2020). Establishment of transmission easement under perpetual usufruct right (Gloss to the resolution of the composition of the seven judges of the supreme court of may 16, 2017, iii czp 101/16). The Opole Studies in Administration and Law, 18(1), 163–172. https://doi.org/10.25167/osap.2171

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