Possession of a Utility Easement

Abstract

A utility easement was introduced into the Civil Code by virtue of the act of 30 April 2008
amending the Civil Code and some other laws (Journal of Laws 2008, No. 116, item 731). It is recognised
as a type of easement that is separate from an easement appurtenant or easement in gross,
the aim of which is to increase the utility of a utility service. A utility easement falls under the category
of affirmative easements (involving the use of encumbered real estate). Thus, the provisions of
Article 352 of the Civil Code, which regulate the holding of an easement, will apply here. Due to the
regulations on an easement appurtenant (Article 3054 of the Civil Code) applying to a utility easement,
part of observations made in the present article may also apply to an easement appurtenant.
The article discusses the question of the capacity to hold a utility easement. It is assumed that
a holder of a utility easement right may be an entrepreneur whose main activity involves the supply
or removal of fluids, or electric energy gases (the so-called utility entrepreneur). What a utility
easement is considered to involve is the installment and exploitation of utility appliances situated on
another person’s real estate.
In conclusion, a thesis is made that due to the specific features of possession of a utility easement,
it may be recognised as a form separate from autonomous possession or dependent possession
mentioned in Article 336 of the Civil Code (in a similar manner part of the doctrine qualifies the
tenure of perpetual usufruct).