In Article 126 of the Real Estate Management Act of 21 August 1997, the legislator provided for an option of temporary seizure of real property in a force majeure event or in an immediate need of serious damage prevention.
In such events, a county administrator (‘staroste’) may limit the owner’s rights to the real property by permitting a third party use of the property for a period up to 6 months by way of an administrative decision.
Because the criteria for the issuance of such administrative decision are not very precise and rather general in nature, their interpretations differ. Recently, doubts concerning their interpretation have arisen in an actual case where “X” company moved to the staroste for the issuance of a decision on temporary seizure of a real property for the purpose of maintenance works on the high voltage line (110 kV), namely for the purpose of trimming the tree branches. In the opinion of the company such works were necessary in order to prevent fire and electric shock hazards.
The staroste, however, refused to issue the decision, which refusal was next upheld by the voivode [in Poland, a voivode is the head of a Province/Region]. The first and second instance authorities (both the staroste and the voivode) were of the opinion that neither the force majeure criterion nor the immediate need of damage prevention criterion were met in the aforementioned case. The voivode maintained that the grounds for issuing a decision specified in Art. 126 of the Real Estate Management Act are the circumstances which require immediate emergency operations to prevent damage. The necessity of trimming tree branches, which on regular basis grow closer and closer to the powerlines, is repetitive and easily predictable, and therefore can be planned in advance. In the opinion of the voivode temporary seizure of a real property in emergency situations as laid down in the Real Estate Management Act cannot be applied to obtain a permit for a forcible entry into the premises of a real property in a situation of a potential hazard only, which furthermore can be easily predicted. “X” Company filed an appeal against this decision in the Voivodeship Administrative Court.
By its decision of 1 February 2017 (case no.: II SA/Rz 680/16) the Voivodeship Administrative Court in Rzeszów overruled the voivode’s and the staroste’s decisions. The court pointed out that the criterion concerning the “immediate need of serious damage prevention”, as specified in Art. 126 section 1 of the Real Estate Management Act, in its essence concerns an unexpected event or condition, which requires undertaking immediate action to prevent serious damage. “The immediate need”, as specified in Art. 126 section 1, does not refer exclusively to a danger situation which has already taken place e.g. explosion, breakdown or leakage. The essence of the Act is not an emergency situation which requires urgent remedy but an immediate need to undertake acts in order to prevent serious damage.
In the opinion of the Court, the consequences of a short circuit situation as described by “X” Company can be deemed as serious damage, e.g. it may cause permanent shut down of the powerline or an electric shock due to a wire falling on a tree.
Therefore, the Voivodeship Administrative Court issued a decision that the legal provisions included in Art. 126 of the Real Estate Management Act are to minimize hazards of any potential serious damage, and hence also a specific hazard which may be posed by a potential breakdown, fire or electric shock.
In view of the above stated, the Court overruled the appealed decisions issued by the staroste and the voivode.
Decision of 1 February 2017 (case no.: II SA/Rz 680/16) is fully effective.
Author: Grzegorz Czajkowski