|Opis:||Typical or 'true' real easement is an easement governed by Article 213, paragraph 1 of the Law of Property Code (LPC). It is statutorily defined as the right of the real estate owner (dominant estate), for his needs to perform certain acts on a foreign real estate (positive easement) or to require the owner of a servient estate to abandon certain acts that he would otherwise be entitled to perform on his real estate (negative easement). From this, we can conclude that it is atypical real easement that is similar to 'true' real easement, but still differs from it in certain elements.
Thus, in Article 226, the LPC regulates a false real easement. It is defined as an easement which, by its content, is a real easement, but is established for the benefit of a particular person. From the definition, we can see that it combines elements of both real and personal easement. By content or entitlements, it is similar to true real easement, except that it is not established for the benefit of the individual owner of the dominant real estate, but for the benefit of a very specific natural or legal person. In this characteristic, however, it is similar to personal easement, which is why Article 226, paragraph 2 stipulates that the provisions of this Act governing personal easements shall apply in respect of the creation and termination of such easements.
The provision of Article 226 of the LPC constitutes the legal basis for the emergence of a special type of easement, which is governed by the Spatial Planning Act (ZUreP-2), namely easements for public benefit. Article 211, paragraph 2, permits the restriction of real estate ownership if it is strictly necessary for the construction of networks and facilities of public utility infrastructure or its smooth functioning. The following paragraph, however, allows the establishment of easements also for the construction or smooth operation of networks and facilities of another public infrastructure, insofar as envisaged by a separate law.
The law primarily requires the legal operational establishment of an easement for the public benefit, but if this is not possible, it allows for the forcible emergence in a special administrative expropriation procedure. The easement beneficiary is the state, municipality or investor of public infrastructure. The purpose of these easements is to pursue a public benefit that should be given at two levels. For the restriction of property rights to be permissible, an abstract public benefit must first be given. This means that an easement for the public benefit must be provided for the purpose stipulated by law, and it must also be provided for in the relevant spatial planning document. Then, in each specific case, the governing body that decides the procedure must decide whether a specific public benefit is provided. This requires two conditions, namely: 1) easement for the public benefit is absolutely necessary (necessity) to achieve public benefit, and 2) public benefit of the expropriation purpose is in proportion to the encroachment on private property (proportionality). However, an additional condition is required that the state or municipality does not have another suitable real estate for the same purpose. In the event of the real estate being burdened with easement to public benefit, the owner is entitled to adequate compensation or allowance respectively.
However, our law knows another institute, which is substantially comparable to real easement, namely lawful easement (lawful servitude). Formally speaking, it is not a matter of actual easement, but a set of entitlements to use foreign real estate, which has a legal basis directly in the law.|