A BUILDING THAT DID NOT BOW TO THE BOUNDARIES OF THE LAND

I am cleaning up the mess left by the Gierek era… in the Silesian land and mortgage registers.

According to a principle of Roman law that has been present in the law for two millennia, with strictly defined exceptions – the one who owns the land also owns everything that is part of it – trees, structures and buildings. Regardless of who planted or erected them, and from whose funds the construction was financed.

Alas, this principle did not fully “take hold” in Upper Silesia, at least during the decade of Edward Gierek, at least in the area of coal mining. At the time, what mattered more than order in the land and mortgage registers was the execution of the plan, farm visits, meeting the livelihood needs of the growing crews and coverage on the first colour TV sets.
The legacy of the ‘aborted decade’ left a mess of books to be sorted out – as ‘perpetual’ left to the next generation.

A few years ago, I was approached by the authorities of a company that manages, among other things, former company housing after the (now partly decommissioned) ‘black gold’ mines.

The problem seemed considerable. In the mid-1970s, a five-storey (so-called five-staircase) building was erected as a workers’ hotel for the mine’s employees. Regretfully, it was not recognised (or recognised but not cared for) that by erecting the building, the boundaries of the plot of land available to the mine had been greatly exceeded. There was no denying that roughly two storeys were on the neighbouring plot of land. It was out of the question to make a claim against the neighbour under Article 231 § 1 of the Civil Code (claim for the redemption of another’s plot of land occupied for construction). It would have been difficult, even under the pre-1989 jurisprudence of the courts, to attribute to the elevator the status of a good faith possessor. After all, land registers also existed in the People’s Republic of Poland and were open to the public – including the head managers of unions and mines. At the very least, it was questionable to bring an action under Article 10 of the Act on Land Registers and Mortgages (for reconciliation of the contents of the register with the actual legal state). This was because the discrepancy concerned a factual act (crossing the boundary of the plot when constructing a building) and not a legal act (selling the land, encumbering it, etc.). Theoretically, a proposal could be made to the owners of the neighbouring plot to acquire their land, or at least to separate and acquire that part of it on which the company building was erected. Theoretically, because the last entry in the (as early as Prussian) ledger dated back to a century ago and showed the right of a person who, beyond all doubt, was dead and from whose heirs there was no trace.

The stance of the Supreme Court, whereunder a building, fixed to the land, is a component of that part of the plot of land on which the larger part of the building is located, proved to be a salvation. In such a case, the smaller ‘part’ of the undivided building does not constitute a component part of the property whose boundaries have been crossed. It remained – pursuant to Article 27(1) of the Land and Mortgage Register Act – to disclose in the register the actual object of the company’s ownership – a plot of land with a five-storey building (irrespective of the fact that the boundaries of the plot had been crossed), in place of the three-storey building which had been shown there since the 1970s, contrary to reality. The land registry court granted the application. Phew…