NIERUCHOMOŚCI C.H.Beck, 2/2025
INSTITUTION OF STRATIFIED OWNERSHIP
OF REAL ESTATE
The Polish legal system operates under the traditional model of real estate ownership, regulated by the Constitution of the Republic of Poland and the Civil Code. Real estate ownership corresponds to the civil law definition of real estate, according to which real estate comprises parts of the earth’s surface constituting a separate object of ownership (land), as well as buildings permanently attached to the land or parts of such buildings, if, under specific provisions, they constitute a separate object of ownership from the land (Article 46 in conjunction with Article 143 of the Civil Code). It is clear from the above formula that ownership (perpetual usufruct) of real estate is treated in two dimensions and is limited to the land area, i.e., the current ownership system operates exclusively on the basis of length and width parameters. The Supreme Court’s jurisprudence clearly states that “Land is a solid whose scope includes the space above and below its surface, which is not tantamount to saying that all material objects permanently located in this space are part of the land and belong to its owner.2” Meanwhile, in Europe, the so-called layered ownership of real estate is successfully functioning, which also focuses on the disposal and development of space above or below the ground. “Layered ownership is a concept that involves the division of space above and below the surface of the ground by separating its vertical boundaries and dividing it into so-called spatial plots. It involves adding a third dimension, i.e., height, to the two-dimensional system in which real estate usually operates.1 The rest of the article is devoted to discussions on the functioning of stratified ownership institutions around the world and the actual possibilities of its implementation in Polish legislation.
In this age of advanced technology and construction engineering, it is not uncommon for investments to be carried out above railway tracks, tunnels, public roads, or underground. The institution of layered ownership functions successfully in industrially developed countries that use advanced construction solutions, such as Scandinavian and Anglo-Saxon countries, the United States, Malaysia, and Singapore. In the American model (“Transfer of development right”1), it is possible to trade the right to develop part of the space, e.g., the airspace above the land. “American law also recognises the concept of ”air rights”, which may be separate from the land and subject to division into horizontal and vertical layers. Trading in air rights is subject to the same legal regime as trading in land. It is possible to encumber such air property and transfer the rights to it to other entities.2″ In European countries, on the other hand, a popular solution is the so-called three-dimensional property right, which is widespread in Sweden. In the case of the Swedish concept of so-called 3D property, it boils down to the introduction of an additional vertical delimitation of property rights (in the space below and above a given plot of land, many owners or perpetual usufructuaries may operate in parallel. The basic form of 3D property rights can be established for an existing (or planned) building (or part thereof) or other structures. In this sense, it is similar to the Polish institution of separate ownership of premises. However, unlike separate ownership of premises, 3D property rights may be established prior to the construction of the building (or part thereof) to which they relate and be a fully-fledged object of security (e.g., investment financing). 1” The concept of three-dimensional ownership seems to be the most similar and feasible in the Polish legal system, which is why it is briefly discussed below.
The concept of three-dimensional ownership boils down to a departure from the fundamental Roman principle of superficies solo cedit (“what is on the surface belongs to the land”) in favor of separating the use of airspace from the land. In legal circles, this concept is commonly referred to as “new ownership,” which would in fact be dedicated to structures whose ownership is not linked to land ownership. In practice, these structures do not form a common whole with the land, but have the status of independent and separate property rights. “It is not clear whether and to what extent three-dimensional (layered) ownership should apply exclusively to objects located above the land and, possibly, the space in which they are to be located, or also to objects permanently connected to the land (regardless of their location on or below the land). In the latter case, this would concern objects which, under specific provisions, would be deprived of their status as components of the land.1” In practice, the introduction of layered ownership into the real estate market would allow for a situation in which the rights of the owner (perpetual usufructuary) of the land would extend to a predetermined height or depth. Wtenczas powstałaby możliwość nabycia przestrzeni powietrznej lub powierzchni pod gruntem, przekraczającej zakreślone wartości wskazanych limitów wysokości czy głębokości – „Możliwe byłoby wówczas nabycie dalszej przestrzeni nad lub pod gruntem niezależnie od samego gruntu. Pozwoliłoby to na realizację transakcji kupna sprzedaży własności „warstw” znajdujących się pod oraz nad powierzchnią gruntu jako samodzielnych nieruchomości. Zapewniłoby to najszerszy i nieograniczony w czasie tytuł prawny do tej przestrzeni.” W praktyce wprowadzenie na rynek nieruchomości mechanizmu własności warstwowej pozwoliłoby np. na ustanowienie odrębnej własności dla wielkosklepowych galerii handlowych zlokalizowanych nad torami kolejowymi czy parkingami podziemnymi.
The three-dimensional property structure described above clearly shows that if a decision were made to apply it in Poland, it would be necessary to create the necessary and innovative legal regulations. Of course, the introduction of solutions analogous to those applicable to perpetual usufruct, taking into account the specific nature of this right. Translating the above-described models of layered ownership functioning on a global scale to the Polish reality, the introduced change would undoubtedly revolutionize the real estate sector and result in a huge inflow of funds to the state budget. The implementation of development projects in the so-called airspace obviously requires appropriate preparations and long-term work by experts in order to ensure proper implementation into the existing legal order. Due to the shortage of real estate for commercial or residential investments (especially in large urban agglomerations) and the enormous potential of airspace for development, the legislator has undertaken work to draft a bill on stratified ownership. The introduction of such a revolutionary change to the specific nature of the Polish legal system requires a thorough analysis of the functioning of stratified ownership in other legal systems around the world, as well as a careful and comprehensive drafting of a bill on ownership with a new institution of building rights. Currently, there are no legal provisions in our legal system that are strictly devoted to the issue of layered ownership (“Currently, therefore, real estate in Poland operates in the simplest, two-dimensional system, assuming only length and width.1”), and codification work in this area has not been completed.
In Poland, the above-mentioned construction investments in the so-called airspace (or underground) are currently carried out on the basis of contractual relationships, i.e., lease or tenancy agreements. In particular, the investor receives the right (usually for an appropriate fee) to carry out a construction project above or below the ground that is the subject of the project. This solution creates certain difficulties for a potential developer, as a contractual relationship (which can be terminated) is not as permanent and secure as a property right. Moreover, although a lease or tenancy agreement may constitute a legal title to dispose of real estate for construction purposes, as referred to in Article 3(11) of the Construction Law, they require an appropriate reservation in this respect. An alternative to the current situation in the case of land belonging to a State Treasury company is the so-called D50 agreement, which, as a specific creation, may authorize the use of land and the disposal of real estate for construction purposes. However, even this solution does not imply the desired consensus in the legal sphere. It is the State Treasury company that is primarily interested in departing from the classic principle of superficies solo cedit and separating ownership of the space above and below the ground, regardless of ownership or perpetual usufruct of the land. Carrying out the above-described legal procedure would allow PKP to freely and commercially develop the airspace above the railway tracks.
In the absence of relevant regulations on layered ownership, a helpful and intuitive solution would seem to be the application of a limited property right in the form of an easement, e.g., a right of way. “Just as in the case of electricity transmission, no title of ownership or perpetual usufruct of land is required for the operation of rail transport.” However, applying this solution to the space above railway tracks, which constitutes a significant real estate portfolio, would require amending the institution of transmission easement in accordance with the following guidelines. The modification of transmission easement would be based on expanding the scope of transmission equipment specified in Article 49 of the Civil Code by adding equipment intended for railway traffic. As a result, PKP (or possibly PKP PLK) would be able to trade ownership or perpetual usufruct for a fee, while guaranteeing itself the possibility of performing railway tasks by establishing transmission easements for the company in the form of railway traffic. The proposed solution seems extremely attractive and does not require any particular difficulties to implement, but it is dedicated exclusively to real estate constituting the resources of PKP (or possibly PKP PLK). As a result, there is still room for the establishment of a new tool in the form of layered ownership, which will comprehensively ensure the possibility of developing and trading space above and below ground.
In conclusion, the institution of layered ownership offers new opportunities for implementing development projects on different terms and conditions. On the international stage, it also means meeting European standards accompanying legal regulations. The implementation of this new form of ownership would not only revolutionize the real estate market, but also bring it up to European and global standards. A fundamental question arises as to whether Polish society and Polish or foreign entrepreneurs investing in it can afford to continue to fail to exploit the full potential of real estate ownership. In the author’s opinion, a reliable answer to this question can only be given after gaining in-depth knowledge and awareness of the possibilities offered by the discussed real estate ownership structure.
Alicja Sławińska, attorney-at-law
ALICJA SŁAWIŃSKA AS LAW FIRM
