Owners of real properties are entitled to claim the establishment of chargeable transmission easement on account of the existing or planned transmission equipment on their real properties. However, in the current legal state the provisions fail to set out in what manner should be determined the amount of remuneration for the establishment of transmission easement. Also, there has not been agreed any national valuation standard with regard to such easement (however, works are in progress as to draw up an easement valuation standard entitled "Determining the value of transmission easement and the remuneration for a non-contractual use of real property for the purpose of transmission equipment" KSWS-4, dated 14 December 2013). It means that we are dealing here with the equality of various valuation standards available, and with the freedom of choice of valuation method which would best suit the circumstances of a given case.
Keeping in mind the current case law, it may be indicated that remuneration for the establishment of the transmission easement should include:
- Remuneration for using the real property by an industrial enterprise,
- Compensation for the value of the real property having been decreased due to the construction of transmission equipment thereon (if the decrease has indeed occurred),
- Compensation for other damage (to include lost profits) which occurred due to the construction of the transmission equipment.
What is more, it should be a one-time remuneration, which still does not exclude that it be paid in installments (judgment of the Supreme Court of 27 February 2013, IV CSK 440/12).
It is indicated in case law that it is inadequate to determine the amount of remuneration for transmission easement based on the market prices for the tenancy or lease of land (cf. e.g. judgment of the Supreme Court of 28 September 2011, IV CSK 84/11, judgment of the Supreme Court of 18 April 2013, II CSK 504/12, judgment of the Administrative Court in Warsaw of 11 July 2012, file No. I Aca 334/11).
The elements that influence the amount of remuneration should therefore be: the market value of 1 m2 of the unburdened real property (as the top remuneration limit), the size of the strip of the real property, which strip is exposed to the impact of the transmission equipment (the so called limited use area), the degree of limitation of use of the strip of land occupied by the transmission equipment by the owner of the real property (the remuneration should be proportional to the degree of interference) and the degree of decrease of the value of the real property in the limited use area.
Whereas, the surface of the transmission easement strip, that is the area of land of limited use, is determined by the size of the strip necessary to operate a given piece of transmission equipment. It thus depends on the applicable provisions of law and on industry standards. At present, it is submitted that an appraiser is not entitled to establish the width of such strips due to the lack of specialized knowledge on the matter. However, the industrial entrepreneur is obliged to indicate the size of said strip upon the request of the owners of the real property, which has been confirmed by the Higher Administrative court in Warsaw in the judgment of 5 December 2012, IISAB/Wa 390/12.
Author: aplikant radcowski Magdalena Gorazdowska