Use — powers and obligations

Use – definition

In accordance with Article 252 kc, usage is that a thing may be placed on the right to usage it and to take advantage of it. The usage of things (ususus) involves possession and use.

Use is the only law regulated in the civilian Code for limited possession and usage full range – placing the biggest burden on ownership.

Type of things that can be put on use

The right of usage may be imposed on both movable and immovable items, with the usage besides covering the component parts of the property and its affiliation (yes: judgement of the Court of Appeal in Krakow of 29 November 2013, Act mention I ACa 1157/13).

Use of rights

Rights may besides be used. The provisions on the usage of goods shall apply mutatis mutandis to the usage of rights. However, the provisions on the transfer of that right shall apply mutatis mutandis to the establishment of usage in law.

Input of use

A fundamental legal event under which usage is created is simply a civilian law contract, to which, in the absence of circumstantial provisions, the transfer of property rules, in this case, are applicable (Article 245(1) of the Law), provided that, as regards the property, the form of a notarial act is required only for a message by the owner who establishes specified a law (Article 245(2) of the Law).

In the event of the existence of a co-ownership of the right of use, a declaration of this kind, as a legal act exceeding the scope of the average board, requires the consent of all co-owners (Article 199 kc) (yes: judgement of the Court of Appeal in Krakow of 29 November 2013, Act mention I ACa 1157/13).

The emergence of usage and unilateral legal acts

As has been said, the establishment of a limited right of property (and so besides of use) is subject to the transfer of ownership provisions accordingly. The word ‘property transfer’ is simply a method and legal word and means the transfer of ownership under contract in the terminology of civilian law. The transferee is called the seller and the individual who acquires the property as a consequence of specified a contract is called the buyer. This is so a bilateral legal act.

In any case, the property owner's will to establish a limited right of property cannot be declared as a unilateral (sufficient) legal act (yes: A. Wąsiewicz (in:) civilian law system, p. 610).

In particular, it does not confirm the unilateral nature of the action to establish a limited substantive right, the fact that a paper covering the declaration of the owner – Article 32(1) of the Act of 6.07.1982 on perpetual books and mortgages, the uniform text of Dz.U. of 2001 No. 124, item .1361, hereinafter referred to as U.K.w.h. (as Edward Gniewek. Comment on Article 245 of the civilian Code. Book two. Property and another rights in kind, Zakacze 2001).

The standardization of Article 32(1) of the Law is simply a consequence of the regulation contained in Article 245(2) of the Law. The usage is based on a contract, so it is besides essential for the creditor to accept this declaration, with the exception that the creditor’s declaration does not require any peculiar form and can be made not only in the contract itself, but at any time by any conduct revealing the will in a adequate manner, or can even be understood as already mentioned above.

It should so be recognised that the establishment of the right of free of charge for life by unilateral declaration of the will of the owner is impossible (yes: judgement of the Provincial Administrative Court in Gliwice of 23 October 2008 No. I SA/Gl. 574/08 and judgement of the Provincial Administrative Court in Krakow of 5 April 2011 , Reference to Act I SA/Kr 312/11).

Duration

Use can be both timely and unlimited. usage established for the benefit of a natural individual shall expire at the latest with its death (Article 266 kc).

An crucial feature of usage is invaluability (Article 254 k.c.) and individual character, which causes this right to expire at the latest with the death of an authorised natural individual (Article 266 k.c.). This is the longest duration of usage established for the benefit of a natural person. This provision demonstrates the legislator’s view that the usage of the natural individual should service to keep it (alimony) (yes: judgement of the Poznań territory Court of 15 April 2015, Act No XII C 2247/14).

User-required benefits

As indicated, on the basis of use, the right to usage the item and take advantage of it. The usage of things (ususus) consists of possession and use. Within the scope of the second entitlement, the user may collect civilian benefits (Article 53 §2 kc), natural benefits (Article 53 §1 kc), benefits of the law (Article 54 kc) (yes: B. Ziemian, K.A. Dadańska, Law of Matter, p. 134).

The natural benefits of things are her fetuses and another components separated from her, if according to the principles of average economy are average income from things (Article 53 §1 kc).

Pursuant to Article 53(2) of the Code, the civilian benefit of things is the gross which a thing brings on the basis of a legal relationship. specified a legal relation is the right to property of perpetual use, use, lease, lease, benefits for the uncontractual usage of goods. The civilian benefit is interest, rent or lease, dividends, fees, yearly fee for perpetual usage (yes: order of the Gliwice territory Court of 20 May 2014, Act III Ca 48/14; judgement of the Krakow territory Court of 28 September 2018, Act No II Ca 1008/18).

Similarly, the territory Court of Poznań stated in its judgement of 15 April 2015, Act No XII C 2247/14, stating that the collection of benefits may consist in the collection of the benefits of civilian things (Article 53(2) of the Code) or of the foetuses and another components thereof, natural benefits (Article 53(1) of the Code), i.e. the income that a thing brings on the basis of a legal relation or benefits of law (Article 54 of the Law) covering the income that it brings in accordance with its socio-economic purpose.

Inalienability of use

Article 254 kc provides that usage is not transferable. usage cannot so be a legal object.

Rental, leasing or lending of usage — exercise of the right of usage by 3rd parties

The inalienability of the right of usage must be distinguished from the exercise of that right. The User may execute this right either by himself or through another persons, e.g. by substituting the object of usage in lease, lease or lending. The transfer of rights of usage to another persons is so not opposed to the rule of its non-availability (yes: Commentary to the civilian Code. Book two. Property and another rights in kind. Rudnicki Stanisław, Rudnicki Grzegorz).

Similarly, the ultimate Administrative Court found in its judgement of 12 October 2010, Case I OSK 1697/2007, stating that there is simply a discrimination between having a right of usage and exercising it. The exercise of this right means a certain set of rights to usage and to take advantage of things, and so does not mean having that right in the sense of limited substantive law. The user can execute them himself, but besides through another people.

Transfers related to the usage of allowances shall not lead to the transfer of usage as a substance. You are entitled to specified a regulation, due to the fact that the usage of the property by you is not subject to restrictions, of course with the preservation of the ownership of the entity that gave you the object in usage (similarly: ultimate Court resolution – civilian Chamber of 26 April 1991, act No. III CZP 32/91).

Furthermore, it should be noted that Article 300 kc, in relation to service, provides that individual services are inalienable and that the power to exercise them cannot be transferred. Under the law on use, the legislator did not introduce specified a restriction.

Limitation of scope of use

Pursuant to Article 253(1) kc, the scope of usage may be limited by excluding the identified benefits of the goods. The exercise of the usage of the property may in turn be limited to its designated part (§ 2).

However, limiting the usage of the property to a circumstantial part does not change the fact that the usage of the property continues to charge the full property (yes: judgement of the Court of Appeal in Warsaw of 18 March 2015, Act No VI ACa 855/14, and Stanisław Rudnicki's Commentary to the civilian Code).

Establishment of usage on the perfect part of the property

The question of the admissibility of establishing usage on the perfect part of the property was positively prejudged in the resolution of the ultimate Court of 28 March 1980 (Event III CHP 11/80, OSNC 1980/7-8/139). That court found that the establishment of a limited right in rem on a fractional interest in property ownership rights is not invalid.

The rights of the rightholder to participate in joint ownership

The exercise of the rights of the user whose law is established on the basis of shared ownership shall be based on the analogous application of Articles 195, 199 to 204 and 206 kc. Thus, the situation of the user in terms of users’ rights to usage and benefit the user is no different from that of the property's co-owner. Each of them shall be entitled to share and usage the common property in a way that does not conflict with the law of the another co-owners.

In terms of utilizing and profiting from another person's share, the user of a fractional share will be entitled to the rights that co-owners enjoy in the duration of the co-ownership relationship, as the rights of the user of a fractional share are akin to those of the co-owner. The right of use, as a limited right in rem, is an absolute right and the resulting rights are effective with respect to the property owner (yes: resolution of the ultimate Court of 28 March 1980, ref. Act III CZP 11/80, OSNC 1980/7-8/139).

User authorisationhaving the right to participate in co-ownership

Therefore, since the rights of a user having a right to participate in the exercise of his or her property are akin to those of the co-owner, his or her request for protection of a limited right in rem is based, in fact, on the duly applied Article 206 kc, establishing the right of co-owners to share in common.

His claim is, therefore, directed not only to the individual who established the usage for him, but to each of the co-owners, and surely to those among them who actually benefit from the property(s) whose situation will be a possible taking into account the action by a judgement affected and to whom the possible enforcement title allowing the claimant to usage the property will should be effective.

The essence of the action lies in the desire of the plaintiff to gain power over the substance of joint ownership, and besides over the thing in the possession of the co-owner, which was not the origin of the plaintiff's power for the same thing. Given that the right of use, as indicated above, is simply a burden on the full thing, it is even possible to talk about the indivisible provision of co-owners forced to abolish the exercise of their rights by the user.

This means that the interests of another co-owner are so manifest in judicial proceedings. In this process we are dealing with the essential passive participation. specified participation constitutes a variety of material participation, since the request to co-exist in the dispute between respective entities (in this case on the defendant's side) occurs erstwhile the legal rules legitimise them only to jointly prosecute claims or jointly defend their rights on the defendant's side (yes: judgement of the territory Court of Krakow of 29 January 2014, Act No II Ca 1406/13).

Operating rules and compliance with the requirements of the correct economy

Pursuant to Article 256 kc, the user should exercise his or her right in accordance with the requirements of the correct economy. This is the main work of the user. Under this obligation, the user is obliged to bear burdens that should be covered for the benefit of things.

This work is further specified in Article 260(1) by stating that the user is obliged to make repairs and another expenses related to the average usage of things. On the another hand, the request for another repairs and investments should immediately inform the owner and let him to do the work needed.

Where the usage involves a circumstantial set of means of production, the user may replace the individual components within the limits of the average economy. The components thus incorporated become the property of the owner of the utilized production unit (Article 257 §1 kc).

On the another hand, if the product mix utilized is to be returned as estimated, the user acquires the ownership of its individual components as shortly as they have been issued to him. Upon cessation of use, a squad of the same kind and value shall be returned unless otherwise reserved.

User power to start fresh devices

In accordance with the wording of Article 268 k.c., the user may establish fresh devices within the premises within specified limits as the tenant. It so refers to the application of Article 684 k.c., which states that the tenant may set up electrical lighting, gas, telephone, radio and another akin devices in the rented premises, unless the method of setting them up is contrary to the applicable rules or threatens the safety of the property.

Consequences of a breach by the userrules for the exercise of rights in accordance with the requirements of the correct economy

Violation of the rules of usage and exercise of that right in accordance with the requirements of the correct economy may consequence in the user's work to make good the harm (Article 471 kc) or, in relation to natural persons, the owner's request to supply a safety within the prescribed time limit and, if this does not consequence in a result, a court action to appoint a manager (Article 269 §1 kc).

The user's burden and definition

The scope of the work to bear loads is governed by Article 258 k.c., which states that in the relation between the user and the owner, the user shall bear the weights which, in accordance with the requirements of the appropriate economy, should be borne for the benefit of things.

The general definition of weights is not formulated in doctrine, and the content of this concept is explained by indicating their examples.

In particular, taxes and another public liabilities are included in the weights, according to the first conviction of Article 260(1) of the Code, that the user is burdened with the costs associated with the average usage of goods. Therefore, the user will be obliged to make these investments besides erstwhile the present thing does not bring benefits, but only is used.

Regional Court in Łódź in judgement of 12 May 2017, Act III Ca 46/17, expressed the view that Article 258 k.c. shows that the burden borne by the owner of the goods is the basis for the interior regression with the user erstwhile the burden remains in specified close connection with the useful thing that the principles of the correct economy are in favour of its benefit.

In turn, according to the wording of Article 268 k.c., the user may establish fresh devices in the premises within specified limits as the tenant. It so refers to the application of Article 684 k.c., which states that the tenant may set up electrical lighting, gas, telephone, radio and another akin devices in the rented premises, unless the method of setting them up is contrary to the applicable rules or threatens the safety of the property. The right of the user to set up fresh equipment should be exercised to pay the costs resulting from this. Thus, the owner of the goods will besides have the right to regress as regards the costs incurred for utilizing these devices in relation to the user, but not in relation to 3rd parties.

Other obligations of the user of goods

The user is obliged to make repairs and another expenses related to the average usage of things. The request for others and investments should be immediately notified to the owner and allowed to carry out the essential works (Article 260(1) kc).

If a 3rd organization makes claims against the user concerning ownership of the property, the user should immediately notify the owner (Article 261 kc).

Contractual specificity of the user’s work to exercise the law in accordance with the requirements of the correct economy

The specificisation of the user's work to exercise the law in accordance with the requirements of the correct economy, in addition to detailed rules, may besides take place by means of a contract concluded between the parties, as this is simply a real commitment (so: civilian Code Comment, under red: Edward Gniewek and Piotr Machnikowski, issue: 8).

Making investments to the user

Article 260(2) kc states that if the user has made inputs to which he was not obliged, the provisions on the conduct of another persons' cases shall apply accordingly.

Therefore, the user can claim reimbursement of reasonable expenses and expenses, together with statutory interest and exemption from liabilities which he has incurred in connection with the charges.

Contributions to the owner

According to Article 258 k.c., the burden borne by the owner of the goods is the basis for interior regression with the user erstwhile the burden remains in specified close relation to the useful thing that the principles of the correct economy are in favour of its benefit.

This was confirmed by the judgement of the Łódź territory Court of 12 May 2017, Act III Ca 46/17, stating that the creditor is liable for carrying these burdens on the owner of the object of use. However, pursuant to Article 258 kc, it may recover the performance from the user. This provision is fundamentally regressive (so: E. Gniewek, in: E. Gniewek, Codex, pp. 659–660).

Limitation of common claims of the owner and user of the goods

The owner's claim against the user to make good the harm due to the deterioration of the item or to return the expense to the benefit, as well as the user's claim against the owner to reimburse the expense for the benefit of the limitation period of 1 year from the date of return of the item (Art. 263 kc).

Use and alleged supplementary claims

Article 230 k.c. provides that the provisions relating to the proprietor's claims against the holder for compensation for the usage of the goods, for reimbursement of the benefits or for the payment of their value, and for compensation of harm due to deterioration or failure of the goods, as well as the provisions relating to the holder's claims for reimbursement of the expenditure in favour, shall apply mutatis mutandis to the relation between the owner of the goods and the dependent holder, unless otherwise provided for in the rules governing that relationship.

The rules on usage are different, so the rules on alleged supplementary claims cannot so apply here. The inability to apply to usage besides applies to Article 225 kc, which provides for a return on the value of the benefits which were not obtained due to the mediocre economy (yes: judgement of the Court of Appeal in Warsaw of 11 July 2013, Act mention I ACa 93/13).

Obligation of the user to preserve the substance of the item and its destination

The user is obliged to hold the substance of the thing and its erstwhile purpose. However, the land user can build and operate fresh equipment for mining minerals under geological and mining law.

Before entering the works, the user should inform the owner of his intention in due time. If the intended equipment changes the usage of the land or violates the requirements of the appropriate economy, the owner may request that they be withheld or secured by the claim for compensation (Art. 267 §3).

Abnormal use

In terms of mobility, the object of usage shall be the items marked with respect to the identity. If the usage of goods of species or money is charged, we are dealing with misuse.

When utilizing the incorrect user becomes the owner of these items. After the end of use, it is required to be reimbursed in accordance with the provisions on repayment of the debt (Art. 264 kc).

Use of a production unit

If the usage includes a circumstantial set of means of production, the user may replace the individual components within the average economy. The components thus incorporated become the property of the owner of the utilized production unit (Article 257 § 1).

If the product mix utilized is to be returned as estimated, the user shall get the ownership of its individual components as shortly as it has been issued. Upon cessation of use, a squad of the same kind and value shall be returned unless otherwise reserved (§ 2).

Protection of use

Pursuant to Article 244(1) usage is 1 of limited rights in kind. For the protection of limited rights, property protection rules (Article 251 kc) shall apply accordingly. Article 222 § 1 kc, which states that the owner (user) may require that the individual who is actually in charge of his or her possession be given the right to have the thing, unless that individual is entitled to exercise effective control over the owner (user).

On the another hand, where the user's law is violated in a different way than by depriving the individual of his actual power over the thing, the user is entitled to a claim to reconstruct the lawful state and to cease infringements (Article 222 §2 kc).

The property user is entitled to protection, effective against the owner (Article 251), and this protection is limited by the scope of the right holder. The user can so argue changes to the property that the property owner wishes to introduce, but only in so far as the designed changes would violate or restrict its law (yes: ultimate Court judgement of 18 June 1976, act III CRN 89/76)

Protection of usage from the owner of the goods

The nature of usage and its socio-economic intent make it possible for the right to argue another persons' entry into the sphere of their power over the thing. It should be stressed that the anticipation of the applicant to prosecute claims is absolute. It can bring them out in relation to anyone who violates, even if it is the owner of things (yes: civilian Code. Comment. Stepień-Sporek Anna, Jedrej Kamil, Karaszewski Grzegorz, Knabe Jakub, Ruszkiewicz Beata, Nazaruk Piotr, Sikorski Grzegorz, Ciszewski Jerzy; Author of commentary on Fr DRUGA tit. III dz. I art. 251: Sikorski Grzegorz). Similarly, J. Wasilkowski, in: strategy P.C., 1977, p. 607; B. Burian, in: civilian Code..., p. 430; K.A. Dadańska, in: civilian Code..., p. 184).

The above causes that the mention in Article 251 kc shall besides apply to the owner infringing the user's right to usage and take advantage of the goods.

This subject was besides addressed in the case law of the ultimate Court. The property user is entitled to protection, effective besides against the owner (Article 251 kc), with that protection being limited by the scope of the right holder. The user can so argue the changes that the property owner wishes to introduce, but only in so far as the designed changes would violate or restrict his law (yes: ultimate Court ruling of 18 June 1976, act No. III CRN 89/76, LexPolonica No. 296459, OSN 1977, No. 3, item 49).

End of use

Article 255 kc provides that legal usage is to expire as a consequence of failure to exercise 10 years.

The ten-year period referred to in Article 255 k.c. shall begin to run erstwhile the user has ceased to exercise his or her right (use and take advantage of the item), i.e. from the date on which the state of conflicting usage arose.

This word must be a continuous, uninterrupted period, it must not consist of different time periods which together will be a ten-year word (yes J. Szachulowicz (in:) K. Pietrzykowski (ed.), Commentary, t. I, 2008, p. 790; similarly: E. Gniewek (in:) Private Law System, Vol. 4, 2007, p. 378.

The legislator at the institution in question assumes that since the rightholder (also through 3rd parties) is not curious in exercising his rights for a rather long period of time, it can be claimed that the usage of his rights has lost any meaning to him (yes. E. Gniewek (in:) strategy of Private Law, Vol. 4, 2007, p. 378; J. Ignatowicz, K. Stefaniuk, Law in Substantives, 2006, p. 216; S. Wójcik (in:) strategy of civilian Law, Vol. II, 1977, p. 646).

The provision of Article 255 kc shall apply to all types of use, regardless of the entities of that legal relation and the subject substance of the law. It besides applies to the usage of intangible rights, including trademark rights (yes: Mariusz Załucki [in:] With Issues of usage of the Right to Trademark, p. 337.

Termination of usage may besides be due to waiver by the rightholder. This message should be made to the owner of the property (Article 246(1) kc). However, erstwhile the law does not supply otherwise and the law was disclosed in the perpetual book, it is essential to delete the right from the perpetual book (Article 246(2) kc).

In addition, the usage shall expire if the individual entitled to specified a right acquires the property of the loaded goods (Article 247 kc).

Nature of the 10 year expiry date

The period laid down in Article 255 kc shall be a preclusive period. The Court of First Instance is so obliged to take into account its expiry from office (yes: judgement of the territory Court of Ciechanów of 13 February 2018, Act No I C 1086/15).

Continue to usage things after the end of use

In the event of termination of use, the usage and benefit of the goods shall be without a legal title and may be assessed under the provisions of Articles 224 et seq. K.c., i.e. self-possessed in bad religion and due remuneration.

Return of the item utilized to the owner

After the end of use, the user is obliged to return the goods to the owner in the condition in which it should be in accordance with the rules on usage (Article 262 kc).

Cash value of use

The basis for determining the value of usage should be the amount of the rent due for the usage of the item or the value of the benefits attributable to the user, and in the event of idle use, the value of the right will find the amount of the rent which the possible user would gotta pay for the full duration of usage or the value of the benefits of the item (yes: K. Kopaczynska-Pieczniak, Glos to the ultimate Court resolution of 26 April 1991, act No. III CZP 32/91).

More on the calculation of the value of the property charged with usage or service – read here

Difference between usage and individual service (housekeeping service)

Rights of usage and service are different laws. This is expressly provided by Article 244(1) of the Law, according to which limited rights in kind are: use, service, pledge, cooperative property rights and mortgage.

Usage is manifested in the burden of the thing with the right to usage it and to take advantage of it, while the content of individual service is defined by Article 296 kc, stating that the property can be charged to a natural individual by law whose content corresponds to the content of the ground service.

The ground service is that a property may be charged to the owner of another immovable property (a property which is owned by a ruler) by a law, the content of which is either that the owner of the immovable property may benefit to the degree indicated by the encumbered property, or that the owner of the immovable property is limited in the anticipation of carrying out certain activities in relation to it, or that the owner of the immovable property must not exercise certain powers which it enjoys in respect of the immovable property under the provisions on the content and exercise of the property (ground service) (Article 285(1) k.c.).

The right to service the flat of its essence is besides limited to the residential part of the property.

It is clear from the above set of rules governing these 2 civilian law institutions that the usage and service of a individual (household service) is simply a different legal relationship, although both of them give the right to usage the property (use in the designated area of the loaded property).

More about the service of the flat – read here

Use and inheritance – establishment of usage at the will of the heir

It is not possible to establish usage by unilateral legal action, e.g. in a will. If the heir intends to establish a usage for the designated person, he must charge the heir with the applicable provision (Article 968(1) kc). The heir will make a record, concluding a contract of usage with the future user (S. Rudnicki, in: Commentary to the civilian Code... p. 446).

Exceptions to this regulation are introduced by the provisions on the collection of debt. In a will drawn up in the form of a notarial act, the heir may decide that the designated individual acquires the subject of the evidence at the time the inheritance is opened. In contrast, the object of specified a provision may be, inter alia, the establishment of a storekeeper for usage or service (Article 9811. § 1 kc)

If the subject of the provision is to establish for the beneficial owner or the servicer, the provision is, however, ineffective when, at the time of the beginning of the inheritance, the property to be utilized or serviced does not fall or the inheritancer was obliged to dispose of it.