PL EN


2011 | 20 | 2 | 391-443
Article title

Skutki przekroczenia granicy sąsiedniego gruntu przy wznoszeniu budynku lub innego urządzenia (relacja między art. 151 a art. 231 k.c.)

Title variants
EN
EFFECTS OF CROSSING OVER BOUNDARIES BETWEEN NEIGHBORING PROPERTIES WHEN CONSTRUCTING A BUILDING OR OTHER STRUCTURE (RELATIONS BETWEEN ARTICLES 151 AND 231 OF THE CIVIL CODE)
Languages of publication
PL
Abstracts
EN
Determining the relations between the articles 151 and 231 of the Civil Code raises some doubts according to civil law and based on doctrine and judicial decisions. This problem gains special importance particularly when a person, who is the owner of one property, has had a building constructed partly on his/her own property and partly on the property he/she is not the owner of. The analysis of the above-mentioned situation has been performed in the current literature in three possible ways. The assumptions of the firs perspective (Position No.1 ) are based on the observation that, despite considerable similarities, articles 151 and 231 of the Civil Code, are not in the concurrence, as each of them relates to a different situation. The provision of the article 151 of the Civil Code may be only applicable in the event of a minor attachment of someone else's property. On the other hand, the analysis of a case where a building has been constructed on a larger area of someone else's property can be only performed pursuant to the article 231 of the Civil Code. Advocates of the next two approaches, with respect of the above-mentioned situation, allow the possibility of merging the scope of hypotheses provided in the Articles 151 and 231 of the Civil Code. The consequences of the concurrence of the provisions are not perceived uniformly. According to one of the perspectives (Position No. 2) it is affirmed that the application of the art. 231, paragraph 1 of the Civil Code does not definitely exclude the application of the art. 151 of the Civil Code and attention is paid to the fact that due to lack of grounds for the application of art. 231, paragraph 1 of the Civil Code, the owner of a neighboring property is entitled to exercise his/her powers specified in art. 151 of the Civil Law. The essence of another approach (Position No. 3) consists in the fact that the art. 231, paragraph 1 of the Civil Code excludes the application of the provisions of the art. 151 of the Civil Code. In the event that there are no grounds for the application of the art. 231, paragraph 1 of the Civil Code, the provisions of the art. 151 sentence 1 of the Civil Code can be applied. In addition to this, it is emphasized, within this approach, that in a situation described above, the owner of a neighboring property can support his/her claim by one of the powers specified in the art. 151, sentence 1 of the Civil Code and art. 231, paragraph 2 of the Civil Code. The author of the article gives his critical opinion of the Position No. 1 and No. 2. According to the opinion, the analysis of the situation related to a partial development of someone else's property ought to be performed in principle, based on the Position No. 3. The author of the article presents and looks into detailed effects arising out of accepting such an approach. He modifies it to some extent. The modification of the approach is that apart from art. 151 of the Civil Code, the provisions of the art. 231, paragraph 1 can be only applied. There are no grounds, however, for the application of the art. 231, paragraph 2 of the Civil Code.
Year
Volume
20
Issue
2
Pages
391-443
Physical description
Document type
ARTICLE
Contributors
  • Wojciech Górecki, Jagiellonian University, Chair of Civil Law, Olszewskiego Street 2, 31-007 Cracow, Poland
References
Document Type
Publication order reference
Identifiers
CEJSH db identifier
11PLAAAA095139
YADDA identifier
bwmeta1.element.60494e1f-01e3-38b1-8e5f-b9e3abd85561
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