One of the documents an investor is required to submit when applying for a building permit is a statement confirming the right to use the property for construction purposes. This requirement stems from Article 33(2)(2) of the Act of July 7, 1994 – Construction Law (“Construction Law”).
According to Article 3(11) of the Construction Law, the right to use a property for construction purposes is understood as a legal title resulting from ownership, perpetual usufruct, management, a limited property right, or an obligation-based legal relationship that provides the right to carry out construction works.
A frequent question that arises among investors is whether, in cases where they hold a real estate easement—such as a right of way—they are authorized to use the encumbered property for construction purposes.
Administrative court rulings indicate that holding a road easement does in fact involve the right to use the property for construction purposes—but only insofar as it enables the exercise of that easement, such as entry, passage, or transit.
Courts emphasize that whether a particular land easement grants the right to use the encumbered property for construction works related to exercising the easement must be assessed individually in each case. This assessment should take into account the nature of the easement as defined in the agreement between the parties under which the easement was established, or as specified in a court ruling that created the easement.
If an investor intends to carry out construction works on a property over which they hold a land easement, they should ensure that the agreement establishing the easement includes explicit provisions that eliminate any ambiguity regarding this right.