Guide for real property owners on the principles and conditions applicable to access to real property for telecommunications purposes.
1. When a telecommunications undertaking requests access to real property for telecommunications purposes.
The provision of access to telecommunications services as well as access for other telecommunications purposes requires the telecommunications infrastructure to be rolled out. The telecommunications infrastructure includes telecommunications equipment, excluding telecommunications terminal equipment, and in particular lines, cable ducts, poles, towers, masts, cables, wires and accessories used to provide telecommunications. Due to the fact that the telecommunications infrastructure is meant to satisfy telecommunications needs of people it must be located in places where humans live. Everyone benefits from telecommunications. However, we also oppose it, in particular when the roll out of telecommunications infrastructure requires providing telecommunications operators with access to our real property. The approach of real property owners to this kind of problem varies from total compliance (infrequent) to the denial of rights to real property for telecommunications purposes to network operators.
Rights of way
Each of these extremes is inappropriate. It is necessary to reasonably take account of the interest of each of the parties to the process of providing access for telecommunications purposes. This process, defined in the law, is referred to as rights of way and can be found in most legal systems. In Poland the provisions on rights of way can be found in Article 140 of the Telecommunications Act.
Article 140 (1) of the Telecommunications Act of 16 July 2004 provides for that the owner or perpetual user of real property shall enable operators to install telecommunications equipment on the property, pass cable lines under, on or over the property and place information plates on the equipment, as well as its operation and maintenance, unless doing so prevents reasonable use of the property.
The request for access to real property for the purpose of installing equipment or telecommunications lines may not prevent reasonable use of real property, i.e. such that is in line with its purpose and nature. This is an important condition since the provisions do not limit the number of requests for access to real property. Thus many operators may request access to a given real property. However, satisfying all requests may have an impact on the reasonable use of real property.
Agreement specifying the terms and conditions of real property use
According to Article 140 (2) “the conditions of using the property by an operator shall be specified in an agreement, which should be concluded within 30 days of the day the operator applies for its conclusion”. The parties to an agreement are the operator and the owner or perpetual user of real property. The agreement specifies the conditions for access to real property given to the operator in order to install, operate and maintain telecommunications equipment or cable lines as well as the charges for the use of real property.
According to Article 140 (3) the use of real property shall be subject to a charge, unless the line or telecommunications equipment is used for providing telecommunications to the owner or user of real property, at their request. The above provision says that the equipment and telecommunications lines installed within real property may serve two purposes:
a) they may be used by the users of this real property,
b) they may be used by the users of another real property or they may serve other purposes.
The use of real property under a) is not exempt from charges if none of the users have requested the network operator to provide telecommunications. The very intention to offer telecommunications services to real property users does not exempt from the charges. Under b) the use of real property is always charged.
The agreement specifies the manner and amount of charges for using real property by the operator. The level of charges should correspond to the value of the right granted to the operator. When access to real property is granted on the basis of an agreement, the parties are free to decide on the charges. It may be a one-off charge or it may be a periodic charge, especially if the operator performs service or maintenance activities with respect to the equipment or telecommunications lines. The parties may also decide that the operator will provide non-pecuniary benefits to the owner of real property.
In addition, the agreement should specify in detail the purpose (i.e. the categories of telecommunications users) and the place where telecommunications equipment is located within real property (including the pattern of cable lines) as well as the manner and time limits for installation works and the conditions for access and maintenance activities performed by the operator’s employees.
The operator is obliged to bring real property into its original state once it ceases to operate the equipment and installations. The agreement should also specify the manner in which the original state will be restored and the amount of compensation to the property owner if the operator fails to meet this obligation.
If the parties fail to conclude an agreement within 30 days from the date of applying for its conclusion, the operator, under Article 140 (4), shall be entitled to use the provisions of the Real Property Management Act of 21 August 1997.
Article 124 (1) of the Real Property Management Act states that “a chief official of a district performing a government administration task may by means of a decision limit the manner in which real property is used granting an authorisation to install and pass drainage pipes, wires and equipment intended for the transport of liquids, steam, gases and electrical energy within real property and public communications and signalling equipment as well as other objects and equipment located under, on or over real property necessary to use the wires and equipment, if the owner or perpetual user of real property does not agree to that”.
Under Article 124 of the Real Property Management Act the operator may file a request with a chief official of a district to issue an authorisation to install or pass wires and communications equipment under, on or over real property as well as equipment necessary to use the wires and equipment. The decision of a chief official of a district entitles the operator to maintain the equipment and telecommunications lines as well as to remove failures. At the same time, the operator is obliged to bring real property into its original state immediately after the installation of the lines and equipment.
A chief official of a district, in its administrative decision, shall define under the provisions on real property management the compensation for the owner or perpetual user of real property. The payment of compensation shall be charged to the operator who has been authorised to install equipment or lines.
2. When there is telecommunications equipment within our real property.
The practical use of real property for telecommunications purposes significantly diverges from what is provided for in the law. Not infrequently a telecommunications undertaking without any reasons uses somebody else’s real property for free. This in particular refers to cases in which real property was seized in the past when no regulation existed. The history of telecommunications in Poland covers also the period of exceptional social activity in early 90’s when social committees for telephony roll-out thrived as a remedy to delays in the development of telecommunications. Both the period of “real socialism” and spontaneous activity of these committees did not contribute to ensuring legitimate rights for the owners of real property used for telecommunications purposes. It must be borne in mind that telecommunications infrastructure is durable and that equipment and telecommunications lines installed 20 or even 30 years ago are still in use. It is worth checking whether the use of our real property by a telecommunications undertaking is regulated in an appropriate way and whether due compensation is paid. It should not be expected that a telecommunications undertaking will settle these things on its own initiative.
Compensation for real property use
What are the reasons for which compensation is due? The telecommunications infrastructure located within real property may be a burden to the property owner. It may generate losses for its owners as it may limit the possibilities of using real property or even exclude part of real property from normal use. It happens that equipment makes the plot lose its development capacities. However, the property owner may not remove the equipment on his/her own initiative and he/she may not intervene as the equipment is not his/her property. Under Article 49 of the Civil Code telecommunications equipment is not part of the land or buildings if it is owned by an undertaking or a company, which is the case when equipment is permanently connected to the network.
While reviewing the status of telecommunications equipment located within our real property it should be checked, first of all, whether the equipment was installed with or without our or our predecessors’ consent.
The consent of the owner to install telecommunications equipment and cable lines and to operate them forms a new legal situation in which an undertaking and the owner of real property enter into a durable and continued civil law relation. The durability and continuity of this relation stems from its nature and only in exceptional cases will the land owner be able to terminate it by requesting the removal of the installed equipment. The durability of a legal relation is therefore not absolute since an important change in this relation may give rise to its termination.
If the property owner has not agreed to install telecommunications infrastructure within his/her real property, he/she may request its removal. Thus he/she is in a much better situation in this case.
Remuneration for real property use
Another issue is the possibility to request remuneration for real property use. When telecommunications infrastructure was installed without the owner’s consent, he/she may claim remuneration for real property use. The legal basis for this claim is Article 224 and further Articles of the Civil Code which say that whoever uses things without a legal title and is or should be aware of that must account for the obligation to pay for their use.
It should be borne in mind that the claim for remuneration for using things expires after 10 years. Thus one can expect remuneration only for the last 10 years of using real property without an agreement.
However, it should be borne in mind that a claim may only be raised if real property is used for telecommunications purposes without any legal relation in place (e.g. a contract, an agreement) between real property owner and the operator. When there is a legal relation between the parties forming the basis for using real property for telecommunications purposes, settlements between the parties are made in line with the principles applicable to that relation. Therefore the owner’s consent to charge-free use of real property may cause that the claim will be groundless.
Under certain circumstances the owner of real property may even claim the purchase of the land by an operator.
An important issue is the amount of due remuneration. The level of remuneration due to the owner of real property for its use is equal to the amount the holder would have to pay to the owner if it held a legal title. More specifically, it may be concluded that the remuneration for using things covers everything the owner could obtain if he/she let, leased or gave the property to charged use under another legal relation.
In case of difficulties to agree on the assessment of property losses by the parties, an opinion of a property expert may be sought. Property experts in order to assess losses or to settle the due remuneration for using real property for the purpose of installing telecommunications equipment refer to professional standards adopted by the National Council of the Polish Federation of Property Experts Associations on 10 January 2002 and included in the set of Professional Standards for Property Experts.
Within the framework of due remuneration for the use of real property for telecommunications purposes, the owner may also request a fee for granting access to real property to operator’s employees in relation to operational and maintenance works on telecommunications equipment and cable lines.
Regulated use of real property
Claims related to access to real property are subject to lawsuit and not to administrative procedures. To regulate the use of real property one should first try to legalise the use of land in a conciliatory manner (i.e. under an agreement). The initiative should be taken by the owner of real property. The operator may adopt a defensive attitude trying to wait and delay the resolution of the problem. However, when starting the case one should send to the operator a letter with a concrete proposal for an agreement allowing the use of real property or for establishing real easement.
Achieving consensus, in particular on the amount of a fee, will not be easy. The initial correspondence will probably produce no results and will serve only the exchange of views. Operators find different reasons for which the use of particular installations or equipment is not without a legal title. However, it must be borne in mind that in order to persuade operators to conclude an agreement we could threaten them to pursue before a court our claim related to real property use without an agreement in the previous years. Therefore the potential pursuit of this claim may be an effective argument in negotiations. Unfortunately operators come up with concrete proposals once the case has been filed with a court. This strategy results from the fact that operators count on limited sense of law among citizens and their unwillingness to spend time and money on court proceedings in order to make operators comply with the law.