According to the law, easement rights (servitudes) exist that arise under the Energy Act. This is a specific case of easement rights in favor of energy enterprises, as defined by the Energy Act (EA), over lands from the state land fund.
This concerns the establishment of easement rights under Article 64, Paragraph 11 of the EA in connection with Articles 64, Paragraphs 2-10 of the EA. Easement rights arise under the EA, regardless of the ownership or type of the territory affected by the object, except for lands that fall within the state or municipal forest fund.
Our law firm has been involved in several cases where the Administrative Court, upon appeals by owners of agricultural land, modifies the decisions of the municipal committees according to Article 210 of the Spatial Development Act (SDA), establishing compensation amounts for the establishment of easement rights around 10 times higher than those determined by the experts in the committees.
1 In the court cases, when determining the compensation assessment, the experts incorrectly apply the restrictions under Article 14 of Ordinance No. 16 of June 9, 2004, for servitudes of energy objects
Some of the issues we encounter in the cases arise from the incorrect assumption by the experts that the owners of properties burdened with easement rights are restricted by all the limitations listed in Article 14 of Ordinance No. 16 of June 9, 2004, on servitudes for energy objects. The experts claim that among the limitations on the properties are:
- Any kind of construction, including sports shooting ranges and military shooting grounds;
- Planting of permanent tree plantations;
- Drilling works, exploration, research, and extraction of underground resources;
- Parking of all types of vehicles;
- Storage of waste and materials;
- Lighting fires and burning areas after harvesting agricultural products;
- Hunting and combat shooting.
The experts argue that these restrictions apply to agricultural lands, which are most often third-category fields. However, this assertion is entirely incorrect. According to the law, agricultural lands are not permitted to undergo any of the actions listed above, and therefore these cannot be treated as specific restrictions arising from the easement rights. They already exist as general limitations on agricultural lands. The only factual restriction that could arise on the property would be the inability to plant permanent tree plantations, but even this limitation should not be reflected as an aggravating factor in the compensation assessment.
2 The experts make an incorrect selection of baseline data (comparables) for applying the comparative property valuation method, based on a very limited sample of data
The baseline data (comparables) selected by the experts do not concern cases of establishing easement rights over properties, but instead refer to property transfer transactions.
In the first case, we are talking about retaining ownership of the property by the holder and merely encumbering the property with a burden, while in the second case, we refer to the sale of the property, where the seller loses ownership.
Thus, the comparables are inherently unequal and inappropriate for making a proper and justified assessment by the court.
3 The experts determine the property value based on the potential future use of the property, which is entirely unacceptable
It is completely unacceptable to determine a ten times inflated property value based on the assumption that the properties could potentially develop into “business properties.” This approach is entirely incorrect. The only factors that should be considered for a fair compensation assessment for the establishment of a servitude over a property are its current intended use, the current way it is utilized, and the fact that in recent years, neither the designation of the property as agricultural land nor its use as a field has changed.
The approach of the experts in evaluating the properties in these cases is entirely wrong, leading to inflated valuations and excessive compensation. This, in turn, contradicts the purpose of the compensation provided by law, which is to indemnify the property owner for the damages incurred due to the establishment of an easement right by law or for any potential lost profits.
Instead, as the experts determine and the court accepts, the property owners, for the damages incurred from the legal servitudes, are to be compensated as if their property had been sold.
