What to pay attention to when determining property lines
Every one of us associates property boundaries with lines on a map established by an authority. When we hold a physical map, generally a building record map or a basic map, we think that everything sketched on it reflects the proper land state. Unfortunately, it’s not always like that. What do you need to know about property lines then?
Cadastral plot boundaries and property boundaries
Before we delve into the information about the types of property boundaries, their value, hierarchy and methods of determining them, let’s start with the definition of cadastral plot boundary and property boundary:
– cadastral plot (pl.: działka ewidencyjna) boundary according to the ordinance of the Minister of Regional Development and Construction of 29.03.2001 on land and building records (ordinance of the EGiB) is a part of the cadastral plot outline, in the form of a polygonal chain or a line segment, shared between two neighboring cadastral plots or overlapping the country border – in cases of cadastral plots neighboring with that border.
– property boundary is a line in form of a polygonal chain or a line segment dividing land parts, which are separate objects of property (lots), as well as buildings permanently connected to the grounds or parts of such buildings, if by law they are an object of property separate from the ground. The definition cited above comes from the Article 46 from the Civil Code of April 23rd 1964.
In order to differentiate between the two definitions mentioned above, in simplest terms every property boundary is at the same time a cadastral plot boundary. This doesn’t apply to cadastral plot boundaries, because they are constituent parts of the cadastral plots making up a land property. Broadening the topic, the definition of a cadastral plot is worth mentioning, which according to the ordinance of the Land and Building Records (pl.: EGiB) is a continuous land area, located within a boundary, unified in legal terms, separated from the surroundings by boundary lines. It’s worth noting that in the case of the cadastral plot definition there is no mention of a separate object (right) of property or perpetual usufruct, as compared to the property definition. That means one owner/holder of perpetual usufruct can own several cadastral plots that are a single property, but a case when one cadastral plot is considered as several properties will never take place.
To broaden the definition of a property, in which the leading principle is the separate object of property, we have to look at its definition in the Article 24.1 from the Act on land registry and mortgage of 06.07.1982 (pl.: Ustawa o księgach wieczystych i hipotece), which says that for each property there is a separate land registry, unless there is a special provision that says otherwise. The cited fragment of the Act mentioned above tells us that there are as many properties, as there are land registers. A case when one owner has 100 cadastral plots, for which there are 10 separate land registers (one registry for e.g. 10 cadastral plots) can take place though. If we define a property according to the literal definition from the Civil Code, we will be dealing with a single property, because it is a single object of property owned by a single person. However, according to the Act on land registry and mortgage, we will have 10 properties because that’s how many were separated in the according Land and Mortgage Register Court. This discrepancy has been a contentious issue for many civilians, judges and publicists connected with the civil law for many years. The final doubts about the correct definition of a property were resolved by the judgment of the Supreme Court (pl.: Sąd Najwyższy) of February 26th 2003 – II CKN 1306/00 concluding that there are as many properties, as there are land registers because – according to Article 24 from the Act on land registry and mortgage – for each property there is a land registry, unless there is a special provision that says otherwise.
The basic map won’t always tell you the truth
Types of boundaries, their hierarchy and value
Every one of us associates property boundaries with lines on a map established by an authority. When we hold a physical map, generally a building record map or a basic map, we think that everything sketched on it reflects the proper land state. Unfortunately, it’s not always like that. To determine whether the boundary aligns with the lines on the map established by an authority, it’s best to consult an experienced certified geodesist, who has a grade 2 professional certification in the field of geodesy and cartography (demarcating and dividing properties (lots) and preparing the documentation for legal purposes).
When we want to differentiate between the types of boundaries, you can say that in the Polish legal system we can encounter the following types:
– cadastral plot boundaries (pl.: granice ewidencyjne)
– boundaries defining the legal state of a property
Boundaries recognized in the Land and Building Registry database (pl.: Ewidencja Gruntów i Budynków) run by district mayors, can be called cadastral boundaries when:
– they haven’t been determined before as a result of geodetic works, and the boundaries were entered into the Land and Building Registry database as a result of the vectorization of cadastral maps and the first sketches of the holdings.
– the boundaries were recognized in the Land and Building Registry database based on the performed, direct geodetic measurements, as a result of which the state on the ground was measured on the same day the measurements were performed, but no protocol that determines the boundaries was made based on these works.
Boundaries determining the legal state of the property, often incorrectly called boundaries according to the legal state (pl.: granice wg stanu prawnego), are plot/property boundaries for which an according administrative or civil procedure completed with a final administrative decision or a lawful court decision was carried out before determining the boundaries. Using the term boundaries according to the legal state is some sort of incorrect mental shortcut, which doesn’t exist in Polish law. However, using the term boundaries determining the legal state of the property is correct and is mainly a result of an adequate legal act (administrative decisions or court decisions), which in a constitutive (legislative) way determines the boundaries, and the geodetic documentation prepared for those cases specifies the method of determining the boundaries.
When is this information useful?
We will encounter the case of boundaries determining the property’s legal state most often in the following procedures:
– administrative in cases of:
– dividing properties
– combining and dividing properties
– combining and replacing grounds (pl.: scalenie i wymiana gruntów)
– property demarcation
– determining the shoreline
– modernizing land and building registers, or performed in earlier years renewal of the land register survey, on which determining the cadastral plot boundaries took place.
– civil in cases of:
– property demarcation by court
– property co-ownership abolition
– inheritance division that includes property division
If there is an unambiguous geodetic-legal documentation (technical report) accepted into the National Geodetic and Cartographic Resource (pl.: państwowy zasób geodezyjny i kartograficzny) for the abovementioned procedures, which allows clear recreation of the boundaries determined in the mentioned procedures, there is an option of recreating the boundaries on the ground that determine the property’s legal state if they faded, were destroyed or the ground was used incorrectly.
The situation gets complicated when there is no geodetic documentation for the legal acts that authorize the procedures mentioned above, or when the existing documentation is insufficient for correct and unambiguous boundary recreation. In that case the only and the legally provided solution is repealing and annulling the law acts (administrative decisions, court decisions) that approve the boundaries and perform the procedure again, basing on the existing legislation. However, such situations rarely occur, they are legally complicated, expensive and often earnestly replaced by e.g. the procedure of determining boundaries arising from the Land and Building Registry (pl.: EGiB) ordinance, or incorrectly determining the boundaries in accordance with Article 39 from the Geodetic and cartographic law Act (pl.: Prawo geodezyjne i kartograficzne) of 17.05.1989.
If we compare cadastral plot boundaries and boundaries determining a property’s legal state, the latter are uncompromisingly true, certain and are a determinant for all further administrative and court procedures and for correct construction work completion in investment processes. Boundaries determining the legal state are always and in any case superior to cadastral plot boundaries. We can also say that every boundary determining a property’s legal state is at the same time a cadastral plot boundary, because same way as cadastral plot boundaries they also are (should be) demonstrated in the Land and Building Registry database run by a district mayor. The above relation does not occur in the case of cadastral plot boundaries in relation to boundaries determining a property’s legal state.
Another thing distinguishing between the boundaries is the fact that boundaries determining a property’s legal state should always be subject to the boundary marker restoring procedure or the procedure of determining boundary markers in accordance with the Geodetic and cartographic law Act, while cadastral plot boundaries will be determined most often in accordance with the Land and Building Registry ordinance or the Geodetic and cartographic law Act. There are, however, cases when cadastral plot boundaries are also subject to determining boundary markers, which doesn’t change their value.
Methods of determining boundaries
When we hire a geodesist to determine the boundaries, a lot of us think that said geodesist takes a map given to him and determines the borders for us – nothing further from the truth. We need to know that conducting the national geodetic and cartographic resource on a district level also is a responsibility of district mayors (presidents of cities with district rights).
In a Geodesy and Cartography Department, which is most often located in every District Authority Office (pl.: starostwo), there are documents about boundaries with different values, quality and possibility of recreating or determining the boundary lines, which are downloaded by a geodesist when reporting a geodetic work. At the moment of receiving the commission, a geodesist most often doesn’t know what kind of work he’ll need to do in order to correctly and legally perform the procedure of marking the boundaries on the ground. In the Polish legal system there is no single “procedure” of marking the boundaries on the ground. There at least a few, and their selection depends on the geodetic-cartographic documentation received by a geodesist from an authority, and also on his knowledge and experience.
In order to mark a boundary on a ground we can:
– demarcate the property in accordance with the geodetic and cartographic law Act (Articles 29-38), which determines the boundaries by determining the position of boundary lines and points, fixing those points using boundary marks on the ground and preparing the according documents. Demarcation of those properties is an administrative procedure performed by a mayor or a city president. In this case the geodetic work is done by a geodesist authorized by an authority on the case.
– restore boundary markers or determine boundary points based on the Article 39 of the geodetic and cartographic law Act, which is a technical activity performed by an authorized geodesist, it is not an administrative procedure. Restoring boundary markers or determining boundary points can be done only if the boundaries have been determined before and the boundary markers were destroyed, moved or faded, and also if there is an unambiguous geodetic-cartographic documentation allowing for boundary markers location reconstruction.
– determine cadastral plot boundaries according to the Land and Building Registry ordinance (§37-39), in the case when there is no geodetic documentation or the existing one is unreliable. This procedure isn’t an administrative procedure either, it is however a commissioned technical activity performed by an authorized geodesist.
– determine the shoreline in accordance with the Water resources law Act of 18.07.2001 (Articles 14-15b) regarding determining the correct area occupied by inland surface waters and internal waters. It’s an administrative procedure, conducted by the authorities laid down in the Act, most often by district mayors.
As you can see there are quite a few procedures. Each of them has its pros and cons, and briefly describing all of them would take a few good pages of explaining and presenting further knowledge and practical and legal loopholes to the reader. The procedure for marking the boundaries on the ground is not picked by a geodesist on the basis of selection or making the work effortless, because one procedure is easier than the other. Such situations don’t exist. Each of the legal forms of determining the boundaries requires the geodesist to adjust to the situation, and most importantly to the documents concerning the boundaries received from an office.
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Author: Adrian Hołub
Translation: Julia Pająk
Measure it soon!