Perpetual Usufruct in the Light of Professor Jerzy Ignatowicz’s Discussion

Abstract

In his critical analysis of the issues of perpetual usufruct, Professor Jerzy Ignatowicz posed
three basic questions in this respect. The first question concerns the purposefulness of maintaining
the perpetual usufruct right or a similar property right in a market economy. Secondly, if the
answer to the first question is positive, the author discusses the purposefulness of replacing the perpetual
usufruct right with a similar construction. Thirdly, if it is legitimate to maintain the perpetual
usufruct in the Polish system of law, he suggests a discussion on the form of modifying the property right in question, so that it becomes more adapted to the current social and economic conditions than
so far, at the same time indicating a series of questions in this respect, addressed to the legislator.
Professor Ignatowicz recognises the need to maintain the right of perpetual usufruct or a similar
right. In noticing the drawbacks of the right in question, he stresses the importance of stability in the
area of property law, and consequently opts for maintaining the perpetual usufruct right, yet at the
same time stressing the necessity for its modification.
Despite numerous amendments, to a large extent consistent with Professor Ignatowicz’s proposals,
the perpetual usufruct right requires a number of changes to adapt this right even more than
so far, to the changed conditions of management, also in the area of fiscal property.
The postulated changes aim towards the independence of the perpetual usufruct from administrative
law regulations, its popularisation, not limiting its function to its otherwise limited aims, the
regulation of neighbourly relations between holders of perpetual usufruct and proprietors, the question
of the protection of the perpetual usufruct right, the purposefulness of maintaining the hitherto
solutions with regard to the status of buildings and appliances placed on the leased land or the sale of
the right of perpetual usufruct, including the question of the entry in the land and mortgage register
upon the transfer of perpetual usufruct, and particularly the most delicate issue of the annual fee to
be paid by the holder of perpetual usufruct, or maintaining the statutory right of pre-emption of perpetual
usufruct for the benefit of the gmina (municipality). Despite the lapse of time, the proposal to
introduce in the Civil Code the reference to the regulations on the content and exercise of ownership
accordingly applying to the perpetual usufruct, is still valid.
Professor J. Ignatowicz’s approach with regard to perpetual usufruct is a model of conduct of
a scholar who critically examines reality, yet at the same time searching for positive solutions to
problems. Professor supports evolutionary rather than revolutionary changes. Such approaches deserve
to be popularised and supported as against the emerging tendencies to shift the legal discourse
from the substantive level to the ideological one.