Wie heeft de leiding? : de eigendom van kabel- en leidingnetten

Abstract

In 2003 the Supreme Court confirmed in a ruling that cable and pipeline networks are immovable properties and also that the authorized constructor of a network is the legal owner of the network if the network is constructed in a parcel which is owned by someone else. This ruling is transposed into national law. On February 1, 2007 a new article was introduced in the Civil Code. In the second paragraph of Article 5:20 is regulated that a network that is being placed, in, on or above the subsoil of others, belongs to the authorized constructor of that network or its predecessor. Authorized construction may result from private law (building lease, contract) or public law (obligation to consent). The parcel owner – who is not the constructor of the network – is not the owner of the network on the bases that the network is durably united with the parcel. Determining the real status of networks has also resulted in the fact that a legal transfer of ownership of a network has to be registered in the public registers. Through amendment of Article 3:17 of the Civil Code the construction and removal of a network itself is also registrable as a fact. In the new ownership rule two key concepts are introduced, namely the concept of ‘network’ and the concept of the ‘authorized constructor’. With respect to ‘network’, the size of a network is determined by the legal description in specific (sector) regulations. In the absence of such a specific description, the size is determined by the ideas in practice. The network with all its components will be considered as one factual and functional unit. For acquisition of ownership of a network the construction of the network must be authorized by the parcel owner. In practice it turned out that it was difficult for the intended owner to deliver evidence which sufficiently shows that he or his predecessors were authorized to construct the network. To solve this problem an amendment is proposed on the basis of which the person who has acted as an owner on February 1, 2007 may register the ownership of the network on his name in the public registers. Although the new ownership rule, including the proposed amendment, has clarified the question about the ownership of networks, several new questions have arisen. For instance the question whether a supplement to the ownership rule is necessary so that besides the ownership also the use (construction, maintenance) of the network is regulated. Another question is whether the new ownership rule applies to networks that are constructed in the subsoil that is owned by the constructor himself. In this thesis these questions will be discussed