Łukasz Dąbrowski, interviews

Łukasz Dąbrowski: Consider a chimney easement for Christmas Eve

Litigation Portal: Everyone looks forward to a visit from Santa Claus, but no one seems to bother signing a proper agreement with him. Is Kris Kringle entitled to trespass on other people’s property without any contractual consent?

Łukasz Dąbrowski: He really shouldn’t. Property rights, including the right to quiet enjoyment, are generally held to be inviolable. For Santa to alight upon the roof of someone else’s house and slip down the chimney, or enter their abode through some other route of ingress, may be held to constitute an infringement of the owner’s right to quiet enjoyment. It is important to bear in mind in this respect that it is not just civil liability that comes into play. Without the knowledge or consent of the rightful owner, St. Nick simply enters another person’s property. For this he could be hauled before the court on criminal charges, such as trespassing, as well as breaking and entering. While the purpose of his visit, namely to deliver presents, differs from an ordinary case of burglary, and the court would take that under advisement as a mitigating factor, nonetheless the whole issue should be dealt with in a lawful manner.

Given the function that Santa performs, shouldn’t he hold some specific authorisation?

That is certainly an approach that should be considered. From the nature of his duties, authorisation for Claus and his team could be limited to the evening hours of 24–25 December, meaning that no excessive burden would have to be imposed on homeowners. Given what we know of Santa’s modus operandi, one solution would be to issue him an easement restricted to landing on the roof, with a separate easement authorising him to enter the dwelling through the chimney. But this immediately raises other problems of both a legal and technical nature, because the Polish building code probably would not permit issuance of an occupancy permit covering chimneys with specifications enabling passage of the rotund figure of Claus.

Another problem, which is even more difficult to address, concerns individuals residing in blocks of flats, where the residential units are not equipped with chimneys certified for release of fumes, ash and other post-combustion particles, but only ventilation shafts that are much smaller in circumference. More and more apartment-dwellers seem to be installing chimneys, apparently for the very purpose of enabling entry by Santa. Again, for technical and legal reasons, such actions are ill-advised. Firstly, chimneys of this type are typically not installed in compliance with the building code, because linking the chimney exhaust to the system of ventilation ducts creates a fire hazard. Secondly, Santa would still have to pass through a narrow ventilation shaft at some point, which defeats the whole purpose of the unlawful alterations carried out by the owners of these residential units.

One way or another, apart from the issue of establishment an easement for delivery of toys, due consideration needs to be paid to the issue of adapting Polish residential units to meet the technical specifications that would be suitable for St. Nick.

How would one go about establishing an easement of this type?

We may imagine that as a common carrier of gift packages, Santa could assert a claim for establishment of such an easement with respect to every residential structure equipped with a chimney.

By the same token, any homeowner interested in regular annual receipt of such presents should be able to establish a servitude against his or her own real estate for this purpose.

Another approach we could consider would be a class action brought by all residents of the country, naming Santa Claus as a defendant, demanding that the court establish a servitude enabling transmission of presents via their chimneys. There is an open question, however, concerning which court would have jurisdiction to rule on establishment of the servitude, or to resolve any related disputes that might arise in the course of performance. Perhaps the International Tribunal for Presents and Well-Wishing?

This approach would probably not be effective in forcing Father Christmas to pay us a call, but at least we would feel confident, from a legal perspective, that we had done all we could to facilitate a visit.

That still leaves unresolved the issued we already discussed concerning adaptation of certain units to enable entrance via traditional ingress.

Should homeowners be worried that Santa will only visit homes that have established a servitude in his name?

Clearly that is a concern. If and when this practice becomes common, anyone who fails to establish a servitude for Christmas Eve would bear the risk that at some point Claus would become accustomed to the convenience of entering chimneys built to accommodate his girth, with no threat of legal ramifications, and, in mortal terms, would simply blacklist homeowners who fail to bring their units into compliance with the new standard.

Fortunately, under the current state of the law, all it takes to assure that Santa drops in is always to remain on your best behaviour.