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Summary of articles in English.

Ownership as the prerequisite for the entitlement to claims arising from the Warsaw decree

Summary

Author: Kamil Zaradkiewicz
The article presents the issue connected with the application of the mechanism of real property communalisation in Warsaw, raising a great deal of doubt in literature and diversely assessed in the case-law. The issue concerns the requirement adopted by the communist authorities in the decree of 26 October 1945 on ownership and usufruct of land on the area of Warsaw (so called
the Warsaw decree) pursuant to which persons applying for (former) heritable building rights of superficies, and currently the right of perpetual usufruct were possessors of their former
real properties. The decree communalised (nationalised) all land plots within Warsaw in order to rebuild the city destroyed by the war. A person fulfilling the condition of possession or their legal representative could have submitted within 6 months from taking possession of the land by the commune a request for establishing the right allowing the use of the real property compulsory taken over. Granting the possibility to submit requests for establishing the right to the land was to enable its former owners to take part in the reconstruction of the capital city. Granting the right involved essential obligations, for example in the form of the construction of a building or other facility as well as their maintenance in an appropriate condition. The main controversy concerns the fact whether the possession order as the condition for granting the right to use the land by the commune relates to former owners or only their legal successors (including mainly their heirs). If the interested party did not own the real property, they could not have claimed the right to establish the right to the land in an efficient way. The requirement concerning the ownership as the possibility to exercise efficiently the actual control over the real property was assessed under the rules of the Napoleonic Code applicable in the central parts of Poland, whereas later under the new Polish property law of 1946. The ownership as the condition for acquiring the right to the land was aimed at establishing the possibility to co-participate in the reconstruction of buildings destroyed as well as allowed the determination whether the persons entitled to the land were alive or had died during the years of war turmoil (in particular in the Holocaust).
The article presents arguments for assuming the necessity to analyse the existence of the ownership lying with former owners (and not only with their legal successors).
Nowadays, the problem is also essential due to practical reasons as requests submitted
in the 1940s are being still currently processed, and failure to prove in that time
the title to the land by requesters applying for granting the relevant right results
also today in the necessity to reject establishing the right of perpetual usufruct.


Keywords:
communalisation, nationalisation, ownership and title to the real property, real properties in Warsaw, right to the land, concealment, Napoleonic Code.

Warsaw’s Real Estate Reprivatisation Commission on damages and compensation

Summary

Author: Anna Dalkowska
The construction of compensatory liability of the Capital City of Warsaw of absolute and guarantee character for effects of faulty reprivatisation of Warsaw’s real estate constitutes a specific legal form. It was introduced under Articles 33 and 34 of the Act about specific rules for removing legal effects of reprivatisation decisions concerning the real estate in Warsaw which were issued contrary to the law . The compensatory decision of the Warsaw’s Real Estate Reprivatisation Commission settles the civil-law and pecuniary compensatory claim concerning damage resulting from unlawful reprivatisation decisions.


Keywords:
damages, compensation, Warsaw’s real estate, reprivatisation, tenant

Notion of an appropriate access to a public road or farm buildings pursuant to Art. 145(1) of the Polish Civil Code

Summary

Author: Michał Warciński
The performance of the title to the land pursuant to its social and economic purpose requires, as a rule, an appropriate access to a public road as such access constitutes one of the basic needs of each real property owner. However, the location or configuration of the real property may limit or even exclude it. Granting the easement of the necessary road lies within the competencies of legal institutions allowing an appropriate access to a public road (Art. 145 of the Polish Civil Code). This institution allows the establishment by court of the real property easement ensuring the easement of access even against the will of the owner of the potentially encumbered real property. The grounds to establish such easement include lack of an appropriate access of the real property (or farm buildings) to a public road. The article analyses the case-law and literature concerning the interpretation of the notion of an appropriate access to a public road; the well known concepts were systematised and new interpretation variants were proposed in the scope of some aspects.


Keywords:
Appropriate access, public road, farm building, real property easement,
easement of access

Openness of examination proceedings before the Warsaw’s Real Estate Reprivatisation Commission

Summary

Author: Przemysław Ostojski
The article concerns the openness of examination proceedings before the Warsaw’s Real Estate Reprivatisation Commission, which constitute specific procedure in relation to general administrative proceedings governed by the provisions of the Polish Code of Administrative Procedure. Through a dogmatic analysis, I have proved that these proceedings are governed by rules corresponding not only to the internal openness – typical for administrative proceedings, but also external openness – which constitutes a sort of novum, creating a high standard of transparency in administrative proceedings. The external openness in examination proceedings before the Commission means the introduction of an open trial, the images and sounds of which, upon the chairperson’s consent, can be recorded by the mass media. Moreover, the legislator also ordered to publish decisions concluding proceedings in the Bulletin of Public Information on the website of the office supporting the Minister of Justice. In practice, a variety of information about the proceedings, including notifications, notices, resolutions and decisions, is published in the Bulletin.


Keywords:
administrative proceedings, rules governing general administrative proceedings, access to files, transparency principle, openness principle, reprivatisation, Warsaw’s real estate, decree proceedings, Warsaw’s Real Estate Reprivatisation Commission

Deduction of VAT from investments carried out on land of local government units

Summary

Author: Paweł Daniel
The aim of the article is to characterise problems of deducting VAT in the situation of specific expenditure made by local government units connected with carrying out investments.
The considerations lead to the conclusion that local government units are entitled to deduct VAT from investments carried out thereby on their real estate in the situation where expenditure made is connected with business operations performed thereby. While making deductions, they are obliged to apply pre-factor specified in the Ordinance of the Minister of Finance, although
 it is also possible to apply other pre-factor if it takes into account the specific nature of business operations in a sufficiently clear way and allows an objective determination of proportions between taxed and untaxed activities in this area.


Keywords:
local government units, VAT, investments in real estate, administrative courts

Deduction of VAT from investments carried out on land of local government units

Summary

Author: Paweł Opitek
The article describes possibilities to apply the blockchain technology in the real estate market. Firstly, the article presents the nature of an indisputable chain of blocks and Initial Coin Offering, smart contracts and digital tokens connected therewith. Certain phenomenon results from this perspective as “smart contracts” consist of a numerical code and provisions combined into an indissoluble whole. The further part of the article shows what the land register, sale and rental of premises as well as the real estate management with the application of the blockchain may look like. New forms of investing which use smart contracts and tokens constitute an interesting issue. As no software is free from exposure to threats and human activities are burdened with the risk of error, the barriers hindering the application of the new technology were determined. The summary of the article is a brief assessment of advantages resulting from the blockchain and real possibilities of their implementation in the domestic market.

Keywords:
Blockchain, smart contracts, tokens, real estate market, land register, real estate sale contract, rental, sale of real estate, tokenisation.


Vacant inheritance, landless inheritance, and claims from the Warsaw decree (part I )

Summary

Author: Kamil Zaradkiewicz 
In the reprivatisation procedures, conducted in Polish courts and before public administration bodies following the restoration of independence, it is increasingly frequently necessary
to determine the person currently holding the right to restitution or compensation due to the death of the past owners. This means a necessity of determining the legal successors to people who held the right to nationalised (communalised) property, including – for individuals – their inheritors. Due to the principles of the intertemporal law applicable to people deceased during or immediately following the conclusion of World War II, it is connected with the necessity to apply the principles of then-current inheritance law. These will therefore be – in the western and northern regions of Poland, applicable provisions of the German civil law of 1896 (BGB), in the southern regions – the Austrian code of civil procedure of 1811 (ABGB), while in the central regions – the Napoleonic Code of 1804. The latter applies to the area of application of the decree dated 26 October 1945, which provides for the communalisation of land in Warsaw (on the ownership and usage of land within the boundaries of the capital city of Warsaw, so called Bierut’s Decree). This paper comprising two parts presents the basic solutions that refer to the institution of heirless inheritance (in the Napoleonic Code, also in ABGB), and so called vacant inheritance (les successions vacantes), which is a solution specific to French law, adopted in the territory of the Russian partition and which remained in force until 1947. The second part of this paper (in the next issue of the quarterly) will be devoted to an analysis of the consequences of deeming an inheritance to be vacant under the erstwhile art. 811 of the Napoleonic Code, and to the provisions of Polish intertemporal law that applied to this solution following the standardisation of inheritance law after 1946.


Keywords:
reprivatisation, inheritance law, heirless inheritance, vacant inheritance


Warning entry as a form of protection of verification actions before the Verification Commission

Summary

Author: Anna Dalkowska
The warning entry, as a procedural form of administrative protection of verification actions serves an important role not only for the purpose of ensuring a proper course of the verification actions undertaken by the Verification Commission. It is an instrument of protection of private and public interests, and a warranty of implementation of the constitutional principle of rule of law. The verification action warning is a separate legal institution from the warning of real property legal status inconsistency with factual status, defined in art. 8 of the land and mortgage register and mortgage act. The protection is established based on a decision of the Verification Commission, issued before an examination proceedings is initiated, then implemented in a land and mortgage register proceedings. It does not waive the credibility of the land and ortgage register and does not rebut the presumption of consistency of the legal status revealed in the register with the factual legal status. The consequences do, however, occur when the examination proceedings is initiated. Fulfilling a warning function, the verification action warning does not lead to acquiring a subjective right or changing the material legal situation, does not exclude or limit the disposal of the right against which it is directed. The structure of the examination action protection does not contradict the constitutional principle of ownership protection, as it does not devoid the right bearer of the ability to exercise the right entered in the land and mortgage register, and therefore does not cause the consequences connected to the existence of the protection for the bearer. It implements the principle of protection of third party rights by providing these parties with information and a signal of the existing hazard to the validity of the legal status of the real property and the likelihood that the reprivatisation decision was issued with an infringement on the law. It constitutes an element of protection of the public interest in matters concerning Warsaw real property reprivatisation and an axiological basis for the land and mortgage register system disclosure.

Keywords:
reprivatisation, warning entry, verification actions, protection, principle of public credibility of land and mortgage registers

Landscape expropriation

Summary

Author: Tomasz Bąkowski
The regulations of the so-called 2015 landscape act enabled municipal councils to pass resolutions specifying the terms and conditions for locating small architecture objects, bill-boards and advertising devices as well as fences, their dimensions, quality standards and types of construction materials from which they can be made. One of the elements of the content of such a resolution is to determine the terms and time of adjustment of the objects, fences and advertising boards and devices existing on the day of its entry into force to the introduced prohibitions, rules and conditions. This in turn gives the opportunity to eliminate from the legal turnover the rights obtained in accordance with the then applicable law, resulting for example from the decision on the building permit. Such a solution is in a way similar to the so-called expropriation of a right that is acceptable in the current constitutional order. However, the legal construction of the “landscape expropriation” coined for the purposes of this article raises some fundamental reservations. Firstly, the consequences of the adopted resolutions are
in contradiction with the constitutional principle of non-retroactivity of law, of which derogation is possible, but it must be justified by relevant reasons, such as protection of values appreciated higher than the certainty of legal turnover or trust in public authorities. Secondly, the abovementioned deprivation of rights acquired in accordance with the law in force occurs without a fair compensation required by the Constitution of the Republic of Poland. Thirdly, the mechanism of eliminating the norms derived from legal turnover, reconstructed from
the content of an administrative decision by subsequent higher-level norms, by which in this case we mean the norms resulting from the analyzed resolutions, which are acts of local law, is challenged by the doctrine of law, the more so that the derogation of these derived norms
has the characteristics of implied derogation.


Keywords:
expropriation of right, expropriation without compensation, retroactivity of law, landscape act, municipal council landscape’s resolution

The legal situation of real estate in the transformation process of companies of the Treasury to cultural institutions

Summary

Author: Katarzyna Chałubińska-Jentkiewicz
Introduction into the legal system of provisions enabling the transformation into state-owned cultural institutions of one-person State Treasury companies operating with the use of cultural goods was dictated by reasons of protection of the public interest. The Act of 15 January 2015 on the transformation of sole-share State-owned companies operating with the use of cultural goods into state-owned cultural institutions introduced a legal solution resulting from the need to secure property components in the form of national treasures owned by one-person State Treasury companies operating in the field of culture . The legislator decided that the optimal solution ensuring the protection of cultural goods and facilitating the activities of these entities in the field of culture will be the process of transforming single-person State Treasury companies operating with the use of cultural goods into state cultural institutions, which ensures universal succession, that is, the inclusion of all rights and obligations. These goods include also material heritage, that is, for example, real estate. However, the issue of ownership transformations in the case of real estate is often associated with the historical nature of the ownership change process of a given property, which in turn leads to the need for a separate individual analysis in each situation. In the article, I attempt to present this complex topic.
Keywords:
expropriation public interest, cultural institutions, universal succession

The principle of treating expropriation as an ultima ratio measure in light of the amendment to the real property administration act of 4 April 2019, imposing a time limitation on restitution rights

Summary

Author: Sławomir Pawłowski
The act of 4 April 2019 on the amendment of the real property administration act, which amends the r.p.a.a. in the field of restitution of expropriated property, among others, was essentially adopted to perform two decisions of the Constitution Tribunal (SK 39/15 and SK 26/14), which viewed certain heretofore solutions with criticism. The amendment act, which in addition to amending the unconstitutional provisions, also introduced institutions previously unknown to Polish expropriation legislation - the final date of submitting a request for restitution of an expropriate real property (art. 136(7)). The paper presents a thesis that an expropriated real property constitutes a „fixed-purpose” property, which means it may not be used for any other purpose than that specified in the expropriation decision or contract. Failure to complete this purpose, including its abandonment, means in fact that an unauthorised expansion of public resources occurred when utilising the realm of imperium.
Keywords:
property law, expropriation, expropriation contract, restitution of expropriated real property, final date

Legal conditions of setting the adjacent payment by communes

Summary

Author: Paweł Marek Woroniecki
The goal of the article is an estimation of legal provisions regulating the adjacent payment from the view of protection of finanacial interests of entities paying this payment. The legal ground for consideration are provisions included in the Property Economy Act of 21st August 1997 (consolidated text: Journal of Laws of 2018 item 2204 with later amendmets). For realization of the article’s goal, several detailed issues have been separated. In the first order the concept of the adjacent payment has been defined on the ground of the Property Economy Act (see article 4 point 11 of the Property Economy Act) and the essence of this payment in doctrinal approach has been presented. Afterwards issues connected with setting the amount of the adjacent payment and property value have been presented. In the last order procedural problems referring to fixing and paying the adjacent payment have been discussed. In summation, conclusions which are the evaluation of the adopted solutions have been formulated. The intruductory thesis telling, that legal construction of the adjacent payment contains mechanisms protecting finanacial interests of entities obligated to paying it has been confirmed. In particular solutions consist in establishing the maximum percentage rates for the adjacent payment (see article 98a item 1 the second sentence, article 107 item 1 the first sentence, article 146 item 2 the first sentence and item 2a of the Property Economy Act) and allowing the possibility of instalment remitting the adjacent payment (see article 147 item 1 and article 98a item 1 the fourth sentence of the Property Economy Act) have been recognized as accurate because they protect interests of entities obliged to remitting the adjacent payment. Moreover, one should stress the possibility of settlement of the adjacent payment by transferring of right to specified parcel of land (see article 98a item 4 and article 107 item 5 of the Property Economy Act). This solutions also has to be recognized as rational.

Keywords:
adjacent payment, commune, budget, territorial self-government, infrastructure


Real estate cadastral system and cadastral tax system legal and organisational conditions

Abstract

Author: Elżbieta Chojna-Duch
DOI: 10.5604/01.3001.0013.5916
 
Proposals to introduce a cadastral tax ("municipal tax") into the Polish tax system have a long history. The solutions that are currently proposed in the literature have a political subtext
and do not contain any substantive proposals for normative solutions, contrary to the model of the proposed draft laws package in the mid-nineties. Poland is a unitary state and it does not seem that there will be a need for a radical change of the state system. Local government units in Poland have a constitutionally guaranteed and protected wide scope of independence
This study presents and critically evaluates these contemporary proposals, at the same time points out the precondition for the change of the real estate tax regime – the need to finish the construction of the real estate cadastre system – the Integrated Real Estate Information System, which allows for the appraising of real estates and basing their value on it, and not only for tax purposes. Indeed, this system is a necessary but difficult prerequisite for the continuation of future real estate taxation reforms and would also serve the needs of many other public authorities by enabling communication between the existing public registers (including the CEIDG and the KRS). The introduction of a cadastral tax alone, the tax basis for which would be an updated and credible real estate value, also requires a number of new economic, sociological, functional as well as social and political studies to be carried out beforehand on the tax matters, in particular when taking into account the increase in the tax burdens and the relevant legal analyses of the proposed models of system solutions.
Keywords:
real estate tax, cadastre, Integrated Real Estate Information System, cadastral tax, stability of the public finance sector

Effective judicial protection in the light of the judgement of the CJEU of 29 July 2019, Alekszij Torubarov vs. Bevándorlási és Menekültügyi Hivatal, C-556/17

Abstract

Author: Przemysław Ostojski
DOI: 10.5604/01.3001.0013.5917
 
The article deals with the enforceability of the individual’s guarantee of an effective remedy
in administrative court proceedings, in accordance with Article 47 of the Charter. The text seeks to demonstrate the legitimacy of the position of the Court of Justice of the EU, which has taken the view that the considerations of protection of the individual’s fundamental rights require, in a case such as the one at issue, that an administrative court of a Member State, irrespective of the existence of legal grounds in its national legislation, should deliver a decision amending a decision of a public administrative authority. Unlike most European legal systems, Polish law does not provide for the possibility of a reform ruling in such a case, while taking into account all the factual and legal circumstances of the case ex nunc.

Keywords:
administrative judiciary, administrative court proceedings, European law, right to effective judicial protection, Charter of Fundamental Rights of the European Union, migration and asylum policy, asylum law

Protection of occupants’ rights vs. execution of the decision on adjudication of ownership

Abstract

Author: Artur Grajewski Paweł Dzienis
DOI: 10.5604/01.3001.0013.5919
 
The article deals with the enforceability of the individual’s guarantee of an effective remedy
in administrative court proceedings, in accordance with Article 47 of the Charter. The text seeks to demonstrate the legitimacy of the position of the Court of Justice of the EU, which has taken the view that the considerations of protection of the individual’s fundamental rights require, in a case such as the one at issue, that an administrative court of a Member State, irrespective of the existence of legal grounds in its national legislation, should deliver a decision amending a decision of a public administrative authority. Unlike most European legal systems, Polish law does not provide for the possibility of a reform ruling in such a case, while taking into account all the factual and legal circumstances of the case ex nunc.

Keywords:
cultural property, cultural heritage, national heritage, protection

Main issues related to the protection of historic real estate: topic outline

Abstract

Author: Kamil Zeidler
DOI: 10.5604/01.3001.0013.5918
The aim of the article is on the one hand to indicate and briefly characterise the main – although for obvious reasons not all – problems concerning the protection of historical monuments in Poland in general, and real estate monuments in particular, against the background of the general description of the cultural heritage protection law. These problems are already present when trying to define the object of protection; they are substantially related to the issue of social interest (often referred to as public interest or common interest) and come out in full light, in the process of applying the law, when dealing with the issue of too wide a scope of discretionary power of the historic monuments protection authority. On the other hand, and even more importantly, the aim here is to indicate the problems that must be taken into account when planning the necessary changes to the law on the protection of historical monuments, first of all the Act on the Protection and Care of Historical Monuments of 23 July 2003, which is often referred to as the „constitution for the protection of historical monuments in Poland”. Lack of reaction to negative events, including undertaking appropriate legislative actions, but also those aimed at improving the quality of law application by institutions for the protection of historical monuments, will often lead to irreversible and irreparable changes in the Polish national heritage.

Keywords:
cultural property, cultural heritage, national heritage, protection

The position of private residential buildings taken on the state administration in the period of the Polish People's Republic

Abstract

Author: Wojciech Federczyk
DOI: 10.5604/01.3001.0013.5920
 
One of the consequences of systemic changes that took place in Poland after the Second World War was the introduction of an administrative form of access to residential premises, regardless of who owned them. It should be remembered that in the communist system, state or common ownership was of paramount importance, and private ownership was barely tolerated. Many private residential buildings were therefore taken over by the state administration without formal deprivation of property. The subject of this article is a legal analysis and indication of legal and factual consequences for private buildings that have been taken over by the state administration. For, despite the passage of 25 years from the abolition of administrative law-related rules on the lease of premises, and the possibility of residential buildings on the state administration being taken over, there remains a situation in with municipalities manage many private buildings.
Keywords:
Keywords: housing policy, state administration on private residential buildings, management of another person's affairs without a mandate (negotiorum gestio), protection of property

Vacant inheritance, landless inheritance, and claims from the Warsaw decree (Part II)

Abstract

Author: Kamil Zaradkiewicz
DOI: 10.5604/01.3001.0013.5913
 
The second part of the article concerns the interpretation and application in the central parts of Poland of the provisions of the Napoleonic Code on vacant inheritances. The Code does not provide a definition of a vacant inheritance. The key to the interpretation of the provisions on the acquisition of vacant inheritances by the state is the term “is presumed to be" (a vacant inheritance) used in the former Article 811 of the Napoleonic Code (French: est réputée vacante, see the current Article 809 of the French Civil Code which omits the term "is presumed to be"). This indicates that, in the absence of suitable heirs, the law introduced a specific rebuttable presumption of a vacant inheritance, thus belonging to the state. Only after an appropriate period of time did the presumption turn into certainty, i.e. it resulted in the inability to invoke the inheritance title. In practice, this meant that thirty years after the time necessary to draw up an inventory of the inheritance and to consider (ad deliberandum), the inheritance ultimately fell to the State. The mechanism adopted in the Napoleonic Code made it possible, on the one hand, for the heirs to acquire the inheritance, which remained under the supervision of a trustee for the period when it was presumed vacant, and on the other hand, it prevented the existence of inheritances without a claimant, i.e. inheritances devoid of the persons entitled to take them over. In the post-war period, when the communist authorities passed subsequent legal acts concerning the provisions of the inheritance law, the deadlines for heirs to apply for inheritance changed. Ultimately, the legislator did not adopt the model of vacant inheritances in the regulations unifying the inheritance law on Polish lands since 1947; instead, a solution analogous to the one provided for in the German Civil Code of 1896 (BGB) was adopted. The "shortening" of the statute of limitations also influenced the assessment of the admissibility of further application of the provisions of the Napoleonic Code in regard to vacant inheritances during the period of the People's Republic of Poland regime (despite the existence of different inheritance law solutions).
Keywords:
Keywords: reprivatisation, inheritance law, heirless inheritance, vacant inheritance

Enforcement of the obligation to return the equivalent of an undue benefit

Abstract

Author: Anna Dalkowska
DOI: 10.5604/01.3001.0013.5914
 
The obligation to return the equivalent of an undue benefit is a special type of civil law monetary receivable resulting from the final and constitutive decision of the Commission
for Restitution of Warsaw Real Estates issued pursuant to Article 31 of the Act of 9 March 2017 on Special Rules for Removing Legal Effects of Decisions on Restitution of Warsaw Real Estates issued in Violation of the Law. Its implementation is one of the key tasks in shaping the rule of a lawful state, by eliminating the negative effects of Warsaw reprivatisation and compensating for damages that result from it. Receivables from the return of the equivalent of an undue benefit are enforced for the benefit of the Capital City of Warsaw; their final beneficiaries are entities that have suffered damage as a result of a reprivatisation decision. In accordance with the regulation, resulting from Article 31(5) of the Act on the Commission, its forced implementation takes place in the mode of administrative enforcement. The specificity of the analysed structure causes the creditor to assume a special role, which in the formal and legal sense is that of the Verification Commission, while in the material and legal sense that of the Capital City of Warsaw.

Keywords:
Keywords: responsibility, undue benefit, administrative execution, reprivatisation

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