WHETHER REPRIVATISATION REALLY IS „WILD” - OR, IN OTHER WORDS, ABOUT THE PROBLEM OF PROPERTY SEIZURE 9 August 2020
In recent years, there have been recurring comments in public opinion - with varying degrees of intensity - about so-called „wild reprivatisation”. Leaving aside the political aspects of this problem and the intricacies of the many cases occupying the headlines from time to time, it is worth drawing attention to the issue of the very relationship between the passage of time and the acquisition and loss of property ownership.
Although it may seem surprising (not to say shocking) that, despite the lapse of 40, 50 or 60 years, the State Treasury or local governments, in continuous possession of a given property, have to return it to the owners' heirs, this issue is no longer so puzzling when one takes a closer look at the problem of the institution of acquisitive prescription.
Pursuant to Article 172 of the Civil Code. § 1. a possessor of real estate who is not its owner acquires ownership if he has held the real estate continuously for twenty years as a spontaneous possessor, unless he obtained possession in bad faith (zasiedzenie). § (2) After the expiry of thirty years, the possessor of real property acquires its ownership, even if he obtained possession in bad faith.
The key to acquiring ownership of realty is therefore: (i) the passage of time and (ii) spontaneous possession. In this type of disputes, the issue of lapse of time is, as a rule, not a problem - hardly any applicant decides to initiate a case of acquisitive possession „prematurely” (although practice sometimes verifies this premise as well). The main doubt therefore concerns this spontaneous possession [1].
In the cases conducted by the Law Firm, it has repeatedly been possible to demonstrate that even half a century of ownership of a given property by, for example, the Municipality of Krakow has not led to a change in ownership.
This is due to the fact that this „possession” of the property by public entities was very often only a lease of the [2], and not possession and, as such, cannot lead to acquisitions. In the case of such tenements, the Municipality did not act as an owner, but only as a manager - limiting its activity to decisions on the allocation of premises, rental rates or conservative repairs. Moreover, often - explaining the lack of wider activity in more or less formal discussions - officials referred to the existence of some „mythical” foreign owners. Of course, the issue then arose in the course of the court case - e.g. as a result of the testimony of tenants appearing as witnesses.
As a result, these circumstances ruled out the possibility of establishing before a court that a public entity (e.g. a municipality) had acquired ownership of such real estate by way of acquisitive prescription. Also the creation of black lists or black books of real estate, in which real estate with an unregulated legal status is placed, does not help in proving the condition of possession as owner. Given that in a case of acquisitive prescription, the owner must prove that he had physical possession of the property and that he had the will to keep it for himself - the practices described above have the opposite effect.
In view of the above, it should be considered whether - instead of creating the said black books or raising claims about the „wildness” (injustice) of restoring these properties to the former owners and their heirs - one should consider what the real property owner should actually do, before proceeding to prove his rights in court, in order to demonstrate that the nature of his/her ownership has changed [3] and can currently be attributed ownership characteristics.
1 Article 336 of the Civil Code. The possessor of a thing is both the one who actually wields it as an owner (spontaneous possessor) and the one who actually wields it as a user, pledgee, lessee, hirer or having any other right which involves specific authority over another's thing (dependent possessor).
2 Article 338 of the Civil Code. Whoever actually wields the thing for someone else is a tenant; judgment of the SA in Łódź of 21 March 2018, ref. no. I ACa 940/17 From Article 338 of the Civil Code, it follows that tenancy differs from possession in that the tenant does not have the will to possess the thing for himself, but actually wields the thing for someone else (animus possidendi rem pro alieno, aniumus detendi). Leasehold also consists, in addition to the aforementioned element of will, of the actual possession of the thing (corpus), which manifests itself externally in the same way as possession.
3 See the decision of the Supreme Court of 26 March 2010, ref. III CSK 174/09: in order for there to be a change of tenancy into possession, the actual possessor of the thing must manifest in a manner perceptible to other entities (owner
and surroundings), a change in the manner in which the property is held, just as is the case when the nature of possession of a thing changes from dependent possession to sole possession.
In recent years, there have been recurring comments in public opinion - with varying degrees of intensity - about so-called „wild reprivatisation”. Leaving aside the political aspects of this problem and the intricacies of the many cases occupying the headlines from time to time, it is worth drawing attention to the issue of the very relationship between the passage of time and the acquisition and loss of property ownership.
Although it may seem surprising (not to say shocking) that, despite the lapse of 40, 50 or 60 years, the State Treasury or local governments, in continuous possession of a given property, have to return it to the owners' heirs, this issue is no longer so puzzling when one takes a closer look at the problem of the institution of acquisitive prescription.
Pursuant to Article 172 of the Civil Code. § 1. a possessor of real estate who is not its owner acquires ownership if he has held the real estate continuously for twenty years as a spontaneous possessor, unless he obtained possession in bad faith (zasiedzenie). § (2) After the expiry of thirty years, the possessor of real property acquires its ownership, even if he obtained possession in bad faith.
The key to acquiring ownership of realty is therefore: (i) the passage of time and (ii) spontaneous possession. In this type of disputes, the issue of lapse of time is, as a rule, not a problem - hardly any applicant decides to initiate a case of acquisitive possession „prematurely” (although practice sometimes verifies this premise as well). The main doubt therefore concerns this spontaneous possession [1].
In the cases conducted by the Law Firm, it has repeatedly been possible to demonstrate that even half a century of ownership of a given property by, for example, the Municipality of Krakow has not led to a change in ownership.
This is due to the fact that this „possession” of the property by public entities was very often only a lease of the [2], and not possession and, as such, cannot lead to acquisitions. In the case of such tenements, the Municipality did not act as an owner, but only as a manager - limiting its activity to decisions on the allocation of premises, rental rates or conservative repairs. Moreover, often - explaining the lack of wider activity in more or less formal discussions - officials referred to the existence of some „mythical” foreign owners. Of course, the issue then arose in the course of the court case - e.g. as a result of the testimony of tenants appearing as witnesses.
As a result, these circumstances ruled out the possibility of establishing before a court that a public entity (e.g. a municipality) had acquired ownership of such real estate by way of acquisitive prescription. Also the creation of black lists or black books of real estate, in which real estate with an unregulated legal status is placed, does not help in proving the condition of possession as owner. Given that in a case of acquisitive prescription, the owner must prove that he had physical possession of the property and that he had the will to keep it for himself - the practices described above have the opposite effect.
In view of the above, it should be considered whether - instead of creating the said black books or raising claims about the „wildness” (injustice) of restoring these properties to the former owners and their heirs - one should consider what the real property owner should actually do, before proceeding to prove his rights in court, in order to demonstrate that the nature of his/her ownership has changed [3] and can currently be attributed ownership characteristics.
1 Article 336 of the Civil Code. The possessor of a thing is both the one who actually wields it as an owner (spontaneous possessor) and the one who actually wields it as a user, pledgee, lessee, hirer or having any other right which involves specific authority over another's thing (dependent possessor).
2 Article 338 of the Civil Code. Whoever actually wields the thing for someone else is a tenant; judgment of the SA in Łódź of 21 March 2018, ref. no. I ACa 940/17 From Article 338 of the Civil Code, it follows that tenancy differs from possession in that the tenant does not have the will to possess the thing for himself, but actually wields the thing for someone else (animus possidendi rem pro alieno, aniumus detendi). Leasehold also consists, in addition to the aforementioned element of will, of the actual possession of the thing (corpus), which manifests itself externally in the same way as possession.
3 See the decision of the Supreme Court of 26 March 2010, ref. III CSK 174/09: in order for there to be a change of tenancy into possession, the actual possessor of the thing must manifest in a manner perceptible to other entities (owner
and surroundings), a change in the manner in which the property is held, just as is the case when the nature of possession of a thing changes from dependent possession to sole possession.