dr Radosław Wiśniewski | In Principle

On the residential construction market in Poland, currently dominated by real estate developers, housing cooperatives can begin building starting 1 March 2023, when the new Housing Cooperatives Act enters into force, introducing a framework for their activities and providing incentives for such grassroots construction initiatives.

The government’s draft reform of perpetual usufruct in Poland focuses on changing the rules and method for determining the price for sale of a property to its perpetual usufructuary. Additionally, perpetual usufructuaries are granted a claim to acquire the property they hold. This is part of the process of phasing out perpetual usufruct entirely.

Effective as of 1 July 2022, the new Developers Act expands the scope of bank oversight of development ventures before paying out to the developer the funds due for a given phase of the project. But the regulations are imprecise, and it is unclear whether the bank must redo the audit when the buyer has made a late payment of funds into an open housing escrow account.

Many investors and their lawyers consider property restitution, or as we call it in Poland, reprivatisation, to be a purely historical phenomenon. The aim of this article is to analyse if it is true and whether restitution claims are completely irrelevant to real estate investments in Poland.

Dr Radosław Wiśniewski explains the problem of claims by pre-war property owners (and most often their heirs), which must be taken into account when purchasing real estate and pose a risk for transactions.

The provisions of the Administrative Procedure Code amended on 11 August 2021 regarding the time limits for invalidating administrative decisions or finding that they were issued unlawfully will come into force on 16 September 2021. What are the real consequences of this amendment? They seem inconsistent with the pronouncements of Poland’s highest state authorities.

It is often assumed that a forced share of an inheritance is only valid if the succession is based on a will. But the Polish Civil Code does not preclude heirs from seeking a forced share when succeeding under the code. This applies primarily to situations where the testator gave away significant portions of his property or made a specific bequest of them.

Amended regulations governing claims by former owners under the Warsaw Decree entered into force on 20 October 2020. Consequently, the only form of reprivatisation in Warsaw admissible in practice will be damages pursued through complicated, time-consuming and costly judicial proceedings, while a large portion of claims will be extinguished without compensation.

In judgments dated 22 May 2019, the Province Administrative Court in Warsaw issued its first extensive ruling on the condition of possession under the Warsaw Decree. The court held that this condition applied only to the legal successors of the prior owner of the real estate and was a condition for effective filing of a decree application, not granting of the application. And after 1946, this condition became irrelevant.

When assessing the post-war legal status of buildings erected on land subject to the Warsaw Decree, there is currently greater focus on the circumstances surrounding wartime destruction of buildings and the fact that decree-related proceedings are ongoing. This is intended to take away or restrict ownership title to “budynki piątkowe” – buildings fulfilling requirements under Art. 5 of the Warsaw (Bierut) Decree. Meanwhile, the structure of a “decree building” is a refined legal concept that needs to be viewed in the context of laws and case law in effect at the time.

Recent media reports have claimed that a bill being considered by the US Congress would allow Jewish organisations to seek compensation for so-called heirless property and make other claims under the 2009 Terezin Declaration. While such fears are entirely imaginary, they represent a good opportunity to examine the Terezin Declaration and the state of its implementation in Poland.

The issue of Jewish heirless property is the most controversial aspect of the debate over finding a comprehensive regulatory solution for reprivatisation in Poland. The general legal principle calling for reversion of property to the state (escheat) if the owner dies without heirs is of little practical assistance in these matters.