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.
The amending act dated 17 September 2020 primarily addresses the rules for proceedings of the Commission for Warsaw Property Matters (under the Act on Detailed Rules for Eliminating the Legal Effects of Reprivatisation Decisions Concerning Warsaw Properties Issued in Violation of Law of 9 March 2017), which reviews the correctness of previously issued reprivatisation decisions. However, the amendment includes several articles addressed to regulations that are the basis for deciding reprivatisation claims not yet resolved under the Decree on Ownership and Usufruct of Land in Warsaw of 26 October 1945 (also known as the “Warsaw Decree” or the “Bierut Decree”). Since 2016, regulations governing the consideration of claims under the Warsaw Decree have been found not only in the Warsaw Decree itself, but also in the Real Estate Administration Act of 21 August 1997.
As a result of the Constitutional Tribunal judgment of 27 July 2016 (case no. Kp 3/15), issued under the advance clearance procedure, the Warsaw Act of 2015 (Act of 25 June 2015 Amending the Real Estate Administration Act and the Family and Guardianship Code) entered into force on 17 September 2016. Under the Warsaw Act, two new sections, Art. 214a and Art. 214b, were added to the Real Estate Administration Act. Art. 214a contains an additional catalogue of grounds which may be applied by the Mayor of Warsaw, within his own discretion, for denying applications for return of real estate filed in the mid-1940s (in addition to the grounds set forth in the Warsaw Decree itself). Art. 214b, in turn, provides for a procedure for extinguishment of properly filed claims for return of property in dormant cases (known as “sleepers”). This has to do with Warsaw property cases in which a decree application was filed, but the administrative authorities failed to carry out their duty to establish the current addresses of the claimants, which prevented the continuation in modern times of decree proceedings initiated over 70 years ago. We have written in the past on our portal about “waking sleepers” and about the controversies surrounding these regulations and their anti-reprivatisation consequences. Notwithstanding these significant limitations, in this year’s amendment lawmakers decided on even more radical narrowing of the possibilities for former owners of Warsaw properties or their legal successors to enforce their rights.
New catalogue of non-decree grounds requiring a negative decision
The changes in Art. 214a of the Real Estate Administration Act in force from 20 October 2020 involve the rules for application of that provision and the items included in the catalogue of non-decree grounds for denial of an application for restitution of Warsaw property.
Between 17 September 2016 and 19 October 2020, the Mayor of Warsaw had discretion—due to the use in this provision of the phrase “may deny”—in issuing a negative decision on restitution of Warsaw real estate if at least one of the grounds indicated in Art. 214a existed, notwithstanding fulfilment of the conditions for return of the property set forth in the Warsaw Decree itself. In practice, this proviso did not cause a significant increase in the number of negative decisions in Warsaw Decree cases. And at least in theory, during that period, it was still possible to issue a decision returning the property despite the existence of one of the additional negative grounds. From 20 October 2020, the existence of any such ground requires the Mayor of Warsaw to issue a decision refusing to restore the property to its prior owners or their legal successors.
Another change in Art. 214a of the Real Estate Administration Act is a significant expansion of the catalogue of grounds for refusing to return property regardless of fulfilment of the conditions for restitution set forth in the Warsaw Decree. In its earlier wording, this provision set forth five grounds excluding the return of property, and application of those grounds starting from 17 September 2016 resulted in a near-total halting of restitution of Warsaw properties. It was still theoretically permissible to return undeveloped land or pre-war residential buildings not rebuilt by the state. The new catalogue of grounds excluding restitution now contains 12 points. These include for example such circumstances as occupation of even one flat by communal tenants, or delivery of even a single unit in the building for paid occupancy (e.g. lease). Moreover, the new Art. 214a employs general clauses such as inconsistency with the socioeconomic purpose of the right of perpetual usufruct, or a conflict with establishment of proper neighbourly relations which could result from granting the decree application.
The imposition of such an extensive catalogue of broadly worded grounds for denial of decree applications will result in a total halt of restitution of Warsaw properties in kind, despite fulfilment of the conditions for restitution set forth in the Warsaw Decree. In this situation, after obtaining a decision denying restitution in kind, former owners or their legal successors will be able to seek damages through judicial proceedings, once they meet a number of additional conditions.
Expansion of set of claims to be extinguished
Until now, the claims for restitution that have been subject to extinguishment under Art. 214b of the Real Estate Administration Act were those cases where, since filing of a decree application in the 1940s, no other filings had been submitted by the claimants and the administrative authority could not determine the claimants’ current address. In that situation, the authority published an announcement in the press and online summoning the claimants to come forward within six months and prove their rights, or provide current addresses within a further three months. If these deadlines were not met, the authority issued a decision discontinuing the decree proceeding without awarding any damages. Under that earlier wording of this provision, the greatest controversy was sparked by the deadline (a total of 9 months) for claimants to demonstrate their rights to Warsaw property. In the case of many properties, gathering the relevant documentation and conducting the necessary inheritance proceedings concerning the prior owners was not feasible in such a short time, rendering the protection of the rights of the prior owners under that provision illusory.
In the new wording of Art. 214b, it was decided to greatly expand the set of restitution claims subject to extinguishment. It was determined that the condition for publication by the City of Warsaw of a notice summoning the claimants to come forward and demonstrate their rights or provide their current address would no longer be the failure by the claimants to submit any filings apart from the decree application from the 1940s, but the failure by the claimants to submit any filings concerning the given property within the past 30 years. This change has a major impact on the number of restitution claims subject to extinguishment. It means that in addition to the earlier cases, cases qualifying for publication of announcements preceding discontinuance of the decree proceedings will also include cases of properties where after filing of the decree application, the claimants continued to conduct official correspondence in the restitution case, but did not continue that correspondence after 1989. Through 19 October 2020, restitution claims of this type were not subject to the extinguishment procedure, due to the later official correspondence in those cases.
In practice, this expansion of the set of claims to be extinguished impacts prior owners of properties or their legal successors who have been living outside of Poland for years. It often happened that after filing a decree application and exchanging further official correspondence, the former owners left the country, and under the political realities prevailing at that time abandoned the notion of continuing restitution efforts from abroad. Consequently, in the case of such properties there is no official correspondence on file from after 1989, and now the former owners may not remember the decree proceedings launched many decades ago, or—which is more commonly the case—their heirs may not even be aware of their rights. Under such circumstances, setting a 9-month period for claimants who are unaware of their rights to come forward and prove their legal succession from the former owners is an entirely unrealistic solution, clearly aimed at stripping these persons of their rights.
Baseless review of legally final court orders in inheritance and guardianship cases
Art. 214c was added to the Real Estate Administration Act as part of the amendment discussed here. This new provision requires the Mayor of Warsaw to issue a decision refusing restitution of real estate if the addressee of the decision acquired the claim from an improperly appointed guardian ad litem (kurator) or in violation of the inheritance regulations, including the regulations on “vacant” and unclaimed succession.
Without delving here into the complex topic of vacant and unclaimed succession, which we wrote about in detail in the first issue of the scholarly journal In Principle: Legal Studies and Analyses, it should only be pointed out that a guardian ad litem can be appointed, and inheritance confirmed, only through issuance of the relevant order in a judicial proceeding. There are also appropriate court procedures for setting aside or reviewing such orders. But Art. 214c of the Real Estate Administration Act insists that when considering decree applications, the Mayor of Warsaw must conduct verification of legally final orders appointing guardians ad litem or confirming acquisition of inheritances, outside of the channels provided by administrative procedure. But this problem cannot be reduced merely to the lack of competence of administrative authorities to conduct such oversight of judicial rulings. It also involves the absence of any regulations on the procedure and manner of identifying and determining such irregularities in the appointment of guardians ad litem or confirming of inheritance.
It should be pointed out, by the way, that in recent years the Mayor of Warsaw, as an authority representing the State Treasury, has been initiating judicial proceedings seeking to modify inheritance rulings. In these cases, based on a selective interpretation of the provisions on vacant and unclaimed succession, the mayor seeks to modify inheritance orders through a finding that the inheritance from the former owners of Warsaw properties was acquired by the State Treasury instead of the relatives of those owners. These efforts by the mayor are generating varied results due to the courts’ differing views on the interpretation of the inheritance regulations presented by the mayor. In this context, the new Art. 214c of the Real Estate Administration Act allows the Mayor of Warsaw to avoid conducting long, complicated judicial proceedings seeking to modify inheritance orders, and to conduct an independent and unauthorised review of legally final inheritance rulings as part of the Warsaw Decree proceedings conducted by this authority.
The amendment of the Real Estate Administration Act provisions on consideration of Warsaw Decree applications filed in the 1940s constitutes the next phase, after that of 17 September 2016, in the limitation and extinguishment of claims for restitution of Warsaw properties.
The expanded catalogue of non-decree grounds for refusing to grant a decree application—notwithstanding fulfilment of the conditions for restitution provided for in the Warsaw Decree—will lead, in practice, to halting all restitution of Warsaw properties to their rightful owners or their legal successors. These persons could pursue damages for their lost property through judicial proceedings, but only if all of the grounds exist for holding public entities liable in damages. Moreover, such proceedings seeking damages are usually costly and time-consuming, and their results are uncertain. In addition, this approach will create a substantial financial burden for the State Treasury due to realising reprivatisation claims in Warsaw only in the form of damages. But this solution is not always economically justified, if following restitution of property in kind to its former owners or their legal successors, they revitalise the property and relieve public entities of the burden of maintaining old buildings.
This amendment has also expanded the set of restitution claims that will be extinguished, and consequently the former owners or their legal successors will not be entitled to pursue damages for their lost property even through judicial proceedings. Finally, these provisions allow the Mayor of Warsaw to avoid long, complicated judicial proceedings for review of the correctness of orders appointing guardians ad litem or confirming the acquisition of estates through inheritance, and instead conduct his own review of those findings within Warsaw Decree proceedings.
This all demonstrates that the amendment of the Real Estate Administration Act must be regarded as the latest step in regulations opposed to Warsaw reprivatisation, in which, along with further limitations on restitution claims, the former owners or their legal successors are not guaranteed any compensation for their loss.
Barbara Wiśniewska, Real Estate Development practice, Wardyński & Partners
Radosław Wiśniewski, Reprivatisation practice, Private Client practice, Wardyński & Partners