Poles are eagerly engaged in providing assistance to refugees from Ukraine, including allowing them to stay in their homes. But this raises the concern that providing free access to their home, as a courtesy, might carry some negative consequences for the owner, particularly to carry out a lengthy eviction process if the refugee eventually refused to leave. We believe that in this extraordinary situation the notion of “precarium” could be used.
“Precarium,” a form of tenure of property that arose under Roman law (in Polish prekarium), is not regulated by statute in Poland, but the existence of this notion is confirmed in decisions by Polish courts and in legal commentaries.
There is no single definition of precarium. According to the legal literature, property can be said be held in precarium when in social dealings the owner wishes to provide a favour to another, guided by courtesy or humanitarian concerns (Paweł Książak, “Prekarium w prawie polskim” [Precarium in Polish law], Rejent no. 2 (190), February 2007).
Three essential elements of precarium are indicated (ibid.):
- De facto control over a thing
- The aspect of courtesy, i.e. the absence of a legal bond between the provider and the recipient
- The arrangement is freely revocable.
Examples given of the use of precarium include lending an automobile as a courtesy for a short trip, or, as in this case, hosting a visitor to stay in the owner’s home.
How does precarium differ from ordinary lending?
Based on the cases from the Polish courts, it may be difficult or impossible to draw a clear distinction between the notion of precarium and an agreement to lend an item. Only from an analysis of the totality of the circumstances in the specific case can we determine whether the case involves precarium or an agreement to lend something free of charge.
As the Supreme Court of Poland held in its judgment of 13 September 2001 (case no. IV CKN 425/00), precarium differs from lending (użyczenie) in that the arrangement is a purely factual matter, not a legal relationship. The owner can take back the thing at any time, and the recipient has no legal recourse.
The lower courts in Poland have also referred to the institution of precarium, indicating that it is a manifestation of social relations, where family ties or courtesy are the basis for providing something to another person to use.
But it is always stressed in the court decisions that precarium is not a legal relationship. The parties do not exchange declarations of will and thus do not wish to give rise to legal consequences, but rather their dealings are purely factual in nature. Moreover, by its nature, precarium is free of charge.
No protection of guests, and no fees can be charged
In a situation where the owner of an apartment or house, motivated by humanitarian concerns, offers to host a Ukrainian citizen without charge, this can be said to give rise to the institution of precarium. In this arrangement, regulations protecting tenants do not apply, which can greatly facilitate exercise of the owner’s rights if the guest acts unfairly and eventually refuses to vacate the premises.
This type of hosting is also entirely free of charge. A refugee admitted as a guest does not assume any of the costs of maintaining the premises, such as utilities. This is an essential issue; by contrast, in the case of lending a thing for use by another, the borrower is required under Art. 713 of the Civil Code to bear the costs of maintaining the property. Moreover, as the Supreme Court held in its judgment of 1 September 1958 (case no. 1 CR 745/58), precarium tends by its nature to be short-term and ad-hoc. There the court found that if a person stays for several years in a unit belonging to someone else, even with some interruptions, that gives rise to a legal relationship and entitles the person to the protection of one in possession of property.
It should be pointed out that in the Polish legal system there is no presumption of the existence of a legal relationship, and thus there should not be a concern that in the event of a dispute the court will always treat such hosting as a form of lending the property for use by the guest.
Why is this a good solution?
Under the current circumstances, when Poles in large numbers are assisting war refugees, this approach to the matter seems to offer the simplest solution. There is often no way of knowing how long refugees will need our hospitality. It is also hard to demand payment from someone who has fled from bombing without any possessions.
This is a safer and more appropriate solution that concluding an agreement with refugees for lease or use of property, as those relationships are covered by the provisions on eviction in the Tenants’ Rights Act of 21 June 2001.
Moreover, those other solutions do not appear well-suited to the current social situation, where for humanitarian reasons Poles would like to provide refugees with a roof over their head for some time, but the length of time cannot be specified because it depends on how the unrest in Ukraine unfolds as well as the refugees’ own plans and their ability to find a permanent place to stay.
Should we sign something?
The existence of precarium is determined by the factual situation of providing a guest with a place to stay, and does not in itself require any written statement. But societal norms today display a tendency to a high level of regulation of legal dealings, and many people would like in any event to formalise such courtesy arrangements.
Thus, for our readers’ convenience and in response to the social need, we have drafted a brief form of written statement on hosting refugees on a courtesy basis (in Polish, Ukrainian and English). This not a contract or agreement, but only a statement confirming that the owner is hosting the refugee.
This is convenient for owners because they are provided with the details of the refugee they are hosting. For refugees, in turn, such a unilateral document might be used, for example, to show public officials that they have a temporary correspondence address in Poland at which they can be contacted. It also serves as confirmation that they are being hosted free of charge.
Below we present a form for such a document (on a “non-reliance” basis—that is, we cannot take responsibility for the consequences of using it in any situation). The form can be filled in with the details concerning the property and the persons (the owner and the guests).
Sylwia Moreu-Żak, attorney-at-law, Michał Wons, attorney-at-law, Real Estate practice, Wardyński & Partners