Common lands within the meaning of the common lands act of 29 june 1963 – selected civil law issues

According to the Act of 1963 of Common Lands, in order to properly manage and develop the common land, its shareholders shall appoint the administrative entity called the common land’s company. The company is not the owner of common land, but acts as the land manager, since these lands are subject of specific type of joint ownership operated by a rural community. The establishment of the company is made by way of a resolution adopted by a majority of members entitled to participate in the common land in the presence of at least half of them. Upon approval of the statute of the company by the appropriate administration authority, the company acquires legal personality. The article describes the legal nature of the common land’s company and aims at placing it in the Polish legal system. In order to achieve it, the common land’s company is being compared to a civil, commercial and administrative law companies.

The article presents the current state of affairs and the proposed changes to the land and mortgage register law in the context of the potential entrusting the competence to make entries in the land and mortgage registers not only to courts of law, but also to notaries, within the limit of the legal transactions performed before a notary. In the light of the jurisprudence of the Polish Constitutional Tribunal, the dominant position is that the keeping of land and mortgage registers and making entries thereto, although remaining within the powers of land and mortgage registration courts, does not constitute a constitutional category of “administering justice”. Therefore, the act of disclosure of rights in rem in a real property register need not be restricted to courts only. Those powers may also be exercised by other authorities, including notaries who are a special profession of public trust.

The legal nature and substantive consequences of the records in section ‘IIdentification of real estate’ in the mortgage register

This article is the second part of a continued study on the legal qualification of balconies (loggias) in the jurisprudence of administrative courts and common courts of law and at the same time an attempt to construct the concepts of a balcony, terrace, and loggia (recessed balcony) from a normative point of view. In part I, we have outlined the condition of research on the issue which is the subject of the study, our assumptions and research hypotheses, terminological and definitional issues in reference to their dictionary meanings, the jurisprudence of the Supreme Court and lower courts of law and the jurisprudence of administrative courts in determining the terminological meanings of the concepts of balcony (loggia) and terrace. Furthermore, a normative analysis of the legal provisions contained in the Act of 24 June 1994 on the Ownership of Apartments (consolidated text promulgated on 21 May 2021 in the official journal “Dz.U.” of 2021, item 1048), the Act of 23 April 1964 - the Civil Code (consolidated text promulgated on 9 June 2022 in the official journal “Dz.U.” of 2022, item 1360, as amended), the Act of 6 July 1982 on Land and Mortgage Registers and Mortgages (consolidated text promulgated on 22 July 2022 in the official journal “Dz.U.” of 2022, item 1728) as well as the legal scholars’ writings and jurisprudence. One of the basic research objectives in this study was also to present the institution of a common property in the context of a potential qualification of balconies, loggias, terraces alternatively as one of the components of a common property or through their classification as a part of the structure of a an apartment. In this paper, the authors have attempted to analyse the definition of common property laid down in Article 3(2) of the Act on the Ownership of Apartments in a de lege lata framework, presenting the most important features of the currently applicable normative concept. It gave rise to de lege ferenda conclusions proposed in the conclusions to this article, in particular as regards the scope of terminology used by the lawmaker. The considerations of a theoretical and legal nature have been extended by an analysis of the views present in particular in the current jurisprudence of common courts of law and administrative courts, as well as references to normative solutions adopted of some foreign legal systems.

The study analyses the question of admissibility of correcting judgments issued in noncontentious proceedings, in particular those concerning land and mortgage registers. Doubts regarding the nature of corrections of entry errors are clarified and the legal nature of the decisions in this matter is assessed. From the perspective of the considerations regarding the admissibility of correcting judgments in land and mortgage related proceedings, attention is also drawn to the significance of the action for reconciliation of the content of the land and mortgage register with the actual legal status and to issues concerning the admissibility of correction of a judgment by a court referendary.

The connections between enforcement proceedings against real property and the public confidence warranty of land and mortgage registers are of great juridical, and therefore also economic and social, importance. They are manifested in particular by the fact that both in enforcement proceedings and in the application of the public confidence warranty of land and mortgage registers, the ownership right to real property may be acquired from an entity that was not its owner or the ownership right to real property may be acquired in a different legal status than the one it was entitled to the previous owner. In this respect, what seems particularly important, is the issue of admissibility and scope of applying warranty in case of acquiring the ownership right to real property within enforcement, as well as the issue of the specific application of the regulations constituting the warranty in the event of the acquisition of the ownership right to the real property in respect of which enforcement is or has been carried out. All these matters have been discussed in the paper.

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 mortgage 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.

Common land in England presents us with a complex proprietary system: although privately owned, third parties have common land use rights over it, which differ greatly in kind because of varied customary traditions. The paper will begin by tracing the modern history of the property rights on the commons, focusing on the eradication of customary proprietary traditions by modern legislation (Commons Registration Act 1965). The analysis of the evolution of property rights will be linked with that of environmental governance mechanisms and designations to which many commons are subject today and with the quest for sustainable management of common land. Using the analytical framework of legal pluralism, the paper will investigate the power relations between three principal legal orderings applicable to common land governance: environmental management, current property law, and soft and customary law. This analysis will be grounded in the lands of three case studies. Looking at the interrelations of the three legal spheres, it will be possible to provide an analysis of the interplay between property rights and environmental protection as well as offering practical solutions for their reconciliation through the formation of self-regulatory statutory Commons Councils, corporate bodies envisaged by Part II of the Commons Act 2006.

Though increasingly rare, the translation of handwritten texts of an official nature causes considerable problems for the translators. In the case of German, still valid documents, which are still referred to by both natural and legal persons, are land and mortgage registers from the period of partitions. In western Greater Poland, entries to the land and mortgage registers were made at that time initially by a handwritten Gothic letter, and then introduced in 1911 so-called Sütterlin (Sütterlin-Schrift), which is the then valid calligraphic standard in German schools. Therefore, the translator who interrogates KS entries must, in addition to the routine process of translating a text from German into Polish, deal with the additional difficulty of deciphering stylized handwriting that is radically different from today’s calligraphic standards. Mastering the skills of reading texts written with Gothic or Sütterlin becomes the next qualification that an translator must possess. The aim of this paper is to present gained experience and insights regarding the process and technique of translating documents written by hand with Gothic or Sütterlin.

In the article there have been discussed rules regarding the acquisition of real property by an auction run according to the court enforcement proceedings. The influence of adjudication of ownership on personal rights and claims regarding the property has been shown indicating substantive consequences of a valid court order regarding adjudication of ownership influencing both personal rights regarding the property which has been sold in the course of the enforcement and personal claims which have been secured by disclosing in the land and mortgage register. The starting point for consideration was presenting a general rule saying that all the rights and consequences of personal rights and claims disclosure regarding the property expire upon validation of court order regarding adjudication of ownership. It has been indicated which rights do expire and which ones the creditors are entitled to instead. Moreover, there have been presented the rights which do not expire despite a valid court order regarding adjudication of ownership, conditions which must be fulfilled so that these rights can be maintained and the influence of maintaining these rights on the value of the property and then on the purchase price. The next issue which has been discussed in the article was the influence of adjudication of ownership on lease and tenancy, including the change in the legal form resulting from the amendment dated 16 September 2011, accompanied by an explanation which agreements it applies. What has been also presented is the procedure regarding removal of all the rights concerning the property from land and mortgage register or a set of documents. In the summary there has been indicated the importance of consequences resulting from a valid court order regarding adjudication of ownership and the significance of proper order drafting and determining its validity date.

In recent years, many attempts have been made in Poland to enable automatic data exchange between the system of the Cadastre, being the responsibility of local government units, and the system of Land and Mortgage Register, maintained by the judicial administration (supported by the state apparatus represented by the Ministry of Justice). Such exchange is necessary as it is dictated by the establishment of the Integrated Real Estate Information System. These actions, however, are hindered by the different approaches of the users to the designs and functions of the two systems, as well as by the data incompatibility between the two registers.The article discusses various categories of problems related to the need to synchronise the terms corresponding to spatial objects between individual groups of users. Then, it outlines the difficulties associated with the unambiguous assignment of spatial objects to specific objects of a higher hierarchy level, resulting from the different priorities of the operators of both systems.The author also points out to the fact that ensuring coherence of the data on real property location is yet another condition allowing automatic data exchange between the systems and a full data modernization process in the base systems for the Integrated Real Estate Information System. Due to significant discrepancies between the assumptions of the systems and the data actually stored in them, such systematisation of attributes is necessary. The process of making the data on real estate consistent must take into account the conditions related to both historical events, often dating back to the times of partitions, as well as errors repeatedly committed on current basis, related to the incorrect entry of new data. The article has also pointed to the problems in data standardisation, resulting from multi-level administrative divisions, carried out due to various social needs.

This article evaluates the legal norms related to real estate trading by legal entities of the Catholic Church in the context of land and mortgage register proceedings. First, the issue of the legal entity of the relevant church legal entities is presented. Next, the principles of the representation of church legal entities by the competent authorities is analysed. This is important both for the capacity to undertake a substantive legal action, the subject of which is real estate, and for examining the effectiveness of procedural steps taken in the course of land and mortgage register proceedings. The last part is devoted to real estate trading with the participation of church legal entities in the context of the principles resulting from the regulations of land and mortgage register proceedings. The research leads to the conclusion that for land and mortgage register proceedings, it is of fundamental importance to assess the effectiveness of a legal act in the context of the specific requirements of canon law, examples of which are Canons 1281 § 1 of the Code of Canon Law with regard to acts exceeding the limits and manner of ordinary management, and Canons 1292 § 1–2 of this Code making the validity of alienation dependent on the consent or authorisation of the competent entity. The absence of the consent or authorisation required by the provisions of canon law should lead to dismissal of the application for entry, which can possibly be remedied by a subsequent confirmation of the legal act performed by applying the instruments of civil law, as exemplified by Articles 39 and 63 of the Civil Code. In addition, the implementation of the principle of the autonomy of the Catholic Church is expressed in leaving to the church authority regulation of the appointment of the competent bodies of church legal persons; the land and mortgage register court cannot question the effectiveness of the appointment of these bodies, the assessment of which is left to the Catholic Church and its organisational units.

This article addresses the interesting and complex issue of mortgage-secured claims in the distribution of proceeds obtained from the enforcement of real property. It presents problematic aspects encountered by court enforcement officers, such as discrepancies between the amount recorded in the mortgage register and the actual amount of the claim secured by the mortgage, or the absence of an enforcement title held by the mortgagee, which is necessary to initiate payment. The author also examines questions such as what course of action the bailiff should take if the mortgagee fails to present an enforcement title, and how to determine whether the claim covered by the enforcement title corresponds to the claim secured by the mortgage. Unfortunately, the current legal framework does not provide sufficient clarity to resolve all of these doubts. For this reason, the legislator would need to intervene to discipline the mortgage creditor and obtain an enforcement title. They would also need to introduce explicit regulations concerning the amount of mortgage-secured debt not withdrawn from the deposit account, in order to enable creditors in the lower categories of satisfaction to be repaid. Keywords: enforcement against real property, mortgage-secured claim, distribution of enforcement proceeds, mortgage creditors, deposit account, liquidation of unclaimed deposits

In Poland, after World War II, most of the technical infrastructure was built based on a construction permit, and without a legal title to a given real property. Therefore, a necessity arose for the regulation of property rights where technical infrastructure was built. For the establishment of the right-of-way for transmission facilities it is essential to regulate the legal relationships between the owner of the real estate and the transmission entity and their entry into the land and mortgage register. The extent of the granted right-of-way determines the value of consideration for the owner of the encumbered property. This study analyzes the rules for the determination, establishment and surveying preparation of the right-of-way for various types of transmission facilities. First a thorough examination of the legal status of the real property was required and then the extent of the necessary right-of-way to be established for the given facilities was analyzed. The next stage of the study involved determining the extent of the rights-of-way and appropriate protective zones for the networks pursuant to the relevant technical guidelines. The analysis revealed significant diversity of legal regulations on the establishment of the right-of-way for the specific types of public utilities.

The surface of the earth is very diverse, there are various elements on it that shape it: mountains, forests, and water. Not all elements of its shape are relevant to the concept of real estate or the scope of ownership rights. The regulations state that the majority of real estate may be owned by any civil law entities, without differentiating them and limiting the possibility of acquiring ownership rights. Some properties are in principle owned by the State Treasury (or municipalities, as a rule). Whether a property may be owned by any entity may depend on its type, location or what is on it. The following article discusses whether a lake can be treated as a property within the meaning of civil law. In addition, it was examined whether two land and mortgage registers could be kept for one lake.