Ownership as the prerequisite for the entitlement to claims arising from the Warsaw decree

Abstract

The article presents the issue connected with the application of the mechanism of real property communalisation in Warsaw, raising a great deal of doubt in literature and diversely assessed in the case-law. The issue concerns the requirement adopted by the communist authorities in the decree of 26 October 1945 on ownership and usufruct of land on the area of Warsaw (so called the Warsaw decree) pursuant to which persons applying for (former) heritable building rights of superficies, and currently the right of perpetual usufruct were possessors of their former real properties. The decree communalised (nationalised) all land plots within Warsaw in order to rebuild the city destroyed by the war. A person fulfilling the condition of possession or their legal representative could have submitted within 6 months from taking possession of the land by the commune a request for establishing the right allowing the use of the real property compulsory taken over. Granting the possibility to submit requests for establishing the right to the land was to enable its former owners to take part in the reconstruction of the capital city. Granting the right involved essential obligations, for example in the form of the construction of a building or other facility as well as their maintenance in an appropriate condition. The main controversy concerns the fact whether the possession order as the condition for granting the right to use the land by the commune relates to former owners or only their legal successors (including mainly their heirs). If the interested party did not own the real property, they could not have claimed the right to establish the right to the land in an efficient way. The requirement concerning the ownership as the possibility to exercise efficiently the actual control over the real property was assessed under the rules of the Napoleonic Code applicable in the central parts of Poland, whereas later under the new Polish property law of 1946. The ownership as the condition for acquiring the right to the land was aimed at establishing the possibility to co-participate in the reconstruction of buildings destroyed as well as allowed the determination whether the persons entitled to the land were alive or had died during the years of war turmoil (in particular in the Holocaust). The article presents arguments for assuming the necessity to analyse the existence of the ownership lying with former owners (and not only with their legal successors). Nowadays, the problem is also essential due to practical reasons as requests submitted in the 1940s are being still currently processed, and failure to prove in that time the title to the land by requesters applying for granting the relevant right results also today in the necessity to reject establishing the right of perpetual usufruct.