Mortgage Register Research Articles

Legal entity of the Catholic Church as a participant in Land and Mortgage Register proceedings in Polish law – selected issues

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.

Macroprudential Policy, Mortgage Cycles, and Distributional Effects: Evidence from the United Kingdom

Abstract We analyze the distributional effects of macroprudential policy on mortgage cycles by exploiting the U.K. mortgage register and a 2014 15% limit imposed on lenders’ high loan-to-income (LTI) mortgages. Constrained lenders issue fewer and more expensive high-LTI mortgages, with stronger effects on low-income borrowers. Unconstrained lenders strongly substitute high-LTI loans in local areas with higher constrained lender presence, but not high-LTI loans to low-income borrowers—consistent with adverse selection problems—implying lower overall credit to low-income borrowers. Consistently, policy-affected areas experience lower house price growth postregulation and, following the Brexit referendum (negative aggregate shock), better house price growth and lower mortgage defaults for low-income borrowers.

Czy celowe jest wprowadzanie możliwości przenoszenia spółdzielczego własnościowego prawa do lokalu na podstawie umowy o dożywocie?

The cooperative ownership right to premises is a limited right in rem. Although since 31 July 2007 it is not possible to establish new cooperative ownership rights to premises, the existence of those that have been effectively established is not limited by any time limit. Authorized persons can dispose of them freely. Due to the fact that the premises being the subject of cooperative ownership rights are not real estate from the formal and legal point of view, they cannot be the subject of agreements that are used to transfer the ownership of real estate. This means that the cooperative ownership right to the premises cannot be transferred, in particular, on the basis of an annuity agreement. The analysis carried out in this study indicates that there are no obstacles preventing a change in the law aimed at creating the possibility of disposing of cooperative ownership rights to premises on the basis of an annuity contract. Such a change will remove the systemic inconsistency resulting from the fact that the cooperative ownership right to premises may be subject to transfer on the basis of a reverse mortgage loan agreement, and cannot be subject to transfer on the basis of an annuity agreement with a similar function. Creating the possibility of disposing of cooperative ownership rights to premises on the basis of an annuity agreement should not be limited only to the introduction of a provision to the Civil Code enabling the appropriate application of the provisions on annuity to agreements the purpose and effect of which is the transfer of the cooperative ownership right to premises in exchange for a commitment by its buyer to provide the seller with life support. Achieving the above-mentioned objectives of this amendment to the Civil Code, and in particular the proper protection of the interests of persons disposing of cooperative ownership rights to premises in exchange for a lifetime maintenance obligation, also requires consideration of amendments to some other acts, such as the Act on Housing Cooperatives and the Act on Land and Mortgage Registers and Mortgage. The changes in the legal status proposed in this study may improve the ability of older people to obtain care under civil law contracts.

The problem of legal classification of a balcony in the jurisprudence of administrative and common courts of law: A comparative legal analysis (Part II)

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.

Principle of Reliability of Business Trading in the Context of Personal Changes in Partnerships

The article presents the issue of personal changes in partnerships from the perspective of dangers to the interests of partners of such partnerships and third parties. The analysis is carried out primarily in the context of the norms concerning the national court register, but also the relevant regulations of the Code of Civil Procedure. On this basis, the author evaluates the current regulations and concludes that they pose significant dangers to both partners of partnerships and creditors as third parties. These dangers arise mainly from the way the system of presumptions provided for in the provisions of the Act on the National Court Register is shaped. The author refers to the de lege ferenda postulates expressed in the past and selects the optimal solution from the perspective of implementation of the principle of reliability of business trading, and also presents his own de lege ferenda proposals. In the author’s opinion, in order to secure the interests of a partner withdrawing from a partnership against the risk of attempts to hold him/ her liable for obligations arising after his/her membership in the partnership has ceased, it would be sufficient to grant such a person the right to file an application to remove him/her from the register of entrepreneurs as a partner of the partnership. On the other hand, in order to safeguard the interests of third parties, it would be advisable to broaden the scope of application of the norm arising from Article 14 of the Act on the National Court Register and subject the former partner of a partnership to the rigors of this regulation. In addition, in order to ensure greater transparency of the data disclosed in the register, in the author’s opinion, it is advisable to consider the possibility of introducing, within the framework of the register of entrepreneurs, an institution similar to that provided for on the grounds of land and mortgage register proceedings, concerning the obligation of the court to disclose ex officio an identified inconsistency of the actual state of affairs with the state of affairs disclosed in the register of entrepreneurs.

Entry into a land and mortgage register as notaries’ act: aspects of systemic and procedural law

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 PROBLEM OF ABANDONED PROPERTY AFTER THE ENTRY INTO FORCE OF THE DECREE ON OWNERSHIP AND USE OF LANDS IN THE CAPITAL CITY OF WARSAW

This article attempts to answer the question of whether abandoned property existed in Warsaw after the entry into force of the Decree on Warsaw Lands. Contemporary case law is consistent in the position that within the territory of the capital of Poland, after the entry into force of the Decree on Warsaw Lands, there was no abandoned property given the categorical wording of Article 1 of the Decree that on the date of entry into force, all Warsaw lands are transferred to the municipality of the Capital City of Warsaw. However, post-war doctrine is of the opinion that for the transfer of ownership it was necessary to enter the new owner in the land and mortgage register.

Modern legal solutions in Estonia's judicial land registers as an example of effective use of IT instruments as well as IT and legal cooperation

In search of interesting legal solutions related to the modern and effective functioning of legal land registers, the author draws attention to IT solutions used in Estonia, which has been one of the most technologically advanced countries in Europe for over fifteen years. This solution can be treated as an exemplary solution in the search for an idea for the organizational and legal strategy of the next stages of informatization of court registers. The study briefly describes the history of the development of land e-registers, with particular emphasis on legislative and technical solutions that allow for the comprehensive digitization of the application process for entry, the use of digital documents and e-archives, with an emphasis on the elimination of the paper form of land and mortgage registers. In the further part of the study, reference was made to the e-Notariat and Immovable Portal solutions, using the X-Road as operating system, which helps to exchange, check and update data. These innovations in Estonian land register translate, among others, into for regular ex officio updating of entries including factual data on real estate and data included in the population register (e.g. change of the surname of the owner in a legal event such as a marriage). The summary of the analysis is the assessment which shows that Estonia is a very good model in searching for ideas to improve the functioning of land register in Poland, however, one should take into account the differences related to the level of technological advancement or the area of the state. The susceptibility to cyber-attacks, which also target e-Estonia, is not without significance, which follows computerization and Internet addiction in the public sphere. Therefore, the harmonious development of cybersecurity is also important. It is necessary to balance the proportions between following the registers with the expectations of society and the spirit of the times, and the security of public data.

Land and mortgage registers as a cornerstone of real estate transactions in Polish law — a historical and legal outline (On the 40th anniversary of the enactment of the Land and Mortgage Registers and Mortgage Act)

With its core purpose of establishing the legal status of immovable property, the system of land and mortgage registers (perpetual books) operating in Poland plays a paramount social and economic role in ensuring legal security of real estate conveyancing, and thereby contributes to implementing the constitutional principle of democratic state ruled by law. The foundations for a uniform land and mortgage register law were laid down in the 1930s by the Codification Commission of the Republic of Poland, appointed after the Polish State regained independence in 1918, following the period of partitions. The works of the Commission were interrupted by the outbreak of the Second World War in 1939. In the early years of the post-war communist regime, the Commission’s draft provisions on land and mortgage registers served as the basis of the unified legislation that entered into force. Shortly thereafter, however, the very usefulness of the institution of land and mortgage register was contested by communist authorities, as it was considered contrary to the ideological assumptions underlying the socialist system. As a consequence, although not abolished, the land and mortgage register law’s relevance was diminished substantially for several decades, as manifested by the fact that it was not incorporated into the Civil Code of 1964. The significance of land and mortgage registers was restored to a certain degree only upon adopting the Land and Mortgage Registers and Mortgage Act of 1982, which, after being appropriately amended, is still in force. Subsequently, land and mortgage registers were subject to systemic reforms as part of the democratic transition process in Poland, and in recent years, advanced computerisation and informatisation actions have been undertaken bringing about noteworthy modernisation effects.
 In view of the forthcoming 40th anniversary of the enactment of the Land and Mortgage Registers and Mortgage Act, it is worth providing deeper insights into contemporary Polish land and mortgage register law against the historical background. The article is aimed at outlining the evolution of legislative and doctrinal approaches to the position of land and mortgage registers in the legal system in Poland — from the period of the interwar Codification Commission’s activity, through the decades of the totalitarian domination of the communist system, until the present time. In this respect, particular reference will be made to basic rules underpinning the organisation of land and mortgage registers. Based on the overview of the development of land and mortgage register law, with special consideration of its legislative marginalisation in the People’s Republic of Poland, conclusions will be drawn as to the current legal position of land and mortgage registers in the context of recognising the vital importance thereof for property law relations.

Wybrane sposoby zabezpieczenia w postępowaniu nieprocesowym na przykładzie sprawy o ubezwłasnowolnienie osoby pełnoletniej

This article is a study of a scientific and research character. It contains an analysis of the legal measures, the aim of which is to provide appropriate protection to a person who is the subject of an incapacitation petition. The synthesis is centred on an answer to the question whether it is legally admissible to file a petition for protection in the proceedings concerning an adult for the purpose of securing the property of this person. The author gives arguments in favour of the affirmative answer to this question. This is corroborated not only by the general purpose of the protective proceedings, that is protection of interests of the person concerned, but also by the functional and literal interpretation of Article 730 § 1, Article §§ 1–3 and Article 755 of the Civil Procedure Code. Issuing a decision about protection in incapacitation proceedings and entry of a warning in the Land and Mortgage Register on the basis of a judicial decision about granting protection are legally admissible instruments providing relevant protection to the sick person. Together with the legal measures which offer a chance to present arguments effectively on behalf of the person who is the subject of an incapacitation petition, they provide a guarantee of adequate protection of interests of the person concerned. The article discusses the subject from a novel perspective. The presented issue has not been analysed comprehensively in the literature on the subject so far. In the author’s opinion, the article deals with the issues of the national range, important also for practitioners of law.

Complaints of land and mortgage register court judgments

The article analyses the ways of appealing against judgments issued by the land and mortgage register court. The lodging of appeals always extends the proceedings aimed at obtaining a legally binding entry in the land and mortgage register. From the perspective of real estate participants, it is also necessary to mention that the elimination of an entry in the register may also take place by bringing an action regarding the property right for which the land and mortgage register is kept. A common court judgement may also have the effect of making an entry in the land and mortgage register with a content different than that resulting from the examination of the application for entry, and then the means of appealing against it, by the land and mortgage register court.

Property law in Poland

The article discusses the basic issues of Polish property law. In particular, it briefly addresses all types of rights in rem, i. e., ownership, perpetual usufruct, usufruct, easements (servitudes), pledge, co-operative ownership right of real estate, and mortgages. Emphasis is given to the pluralism of the sources of property law in Poland, on the one hand, and the presence of the numerus clausus principle in it, on the other hand. The difference between possession as a factual state and a real right is highlighted. The objective tendency to split the single concept of ownership into various forms of this right, which are meaningfully far apart from each other is described. It is noted that there is a clear differentiation in Polish law between binding contracts and causal dispositive transactions, as well as the assumption of transactions with a double effect (both binding and dispositive), which turns the system of transfer of real estate ownership into a consensual one. At the same time, attention is drawn to the fact that the ownership right passes to the acquirer as a result of the conclusion of the contract even before the corresponding registration of the transfer of title in the public register, which, thus, has a declarative character. Attention is also given to serious legal restrictions on the acquisition of real estate by foreigners. Furthermore, the article discusses the general trends in the development of Polish property law, inter alia digitization of land and mortgage registers, adjusting the system of mortgage lending to the needs of a developed market economy, regulation of the rapidly expanding housing market, as well as increasing restrictions on real estate trading and regulation of legal titles to real estate on which transmission facilities are located.

Zabezpieczenia rzeczowe dotyczące spółdzielni w orzecznictwie sądowym – wybrane zagadnienia

The article presents the issue of securing cooperative claims against the background of selected judgments of the Supreme Court. Such claims may be secured by establishing a mortgage, a registered pledge or the transfer of ownership for security. A cooperative, especially a housing cooperative, may be a beneficiary of such securities as a creditor. The assets of a cooperative can also be encumbered. It is not possible to establish security on a real estate with an unclear legal status. Establishing a mortgage on a separate ownership of the premises for which a land and mortgage register cannot be established is excluded. In a case of a title transfer for security, it is crucial to contractually define the mechanism of clearance for the parties and the issue of the so-called oversecuring.

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

The article will discuss the general issues related to common land - the term applied in the Common Lands Act of 29 June 1963 and its legal nature. In addition, an attempt will be made to answer the question about an entity that should be disclosed in the second section of the land and mortgage register in the case of real property being a part of the common land. Currently, land and mortgage registers may be established for common land. The question is whether it should be the common land itself or natural and legal persons entitled to hold shares therein, or maybe a company established to manage and develop such a common land. It seems that the legislator itself has been unable to deal with this issue. There are no legal acts where it would indicate directly or indirectly an entity that should be disclosed in the second section of the land and mortgage register as an owner (co-owner).

The use of unmanned aerial vehicles for the assessment of land boundaries accuracy

The Land and Property Register (LPR) also called the Cadastre by the legislator should function in accordance with regulations in force, meet expectations of the public and provide universal access to Register data for its users. Beyond any doubt, credibility and usefulness of data in this public register are affected by the manner it is kept, which generally in-cludes active and passive approach. If the LPR is kept in an active manner and constantly up to date, its data is very useful. The qualitative aspect of the land and buildings database’s records establishes the calculation accuracy of the owners’ land parcels evidenced in the Land and Mortgage Registers, which protect the ownership right to the property. In order to ensure that the plot of land is unequivocally and correctly measured, it is necessary to establish breakpoints of the parcels’ bounda-ries in the presence of the interested parties. Research conducted on the possibility of using the unmanned aerial vehicle (UAV) for measuring purposes indicates immense probability where this technology may be used for the selected details of group I (most accurately located) in modernization of land and buildings registers.

Glosa do postanowienia Sądu Najwyższego z dnia 16 listopada 2018 r., I CSK 646/17

The gloss concerns the issue of the legal consequences of the reconstruction of an independent premises and the attachment of part of the common property to it. The decision of the Supreme Court gives instructions on how to perform the act of connecting a part of the common property to an independent premises, what elements of such a legal act must include and when it is admissible and may constitute a basis for disclosing the change in the land and mortgage register.

Anti-crisis measures in the area of and and mortgage registers in the countries associated in ELRA in response to the COVID-19 threats – preliminary study (Part I)

The author describes what anti-crisis measures have been taken in the real estate registers of the European Union Member States in connection with the COVID-19 pandemic, especially in the context of the important socially and economically important role they play in the real estate market. The study describes and analyse the results of the Special Measures COVID-19 in EU Land Registries survey conducted in 26 European countries that have representatives in the European Land Registry Association (ELRA) in Brussels. The research mainly referred to the solutions they used in the sphere of organizational change, law or financial issues in connection with conducting anti-crisis policy. Due to the early and developmental stage of the pandemic, the research presented in the first part of the article is preliminary, and the announcement of their continuation in the interval of several months gives the opportunity to develop the topic in the second part of the publication. These studies should be deepened by comparing the direction of development of the organization and legislative changes affecting the area of and books in the chosen countries also with regard to the gradual return to regular work after the end of the pandemic and mechanisms to prevent the effects of the economic crisis arising as its result. The illustration and justification of the trend should be statistical data illustrating the work of registers and the resulting trend in real estate transactions and interest in the mortgage market, including traffic in starting bankruptcy procedures. In the further part of the study, reference is made to the detailed solutions used in these countries, including the use of modern technologies, as an ally in the search for quick and effective solutions that enable the conduct of existing procedures with virtually no major changes. In addition, a downward trend in the impact of applications for entry in the land books of most of ELRA countries that was recorded in property registers was described. Then, organizational and legal solutions were assessed in Polish land and mortgage registers against a European background in order to come to the conclusion that the further process of computerization of land and mortgage registers should be quickly undertaken for implementation. This is due to the belief that the stability of land registers in European countries also depends on the degree of their computerization and the ability to work using an electronic procedure, based mainly on the digitization of land and mortgage register records and electronic documents.

Legal aspects of synchronising data on real property location in polish cadastre and land and mortgage register

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.

O postępowaniu przed Ministrem Finansów dotyczącym wpisów w księgach wieczystych na rzecz Skarbu Państwa na podstawie międzynarodowych umów o uregulowaniu roszczeń finansowych

W artykule podjęto próbę rozwiązania problemów wyłaniających się w związku ze stosowaniem przez Ministra Finansów ustawy z 9 kwietnia 1968 r. o dokonywaniu w księgach wieczystych wpisów na rzecz Skarbu Państwa w oparciu o międzynarodowe umowy o uregulowaniu roszczeń finansowych. Ustawa uchwalona w celu uregulowania w księgach wieczystych sytuacji prawnej nieruchomości przejętych przez Skarb Państwa po II wojnie światowej, ze względu na swoją lakoniczność, sprawia ogromne trudności interpretacyjne ww. organowi, który na jej podstawie został zobowiązany do wydawania decyzji deklaratoryjnych stwierdzających przejście prawa własności na rzecz Skarbu Państwa. Merytoryczne rozstrzyganie w przedmiotowym postępowaniu utrudniają dodatkowo nieujednolicone w doktrynie i orzecznictwie poglądy odnoszące się do sposobu przejęcia własności nieruchomości przez Skarb Państwa w związku ze wskazanymi w tytule ustawy międzynarodowymi umowami tzw. układami indemnizacyjnymi.

Odpowiedzialność Skarbu Państwa za przejęcie nieruchomości rolnych na mocy dekretu PKWN z 6 września 1944 r. o przeprowadzeniu reformy rolnej na przykładzie majątku Lubowicz Wielki

The decree of the Polish Committee of National Liberation of September 6, 1944 on the land reform nationalized numerous agricultural properties, changing the ownership structure of the Polish countryside at that time. The aim of the article will be to present the actual state of the property of Lubowicz Wielki, which became a victim of the expropriation contrary to the law at that time. The current proceedings of the legal successors of the former property owners to declare the invalidity of expropriation judgments will be analyzed, as well as the issue of the State Treasury's liability for damages. The considerations will show the unprecedented nature of the facts, the negligence of the current legislator in the issue of re-privatization and the conclusions that result from the implementation of the land reform. The work was largely based on court findings, decisions of administrative bodies, memories of the current heir of Romuald K., testimonies of witnesses, as well as documents that were addressed to numerous bodies and institutions in the years 1949 - 1990. In the facts described by me, there were numerous violations by the expropriation authority, which allowed for the annulment of nationalization judgments by the Minister of Agriculture and Rural Development in 2009, and then seeking compensation for damage resulting from the issue of a defective administrative decision, as well as bringing an action to establish the content of the land and mortgage register with the actual legal status, towards real estate owned by the State Treasury. The described facts are a unique and unprecedented example of the restitution of legal successors more than 70 years after the expropriation of their predecessors. The aim of the study is to answer the question of the expropriated owners or their legal successors, whether they can claim any compensation from the State Treasury today for the damage caused as a result of a faulty land reform.