Perpetual Usufruct Research Articles

The right of perpetual usufruct and the principles of a market economy

The right of perpetual usufruct is deeply rooted in the Polish legal system. Perpetual usufruct has a long history, and it is unlikely to be abolished in the near future. Therefore, the extent to which the right of perpetual usufruct is consistent with the principles of a free-market economy should be determined. In the present study, this issue has been examined comprehensively by describing the economic aspects of this right. The fees associated with perpetual usufruct can attract individuals who have an interest in establishing this right. However, these fees can also discourage potential usufructuaries. Despite the above, perpetual usufruct fees constitute a steady source of income for territorial self-governments which grant the right to perpetual usufruct of municipal land. In addition to a comprehensive overview of perpetual usufruct fees, this study also involved a survey to determine the extent to which territorial self-governments exercise the legal rights associated with the collection of perpetual usufruct fees.

Compulsory enforcement of the fee for the transformation of the perpetual usufruct right into ownership of real estate

In the Polish legal system, there are two ways of compulsory enforcement of obligations. It takes place either in administrative enforcement proceedings, which have no connection with the administration of justice, or in judicial enforcement proceedings, which are part of civil proceedings, ultimately determining the fulfilment by the courts of their respective judicial functions. Those proceedings are separate and independent of each other. Sometimes the obligation meets the conditions for administrative and judicial enforcement at the same time. Such an example is the fee for the transformation of perpetual usufruct into ownership. It has a civil law character, results from the operation of law or from an administrative decision, and a special provision does not specify the way of its enforcement. There is a convergence of criteria distinguishing between administrative and judicial enforcement.Currently, there is no doubt that the compulsory recovery of the transformation fee resulting from an administrative decision takes place in the mode of administrative enforcement, despite the civil law nature of this fee. Uncertainty arises as to the method of enforcement if the fee arises by operation of law. There are both sentences in favour of the admissibility of administrative enforcement and dissenting opinions favouring the admissibility of compulsory recovery of the fee in question by way of judicial enforcement.The aim of the article is to indicate the decisive criterion demarcating the path of administrative and judicial enforcement and to determine the method of enforcement of the fee for the transformation of the perpetual usufruct right into ownership. The work uses a formal-dogmatic method of work.

Selected problems in the process of transformation of the right of perpetual usufruct into ownership title to real properties

Selected problems in the process of transformation of the right of perpetual usufruct into ownership title to real properties

New Regulations on Transforming the Right of Perpetual Usufruct into Ownership Title

New Regulations on Transforming the Right of Perpetual Usufruct into Ownership Title

Admissibility of stipulating a contractual penalty in an agreement establishing perpetual usufruct in the event of failure to develop the property within the contractual period. Comment on the resolution of the SupremeCourt of 20 January 2022, III CZP 8/22

In the comment to the resolution of the Supreme Court of 20 January 2022, III CZP 8/22, the opinion expressed therein was approved that the provision of the contract for establishing perpetual usufruct specifying the obligation of the perpetual usufructuary to pay a contractual penalty in the event of failure to develop the property within the specified period is invalid. In the opinion of the glossator, it is supported primarily by the arguments of functional (purposeful) and systemic inter-pretation. The judgment itself may contribute to the unification of the jurisprudence of commoncourts in cases involving the payment of contractual penalties in this respect.

NOWA INSTYTUCJA PRAWA CYWILNEGO: PRAWO WŁASNOŚCI WARSTWOWEJ CZY PRAWO ZABUDOWY

The aim of the article is to compare the layered property ownership right and the heritable building right as potential solutions that could fill the gap in Polish law. Currently, there is no legal institution that would encourage commercial investors to implement investments on or below the ground. In Poland, there are many undeveloped properties located over railway tracks, tunnels or underground car parks. For years, there has been a public debate on the possibility of introducing layer ownership in Poland. The subject of discussion are the solutions used in other countries. The article discusses the draft law introducing the heritable building right. The heritable building right was also compared to the right of perpetual usufruct functioning in Polish law system. An analysis of the currently applicable legal standards was also made in the context of the possibility of introducing three-dimensional properties.

Własność działek budowlanych na terenach budownictwa jednorodzinnego i zagrodowego

During the first years after World War Two housing needs of the population of the cities were first of all fulfilled from the resources administered by state organs. The participation of the population in building of houses was rather insignificant.Constantly diminishing housing resources and — on the other hand — grouth of industrial and agricultural production, caused the increase of real incomes of the population and changes in the state policy in the domain of building of houses, so as to include the iniciative and private funds of the population to the degree higher than thus far into the process of building.In order to carry out new haousing policy it was necessary to provide proper land for building, among others, for building of one family houses. This problem was to be solved by the law of July 6, 1972 on land designated for building one family houses and individual cultivation, and on division of real properties in towns and settlements (Journal of Laws n° 27 entry 192, changes in the Journal of Laws of 1973 n° 48 entry 282).This article aims at presenting all the problems pointed out in the title, and especially the problem of interpretation of several laconic provisions of te law of July 6, 1972. The article brings the reader’s attention to the fact that the law does not regulate all the issues connected with urban building because beyond its scope there remain some important general problems of administration of land in towns, problems of spatial planning, carrying out of industrial investments, building for communal purposes, construction of houses for many families by housing cooperative societies, etc. The article discusses administrative proceedings aimed at designation of land for the purposes of one family houses construction and for individual cultivation by workers of State or cooperative farms, as well as distribution of lots (declaration of preservation of ownership, assignement of lots in ownership or in perpetual usufruct). It also presents judicial proceedings and proceedings before state notarial offices in cases dealing with real properties and decisions designating land for purposes of such building.A critical opinion of the Author on several regulations contained in the law is also presented. Among others this concerns article 8 linea 3 which discriminates co-owners of real properties situated on building land if co-ownership, does not result from succession or cessation of joint property of husband and wife, and article 9 linea 1 which allows to assing a lot only to a young person of age or to a grandchild of the owner of real property which was included into the land designated for building.The final part contains some suggestions as to appropriateness of introducing some changes into the provisions now binding, also as far a appropriateness of regulating all the issues concerning land in the towns i one legal act.

Tryb procedowania oraz przesłanki przekształcenia użytkowania wieczystego w prawo własności

The right of perpetual usufruct has been operating in the Polish legal system since the 1960s. The essence of this right consists in the possibility for the perpetual usufructuary to use land which is publicly owned, to the exclusion of other persons, along with the right to dispose of it. The content of the right to perpetual usufruct is therefore similar in substantive terms to the ownership rights, although it is subject to certain determinants particular only to this law. The limits of the rights of the perpetual usufructuary are determined not only by the provisions of acts, rules of social coexistence, but also by the provisions of the agreement for subjecting land to perpetual usufruct. In addition, the temporary nature of the law and the rules of payment, including the possibility of updating the annual fee for perpetual usufruct, meant that for many years legislative activities were undertaken in the scope of enfranchising perpetual usufruct users. The Act of 20th July 2018 on the transformation of the right of perpetual usufruct of land developed for housing purposes into the ownership right to this land performed normative enfranchisement of perpetual usufruct users. The procedure of confirming enfranchisement is made by the public administration authority in the form of a certificate. The requirement to issue a certificate sometimes demands that the authority conduct a multi-faceted analysis in terms of meeting the conditions for such enfranchisement. Both the material scope of the act, the content of the issued certificate and the paid character of the enfranchisement to which the provisions on state aid apply in practice generate many obligations on the part of the authority issuing the certificate. Due to the universal character of the enfranchisement process and some of its specific features, the legal solutions proposed by the legislator in this area require a more in-depth analysis.

Real Property as a Thing Under the Polish Civil Code

The aim of the article is to present the main characteristics of things in the Polish civil law, with a particular emphasis on real property. According to the Polish Civil Code, real property includes land, buildings or parts of buildings. A thing, including a real property, is a normative concept, limited under the Polish law to self-contained material objects. The material nature of the land may raise doubts due to the fact that it is a “part of the earth's surface” (Article 46 § 1 of the Civil Code). The land thus understood is only “materialized” by objects located on or below the surface. However, the scope of acts related to the exercise of the ownership title is determined by the framework of the permissible use of space, i.e., the socio-economic purpose of land (Article 143 of the Civil Code). Then again, a building or its part may constitute a real property separate from the land in the cases specified in special regulations. These regulations distinguish not only between buildings and premises, but also between parts of buildings that are non-separated premises or a common property related to the perpetual usufruct of land in a building in which residential apartments have been singled out as distinct separate properties.

Turnover of an Enterprise Including Forest Land

The study deals with the issues of trade of an enterprise, an organized part of an enterprise, which includes forest land or the right to use forest land. It was found that the sale of the enterprise, an organized part of the enterprise, which includes forest real estate, is subject to the restrictions resulting from the Forest Act, i.e. the State Treasury has a pre-emption right in case of sale of the enterprise or the right to purchase forest land when a contract other than sale is concluded. Turnover of an enterprise, an organized part of an enterprise which includes the right of perpetual usufruct of forest land, is easier, i.e. it is not subject to restrictions resulting from the Forest Act.

Should the value added tax be added to the fee for the conversion of the title to perpetual usufruct of real property into the ownership title? (Comments on the margin of the judgment of the Court of Justice of the European Union in case C-604/19)

In its judgment of 25th February 2021, in case C-604/19, the Court of Justice of the European Union acknowledged that conversion of the title to perpetual usufruct of real property into a the full ownership title provided for in national law in return for payment of a fee constitutes a supply of goods, and a local self-government unit being a collector of that fee acts as a taxpayer and not as a public authority. This paper addresses the issue whether, in the light of the above decision, it is admissible for a commune to add the amount of the value added tax to the conversion fee.

Institutional factors and the timing of land development: a survival analysis applied to the GZM Metropolis in Poland

PurposeThe purpose of the article is to improve the understanding of the role of institutional factors in real estate development. The authors take into account zoning (existence and type), type of right of disposal and type of buyer and seller of property in a multivariate econometric estimation. Dependent variable of the analysis is the time between acquisition of empty land and the application for a building permit, a period when many important development decisions have to be made. This indicator is closely related to debated phenomena like land hording and speculation.Design/methodology/approachThe authors estimate a Cox proportional hazard model with the time between acquisition and application for a building permit as dependent variable and institutional indicators and a number of control variables as explanatory variables. Study area is the GZM Metropolis in the South of Poland. This region shows enough variability in institutional arrangements to allow for this type of analysis.FindingsThe analysis shows that institutional factors significantly influence the real estate development process. In areas that have not issued a zoning plan, the period until the building permit application is significantly longer. When the state is involved in a transaction (as purchaser or seller), it also takes longer until the building permit application is submitted. Although the instrument is usually intended to speed up development, perpetual usufruct implies a longer period until building permit application. Because of the results the authors get for control variables and for robustness checks, the authors are confident of the results of the analysis.Originality/valueTo the authors’ knowledge, this is the first study that deals with the question how institutional factors influence the timing of real estate development. By using data for a region in Poland, the authors also add to knowledge about real estate development in CEE countries.

Notice of adjustment of the annual fee for perpetual usufruct of real property

The title to perpetual usufruct is regulated under Articles 232 to 243 of the Civil Code and in the Act of 21 August 1997 on Real Property Management. One of the characteristic features of this right is the obligation, on the part of the perpetual usufructuary, to pay an annual fee. The Act on Real Property Management prescribes that this fee may be updated by the competent public administration body acting on behalf of the real property owner. An analysis of provisions regulating the proceedings initiated by the filing of the notice of adjustment of the existing fee leads to the conclusion that the regulation in question is neither precise, nor clear. An additional difficulty lies in non-specification of legal consequences for a defective adjustment of the existing fee. This article puts forward a proposal for a solution to the most important practical difficulties associated with adjustment of the existing annual fee for perpetual usufruct.

Trends in Supreme Court jurisprudence in real property cases in 2020. (Part I). Review

The review includes presentation of the theses and motives from the Polish Supreme Court’s jurisprudence of 2021 regarding real estate property law, including in particular the encumbrance and dispositions of real rights (iura in rem). The most important issues concerning the content and performance, the acquisition and loss of ownership of real estates, the current problems concerning the acquisitive prescription of easements (so called transmission servitudes) and the relationship between the ownership rights of buildings or other equipment, as well as the ownership of the premises (flats) being separate real estates and perpetual usufruct (emphyteusis), are presented. The review includes also the new judgments of the Supreme Court concerning the development agreement and relating to the institution of fiduciary ownership.

Perpetual usufruct as an instrument for strengthening socialist state property and contemporary legal effects in property law

The first part of this study presents historical reasons for introducing perpetual usufruct by the Management of Urban Areas Act 1961 and the Civil Code 1964. It begins with the general analysis that focuses on the changes of laws from the initial introducing development right and perpetual lease to ownership divided into periods and then usufruct of the state residential property. The author explains the mechanism of influence of the factors arising from communist ideology (Marxism-Leninism) on the proposed legal solutions particularly attributing a prominent role to socialist state property in the People’s Republic of Poland. Next, the official version of the perpetual usufruct’s role is also presented. The perpetual usufruct was introduced as a new real right which was to be attractive for citizens and enabled the state to administer areas in towns and settlements in accordance with a legal town development plan. The aim of the study is the explanation of the real function of the perpetual usufruct of residential lands in towns. The construction of perpetual usufruct was a result of referring to models of Soviet law. It was an instrument which was to protect socialist state property as well as to counteract a depletion of the accumulated state lands through a transfer of those lands for private persons. The perpetual usufruct also was to enable the socialist state to control how urban land was used. The perpetual usufruct was a result of the ideological and political principles of the socialist system in the People’s Republic of Poland, particularly strengthening socialist state property of lands. The perpetual usufruct was really a semblance of ownership of land. This was indirectly explained in the resolutions of the Supreme Court of 1968 and 1969. Therefore, in our times there are difficult legal problems also connected with the issue of granting property rights to perpetual usufructuary. The legal proposals of replacing perpetual usufruct with different rights still haven’t been introduced. The last part of this study expresses in a concise way the contemporary legal acts which were aimed at reducing the accumulation of lands which were let on a perpetual usufruct. Nevertheless, these acts weren’t always effective. The Act of 2018 on Transformation Perpetual Usufruct of Built-up Residential Lands into Ownership of those Lands is the last legal act concerning the discussed issues. In principle this act introduced the enfranchisement in accordance with the law for every perpetual usufructuary of built-up residential land. However, it didn’t eliminate the perpetual usufruct in Polish property law. The analysis in this paper proposes the thesis that the perpetual usufruct of residential lands (on a large scale) was never justified in an economy, but was only determined by ideological and political reasons in the People’s Republic of Poland.

Realizacja prawa do sądu w sprawach aktualizacji opłaty rocznej z tytułu użytkowania wieczystego jako spraw o charakterze cywilnym

Proceedings relating to adjustment of annual fees for perpetual usufruct of land, which are regulated in the Act of 21 August 1997 on Property Management, have a special nature. Although they concern a civil law phenomenon, that is, perpetual usufruct of land, the power to adjudicate in cases of this kind at the first, administrative, stage of proceedings was vested with local government board of appeals, that is, public administration authorities. It is an exceptional situation in administrative law. Moreover, even at the stage carried out by local government boards of appeals, the proceedings relating to fee adjustment do not have a purely administrative character, but display a mixed, civil and administrative character. This is proven, among other things, by the fact that the right to appeal the board’s decision is enjoyed not only by the perpetual usufructuary, but also the owner of the land. For these reasons, the legal construction of annual perpetual usufruct fee adjustment, as adopted in the Act on Property Management, gives rise to a number of doubts relating to its application. They appear both in the practice of local government boards of appeals and in the judgments of civil and administrative courts. The aim of the study is to show how the particularities of this procedure affect one of the fundamental rights of the individual, i.e. the right to a fair trial (before a competent court), and to determine whether the solutions provided by the law give sufficient guarantee of its fulfilment. The answers should be sought mainly in case law of administrative courts. In the author’s opinion, an analysis of this case law leads to the conclusion that a case concerning adjustment of the annual fee, despite the particularities of the proceedings, remains a civil case at every stage. This in turn leads to the conclusion that it is unjustified for the local government boards of appeal to issue decisions ending the proceedings in such matters in a formal manner, i.e. decisions of a purely administrative nature.

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.

XVI-wieczny dwór obronny w Zgłobniu i jego nowa funkcja – Regionalna Składnica Zabytków Archeologicznych jako nowy oddział Muzeum Okręgowego w Rzeszowie

XVI-wieczny dwór obronny w Zgłobniu i jego nowa funkcja – Regionalna Składnica Zabytków Archeologicznych jako nowy oddział Muzeum Okręgowego w Rzeszowie

Compliance with the Time Limit of Article 129 (4) of the Act of 27 April 2017 the Environmental Law in the Case-Law of the Supreme Court

The study discusses issues related to maintaining the deadline for suing claims due to restrictions on the use of real estate provided for in Article 129 (1–3) of the Environmental Protection Law. Provided for in the provisions of Articles 129–136 of the Environmental Protection Law liability for damages was formed as a statutory obligation to compensate for damages resulting to property owners (holders of perpetual usufruct) from the introduction of legal regulations that narrow down the possibilities of using these properties. The conditions for liability are: entry into force of a regulation or act of local law resulting in a limitation on the way the property is used, damage suffered by the owner of the property, the holder of perpetual usufruct or the person holding property law, and a causal link between the restriction on the use of the property and the damage. Claims for damages derived from these sources meet the requirements of Articles 361–363 of the Civil Code of the Republic of Poland. They are property claims, subject to limitation (art. 117 § 1 of the Civil Code), however — without being tort claims — they are subject to limitation on general principles arising from Article 118 of the Civil Code. An important legal issue is whether, and if so, to what extent, it is possible to apply by analogy provisions on suspension or interruption of the limitation period to the preclusion period contained in Article 129 (4) of the Environmental Protection Law. The starting point for reflection on this issue are the arguments originating from the current case law of the Supreme Court. Based on the views and arguments of the Supreme Court, the author tries to answer the question on the conditions that meet the three-year period provided for in Article 129 (4) of the Environmental Protection Law asserting claims for restrictions on the use of real estate

Postępowanie o ustalenie niezasadności aktualizacji opłaty z tytułu użytkowania wieczystego

W ramach opracowania opisano podstawy do wypowiedzenia wysokości opłaty z tytułu użytkowania wieczystego, wyjaśniono zasady sporządzania operatu szacunkowego nieruchomości. Przedstawiono także znaczenie aktualności operatu szacunkowego nieruchomości, jego charakter prawny oraz omówiono sposób postępowania w wypadku wypowiedzenia wysokości opłaty użyt-kownikowi wieczystemu.