Rules for restoring possession of regained Warsaw property to the former owners
Owners of Warsaw property still face barriers in taking over possession of buildings from the city, even though the rules governing delivery of possession were established in an order issued by the Mayor of Warsaw in 2008.
Under Order No. 1777/2008 of the Mayor of Warsaw of 23 June 2008, the heads of Warsaw’s local districts and the directors of the city’s property administration offices are required to deliver possession of buildings to owners which they have gained title to pursuant to Art. 5 of the Warsaw Decree of 26 October 1945.
Delivery of possession of buildings is made on the basis of an application by an owner representing more than 50% of the shares in claims to former registered real estate. The owner must enclose a certificate from the city’s Department of Warsaw Decree and Religious Congregation Matters stating that the building meets the conditions set forth in Art. 5 of the 1945 decree. The application must also enclose the owner’s personal details and address, and an indication of the shares the owner holds in the property. Then it is not necessary to deliver the property directly to all of the former owners (or their heirs).
The other document which is the basis for delivering a building to the former owner is an administrative decision by the Mayor of Warsaw ruling on delivery of the land in perpetual usufruct to the former owners of the real estate or their heirs. This decision requires the owner of a building located on land given in perpetual usufruct to take it over from the relevant organisational unit of the City of Warsaw prior to conclusion with the city of a perpetual usufruct agreement.
The rules for taking over property pursuant to the administrative decision appear simple, but only in a situation where all of the co-owners of the building consent to take over the building. It sometimes happens that some of the co-owners refuse to take over the restored building.
There is a legal distinction between taking over a building on the basis of an order from the Mayor of Warsaw and taking delivery pursuant to a decision by the Mayor of Warsaw on delivery of the land in perpetual usufruct.
According to the order, a building may be taken over by an owner or owners representing over 50% of the shares in the property.
However, in the view of the directors of the city’s real estate administration offices, a building cannot be delivered to only part of the co-owners if the Mayor of Warsaw has already issued an administrative decision establishing the right of perpetual usufruct to the land. They base their position on the obligation arising out of the administrative decision, which must be performed in its entirety and not only in part.
As a result, former owner of Warsaw Decree properties who have received an administrative decision on delivery of the land in perpetual usufruct are treated differently from those who have not yet received such a decision but are still waiting for it to be issued.
The practice of the real estate administration offices should not be condoned. The legal successors of the former owners of regained real estate holding a decision on return of the property should have at least the same rights as those who still await issuance of such decision. But the situation is the opposite. Paradoxically, those with fewer rights (without a restitution decision) may obtain return of the building and begin to administer the building (and thus reap the fruits of the property), while those whose rights have already been confirmed by a restitution decision are in a worse situation because they cannot count on taking over the property.
This is particularly visible in cases where there is a lack of agreement among all of the co-owners to take over the building after issuance of a restitution decision. A refusal to take over the real estate by just one co-owner holding a small share in the real estate deprives the other (majority) owners of the ability to take over the property.
This situation is particularly burdensome and deplorable because such an owner’s refusal to cooperate and the erroneous practice followed by the real estate administration offices creates uncertainty not only for the co-owners of the real estate, but also for the tenants, and this should not occur.
Elżbieta Żywno, Reprivatisation Practice, Wardyński & Partners
