Immigration law

The results of the demolition of one of the two separate premises located in a single-family residential building in the light of the resolution of the Supreme Court of May 16, 2019, III CZP 1/19

On May 16, 2019, the Supreme Court in the case reference number No. III CZP 1/19 adopted a resolution which is extremely important for the widespread construction investments in Poland consisting in the construction of single-family houses including two separate residential premises, in particular semi-detached and terraced houses.

The provision of art. 3 point 2a) of the Act of 7 July 1994, the Construction Law defines a single-family residential building as a detached building or a semi-detached, terraced or group building, serving the purpose of satisfying housing needs, constituting a structurally independent whole, in which no more than two dwellings or one dwelling and commercial premises with a total area not exceeding 30% of the total area of ​​the building.

In turn, the provision of art. 2 clause 1c sentence 1 of the Act of June 24, 1994 on the ownership of premises, provides that a separate real estate in a single-family residential building may be a maximum of two independent residential premises.

Therefore, as it results from applicable law, single-family houses may consist of a maximum of two separate residential premises, regardless of whether they have the character of free-standing, semi-detached, terraced or group housing.

Considering the above, it should be noted that the Supreme Court in its resolution of 16 May 2019, III CZP 1/19 stated that „The expiration of separate ownership of the premises as a result of its demolition results in the cessation of separate ownership of the second premises, while shares in common property , so far related to the ownership of two premises, are transformed into shares in the joint ownership of land built up with a building constituting its component part and covering one of the premises. „

Analysed in the resolution of the Supreme Court of May 16, 2019, III CZP 1/19, the cessation of separate ownership of the premises as a result of the demolition of the second of the premises, resulting in the expiry of its separate ownership, is of particular importance for single-family residential buildings, which may consist of a maximum of from two separate premises. After all, the institution of separate ownership of a flat only makes sense if there are two separate premises on such a property, as confirmed by the Supreme Court in its resolution of 19 November 2010, III CZP 85/10, which states that in a building that includes only one premises, it is not possible to establish separate ownership of the premises.

Consequently, the expiry of the separate ownership of one of the premises by virtue of the law itself leads to the cessation of the separate ownership of the other premises, which is a disadvantageous event for the owner of the other of these premises. It should be pointed out that not only is he deprived of the ownership right to a separate premises, he also has certain obligations towards the current owner of the demolished premises.

As a result of the analysed event, between the current owners of two separate premises, to which the shares in the joint property were connected, which is usually the land in front of the building, a fractional co-ownership relationship is created in the entire property. The nature of the property right for such a property is in fact returning to the state before the establishment of separate ownership of the premises.

The above means that the current owner of the demolished premises, being a co-owner of the property with ½ share, may demand from the second co-owner, and the current owner of the second from separate premises, which has not been demolished, admission to joint ownership and use of the property, as well as settlement of all benefits and other revenues and expenses and burdens related to real estate.

Filing such claims can be very painful for the other co-owner, who has been permanently residing in premises which he has owned as his property so far, or benefits from renting it. He will be obliged to take into account the interests of the other co-owner who does not participate in these benefits or personally does not use the premises.

Author team leader DKP Legal Michał Puk
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