A person who is a self-employed property holder generally acquires his or her property by sitting after the deadlines set out in the Act. We explain the difference between the legal situation of the person wishing to acquire the whole property by sitting down and the situation of the person wishing to acquire only a share of joint ownership by sitting down.
According to Article 172(1) Act of 23 April 1964 Civil Code (Journal of Laws, item 93, i.e. dated 10 May 2018, Journal of Laws of 2018, item 1025, hereinafter referred to as (c) the property owner who does not own the property acquires the property if he has held the property continuously for years twenty as a spontaneous holder, unless he has acquired possession in bad faith (seat).
Self - possession of a sitting thing
The basic reason for sitting, both in relation to real estate and movable property, is to have the essentials of sitting. The ownership of things in this mode can only be obtained by a person who does not own it, but actually owns the thing like the owner, i.e. is a self-employed holder (see Article 336 KC Civil Code. Comment ed. prof.
dr hab. Edward Gniewek, prof. dr hab. Piotr Machnikowski, Legalis 2017). To the institution of possession, the Civil Code combines legal effect in the form of, inter alia, the presumption of the intrinsic nature of ownership (Article 339 k.c.).
The possessor of things has a duty to demonstrate only the fact of the possession of the thing, but he does not need to prove that he is the master of the thing to himself. The particular practical importance of this presumption exists in the case of an application for a sitting of a property, i.e.
in the case where the law combines legal effects with having an intrinsic property.
The Supreme Court found that the presumption established in Article 339 The KC may not be applied to the sitting of a share owned by another co-owner. In the above context, the court also appealed against the inviolability of the property right as a constitutional guarantee.
Meeting of shares in joint ownership is allowed
The question of presumption expressed in Article 339 k.c. has become the subject of deliberations by the Supreme Court in the context of the premise of having a stand-alone property in the event of sitting in the joint ownership of the property. Supreme Court in the order of the day 4 July 2014(See post. 4 July 2014, II CSK 622/13, Legalis) indicated that the presumption established in Article 339 The KC may not be applied to the sitting of a share owned by another co-owner (hereinafter ‘the Order’).
In his order, the Supreme Court stressed that neither in judicature nor in literature the view that it is permissible to sit in joint ownership is raised. The acquisition by sitting of shares in joint ownership occurs when the property was the subject of sitting of co-ownership (see e.g. the Supreme Court resolution of the day 26 January 1978, III CZP 96/77, OSNCP 1978, No 11, item 195).
According to the statement of reasons, the Court of First Instance has indicated that whoever owns (either personally or through another person) as a co-owner is its co-owner in the fractional part, and that the principal means of this co-ownership (pro indiviso) is to wield all things in common, but in so far as it does not exclude such joint ownership by other co-owners (Article 206 k.c.). Such co-ownership also occurs when the subject of joint ownership remains in administration one of co-owners who carry out these activities on behalf of all, or where the matter is on the management board of a person third, or when it was leased by co-owners to a person third.
Inviolability of ownership
According to the Supreme Court, a change in the power of the co-owner of the property in the fractional parts in relation to the shares (e.g. when the co-owner administers or manages the name of the others) should occur in a way visible to the other co-owners.
Such a requirement arises from the need to protect the right to property, which would be liable to damage if the co-owner entitled to co-ownership the whole could easily result in the loss of the rights of the other co-owners, citing only a change in his will, and thus only a subjective element (cf.
Supreme Court judgment of the day 20 October 1997, II CKN 408/97, OSNC 1998, No 4, item 61 and order of the Supreme Court of 7 January 2009, II CSK 405/08).
For this reason, the Supreme Court found that the presumption established in Article 339 KC cannot be applied in the case of sitting by a co-owner of a share owned by another co-owner see Supreme Court order of the day 1 April 2011, Palettes 2011, No 5-6, p. 154 and of 29 June 2010, III CSK 300/09). In the above context, the Supreme Court also appealed the inviolability of the property right as a constitutional guarantee.
At this point, additional attention should be paid to the Thesis of the Supreme Court – Civil Chamber of 29 November 2018 IV CSK 397/17, according to which the payment of taxes and the cultivation of land do not constitute sufficient grounds for determining the sitting of a share in the ownership of the property.
Just as in the Supreme Court’s order, he also stressed in that judgment that “the power of the co-owner demanding a sitting is to be determined by its conduct rather than by the inactivity of other co-owners. The mere fact that other co-owners do not have co-owners cannot give rise to any facilitation in meeting the conditions of sitting.
The co-owner of the property citing the acquisition by the sitting of the shares of the other co-owners should demonstrate the exercise of the holding of the property exclusively for himself, i.e. with the wish to remove the remaining co-owners from the ownership.’
Written by Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 related to Russell Bedford Dmowski and Associates Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.