In the limited partnership, the shareholders represent the company outside (Article 137 ksh) and conduct her affairs (Article 140 (ksh), except in cases transferred by the provisions of the Ksh or the articles of association to the powers of the general meeting or the supervisory board. In addition, some cases, despite being assigned to the general meeting, require the approval of the subcontractors.
Cases which, subject to annulment, require a resolution of the general meeting taken with the consent of all or most of the subcontractors have been defined under Article 146(2) and 3 ksh. This catalogue includes, among others, a resolution on the sale of real estate. It should be stressed here that this provision refers only to the ‘disposal’ of the company's property, which would allow it to be assumed that the acquisition of the property by the company does not require a general meeting resolution.
Reference to public limited liability company rules
In this context, some doubts may arise as to the content of the provision Article 126(1)(2) Ksh and the reference in it ordering the application of the provisions of Ksh concerning the limited liability company respectively. Name Article 393(4) ksh. which, in the case of public limited-liability companies, requires a resolution of the general meeting in relation to the acquisition and disposal of real estate, perpetual use or participation in real estate.
This leads to a situation where the question arises whether a resolution of the general meeting is required solely for the sale of immovable property (Article 146(2)(4) (ksh) or its acquisition by the company Article 393(4) (ksh). Before the real estate sale transaction, this is a key issue that needs to be clarified.
two separate views of doctrine
In this regard, doctrine can be encountered two views which separately perceive the source of the competence of the general meeting in the limited partnership. first of which it is considered that the powers of the general meeting specified under Article 146 ksh should be based on an article.
Article 126(1)(2) ksh supplemented by the competence of the assembly included under Article 393 ksh concerning public limited liability companies.
second According to the opinion, the statutory competence of the general meeting in the limited partnership is described under Article 146 and other provisions of Chapter IV of Title II of the Code of Commercial Companies in a manner exhaustive And there's no reason to reach here, by Article 126(1)(2), to supplement those competences with those calculated under Article 393, and are not listed in the regulations on the limited partnership.
In particular, by virtue of the law in the limited joint-stock company, only divestment of the company's real estate (Article 146(2)(4)), but no longer acquire it (Article 393(4)) (M. Rodzynkiewicz (aut.) in: Commercial Companies Code. Comment, 2018 t. commentary on Article 146, thesis 3, LEX/el.).
Currently second from the views presented, he leads among the representatives of doctrine.
Acquisition of real estate without resolution
For real estate (Article 146(2)(4) (ksh) the requirement to adopt a resolution of the general meeting is limited to their disposal only. Thus, the acquisition of the property is subject to free operation by the subcontractors conducting the company and representing the company (A. Szumański in: Code of Commercial Companies. Comment to Article 1-150 KSH, Tom I, S. Sołtysiński (ed.), 2012, commentary on Article 146, thesis 6, Legalis/el.).
Practical problems
The fact that there are different positions of doctrine as to the source of the competence of the general meeting in the limited partnership can be demonstrated by the fact that the notary will require a resolution of the general meeting also when the company acquires the property. The conclusion by an experienced lawyer of the relevant provisions in the articles of association of the limited partnership avoids such a situation.
Author: Magdalena Mączka Legal advisor, Russell Bedford Dmowski & Partners Law Firm Sp. k.