Real Rights (PDF)

CONCEPT AND OBJECTS OF REAL RIGHTS 1. Characteris cs of real rights a. Objec ve meaning – set of rules pertaining to real rights b. Subjec ve meaning – subjec ve rights pertaining to things and are e...

CONCEPT AND OBJECTS OF REAL RIGHTS 1. Characteris cs of real rights a. Objec ve meaning – set of rules pertaining to real rights b. Subjec ve meaning – subjec ve rights pertaining to things and are e ec ve against everyone 2. Characteris cs of real rights c. E ec ve against everyone (erga omnes) d. Closed catalogue ( numerus clausus) e. Dominance of uncondi onally opera ng norms (iura cogentes) 3. Divisions of real rights according to the scope of competences 4. Object of real rights 5. Divisions of real rights according to independence ff ti ti ti ti ti ti ti ti ff ti  6. Division of real rights according to transferability 7. Concept of things a. Art. 45. Civil Code Within the meaning of this Code “things” are material objects only b. Art. 44 Civil Code Property is ownership and other property rights 8. Things vs Animal Art. 1 Animal Protec on act a. The animal as a living creature, capable of su ering, is not a thing. The human being should respect, protect and provide care to it. b. All ma ers not regulated by this act will be governed by the regula ons applicable to things 9. Real Estate a. Art. 46 Civil code tt ti ff ti  - Real Estate is part of the Earth’s surface cons tu ng a separate object of ownership (land), as well as buildings if, under speci c regula ons, they cons tute an object of ownership separate from the land - The keeping of land and mortgage registers is governed by separate regula ons b. Art. 143 Civil Code - Within limits set by the social and economic purpose of land, the ownership of land extends to the space over and under its surface. This provision does not prejudice regula ons on rights to waters - In extraordinary cases a building can be a real estate 10. Agricultural real estate a. Art. 46 Civil Code Agricultural real estate (agricultural land) is any real estate which is or may be used to conduct agricultural produc on, both crop and animal farming, including gardening, hor culture and sh farming. 11. Movable a. de ni on - Movable property includes items that can be transported without altering them, unlike immovable property like land b. goods in specie, and fungibles - Goods in specie: Unique, speci c items (e.g. a pain ng) - Fungibles: Interchargable items (e.g. grains, money) c. divisible and indivisible things - Divisible: Can be split without losing value (e.g. wheat) - Indivisible: Cannot be split without losing value (e.g. a car) d. in legal transac ons and barred from it - In transac ons: Movables are commonly sold or leased - Barred: Some items (e.g. hazardous materials) may be restricted by law 12. Compononent part a. Art. 47 Civil Code - A component part of a thing cannot be a separate object of ownership or other real rights - A component of part of a thing is anything which cannot be separated therefrom without damaging or substan ally altering the en re thing or without damaging or substan ally altering the separated object - Objects which are a ached to a thing for temporary use only do not cons tute a component part of a thing 13. Appurtenances a. Art.51 Civil Code - Appurtenances are movables needed to make use of another thing (the principal thing) in accordance with its purpose if they have an actual connec on with it corresponding to that purpose - A thing does which does not belong to the owner of the principal thing cannot be an Appurtenance fi ti ti ti ti ti tt fi ti fi ti ti ti ti ti ti ti ti ti ti ti fi  - An appurtenance does not lose its character by being temporarily deprived of the actual connec on with the principal thing 14. Pro ts a. Art. 53 Civil Code - The natural pro ts from a thing are its fruits and other component parts separated from it if, according to the principles of proper management, they cons tute the normal gains from the thing - Civil pro ts from a thing are gains which a thing brings on the basis of a legal rela onship b. Art. 54 Civil Code - Pro ts from rights are gains which that right brings in accordance with its social and economic purpose -May be owned by an owner (Art. 140 Civil Code) or someone else (e.i. art. 693 1 Civil Code) POSSESSION 1. Possession a. Actual control of a thing - owner-like possessor: acts as the owner, using and controlling the item as - dependent possessor: Holds the item but depends on another’s rights (e.g. tenant) - actual holder of a thing: Physically holds or controls the item, regardless of ownership rights b. Elements: - corpus: Physical control or holding of the item fi fi fi fi ti ti ti  - animus: Inten on to possess or control the item as one’s own 2. Good faith of the possessor a. Art. 169 Good Faith of the possessor - If a person who is not en tled to dispose of a movable disposes of it and hands it over to the acquirer, the la er acquires ownership at the me he takes possession of the thing unless he is ac ng in bad faith - However, if a thing lost, stolen or otherwise mislaid by the owner is disposed of before three years have passed from the me it was lost, stolen or mislaid, the acquirer may require ownership only upon the lapse of the said three years. This restric on does not apply to money or bearer documents or to things acquired at an o cial public auc on or in the course of execu on procedure 3. Presump ons pertaining to possession a. Presumed owner-like possession (339 CC) - person in possession is presumed to possess the item as if they were the owner b. Presumed con tnuity (340 CC) - Possession is presumed to con nue unless proven otherwise c. Presumed compliance with the law (341 CC) - Possession is presumed to comply with legal requirements d. uninterrupted possession (345 CC) - Possession is considered con nuous unless there is evidence of interrup on 4. Protec on of possession a. Art. 342 CC - Possession cannot be willfully breached even if the possessor acted in bad faith b. Art. 343 CC - A possessor may use self-defense to repel a willful breach of his possession - A possessor of real estate may immediately, a er a willfull breach of his possession, restore the previous status by his own ac ons; however, when doing so, he cannot use violence agains other persons. The possessor of a movable, if threatened by the danger of irreparable damage, may immediately , a er having been wilfully deprived of possession , use the necessary self-help in order to restore the previous status - The provisions of the preceding paragraphs apply accordingly to an actual holder 5. Claim for protec on a. Art. 344 CC - A possessor can claim restora on of the previous state and cessa on of breach against a person who wilfully breached his possession and agains a person for whose bene t the breach took place. This claim is not condi onal on the possessor’s good faith or the compliance of his possession with the legal status unless a nal non-reversible decision of a court or other state authority appointed to hear cases of a given type states that the state of possession which resulted from the breach was lawful - A claim expires if it is not pursued within one year of breach tt fi ti ti ti ti ffi ti ti ti ti ti ti ti ti ti ti ti ft ti fi ti ti ti ft  Ownership 1. Concept of ownership a. Art.140 CC - Within the limits set by the law and the pricniples of community life, an owner may, to the exclusion of other persons, use a thing in accordance with the social and economic purpose of his right, and may, in par cular, collect the pro ts and other revenues from the said thing. Within the same limits, he may dispose of the thing 2. Ways of Acquisi on and Loss of ownership a. transfer b. posi vte prescrip on c. abandonment d. appropria on f. nding g. separa on, transforma on, a achment, mix h. extra-civil ways 3. Consensual and real legal act fi ti ti ti ti ti ti ti fi tt  a. Art. 155 CC - A sale, exchange, dona on, real estate aliena on or other contract crea ng an obliga on to transfer the ownership of goods in specie transfers the ownership to the acquirer unless a speci c regula on provides otherwise or the par es decide otherwise - If fungibles are the subject of a contract crea ng an obliga on to transfer the ownership of the fungibles, the transfer of possession is required. The same applies if the subject of the future contract crea ng an obliga on to transfer ownership is future things. 4. Transfer of ownership of Real Estate a. Art. 157 CC - The ownership of Real Estate cannot be transferred on a condi on or subject to a me being - If a contract crea ng an obliga on to transfer the ownership of real estate is executed on a condi on or subject to a me limit, an addi onal agreement between the par es containing their uncondi onal consent to the immediate transi on of ownership is required to transfer the ownership b. Art. 158 CC - Form. A contract crea ng an obliga on to transfer the ownership of real estate should be executed in the form of a notarial deed. The same applies to a contract transferring ownership which is executed in order to perform an earlier obliga on to transfer the ownership of real estate; the obliga on should be speci ed in the deed. 5. Sale of agricultural real estate a. Art. 166 CC - If a co-owner of agricultural real estate sells his share or a part of his share in the co-ownership, the remaining co-owners have the right of rst refusal, if they run a farm on the co-owned land. This does not, however, apply if a co-ownership together with the said farm or if the acquirer is another co-owner or a natural person who would inherit the farm from the seller 6. Adverse possession of real estate Art. 172 CC - A possessor of real estate who is not the real estate owner acquires ownership if he possesses the real estate uninterruptedly for twenty years as an owner-like possessor unless he gained possession in bad faith (adverse possession) - A er the lapse of thirty years, the possessor of real estate acquires ownership even if he gained possession in bad-faith Art. 173 CC - If the owner of real estate against whom an adverse possession period is running is a minor, the adverse possession cannot end un l two years a er the owner a ains majority. 7. Adverse possession of a movable a. Art. 174 CC - The possessor of a movable who is not the movable owner acquires ownership if he possesses the movable uninterruptedly for three years as an owner-like possessor unless he possesses it in bad faith. 8. Adding me of the predecessor ft ti ti ti ti ti ti ti ti ti ti ti ti ti fi ti ti ft ti ti tt ti ti ti ti fi ti ti ti ti ti fi  a. Art. 176 CC - § 1. If possession is transferred while the adverse possession period is running, the present possessor may add the me of possession by his predecessor to the me of his own possession. If, however, the previous possessor gained possession of the real estate in bad faith, the me of his possession may be added only if, together with the present possessor's me of possession, it amounts to at least thirty years. - § 2. The above provisions apply accordingly if the present possessor is an heir of the previous possessor. 9. Abandonement and acquisi on a. Art. 180 CC - An owner may relinquish the ownership of a movable thing by abandoning it with such inten on. b. Art. 181 CC - The ownership of an ownerless movable is acquired by the movable being taken in owner-like possession. 10. Finding a. Art. 187. CC - § 1. The found thing that is not collected by the authorized person within one year from the date of delivery of the summons, and if the summons is impossible - within two years from the date of nding it, becomes the property of the nder if he has ful lled his obliga ons. However, if the item has been returned to the staroste, the nder becomes its owner if he / she received the thing within the me limit set by the staroste. - § 2. The found thing which is a monument or archival material a er the expiry of the me limit for its collec on by an authorized person becomes the property of the State Treasury. Other things found become the property of the poviat a er the deadline for their collec on by the nder. - § 3. Upon the acquisi on of ownership of the property by the nder, the poviat or the State Treasury, the limited rights in rem shall expire. b. Art. 189. CC If an item is found in such circumstances that the search for the owner would be obviously pointless, it becomes the subject of co-ownership in frac onal parts of the nder and the owner of the property on which it was found, but if the item is a monument or archival material, it becomes the property of the State Treasury and the nder is obliged to hand it over immediately to the competent starost. 11. Acquisi on of pro ts a. Art. 190. CC - A person en tled to collect the natural pro ts of a thing acquires their ownership by separa ng them from the thing. 12. Produc on a. Art. 192. CC - § 1. Anyone who produces a new movable with another person's materials becomes its owner if the value of the workmanship is higher than the value of the materials. - § 2. If a thing is processed in bad faith or if the value of the materials is higher than the value of the workmanship, the thing produced becomes the property of the owner of the materials. 13. Joining, Mixing ti ti ti ti ti fi fi fi ti ft fi ti ti fi ti fi ti ti ti ti fi fi ft fi ti ti ti ti fi  a. Art. 193. CC - § 1. If movables are joined or mixed in such a manner that it would be extremely di cult or costly to restore them to their previous condi on, their current owners become co-owners of the whole. Shares in the co-ownership are set as a propor on of the value of the things joined or mixed. - § 2. However, if one of the joined things has a value considerably greater than the others, the things of lesser value become its component parts. 14. Swarm of Bees a. Art. 182. CC - § 1. A swarm of bees becomes ownerless if the owner does not nd it within three days of the day the bees le the hive. When pursuing the swarm, the owner may enter another person's land but he should remedy any resul ng damage. - § 2. If the swarm of bees comes to rest in another person's unoccupied beehive, the owner may demand that it be returned upon reimbursement of costs. - § 3. If the swarm of bees comes to rest in another person's occupied beehive, it becomes the property of the person who owns the swarm which is in the beehive. The former owner is not en tled in this case to a claim based on unjust enrichment. 15. Protec on of ownership a. Art. 20 Cons tu on - A social market economy, based on the freedom of economic ac vity, private ownership, and solidarity, dialogue and coopera on between social partners, shall be the basis of the economic system of the Republic of Poland. b. Art. 21 Cons tu on - 1. The Republic of Poland shall protect ownership and the right of succession. - 2. Expropria on may be allowed solely for public purposes and for just compensa on. c. Art. 64 Cons tu on - 1. Everyone shall have the right to ownership, other property rights and the right of succession. - 2. Everyone, on an equal basis, shall receive legal protec on regarding ownership, other property rights and the right of succession. - 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right. d. Main Claims: - 1. rei vindica o (art. 222 § 1 KC), - 2. ac o negatoria (art. 222 § 2 KC). !- in case of real estate no statutory limita ons (art. 223 CC) e. Supplementary Claims: - paying a fee (art. 224 CC), - return of pro ts (art. 224 CC), - compensa on for deteriora on or loss (art. 225 CC). ti ft ti ti ti ti fi ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi ti ti ffi  - ! claims depend on good or bad faith of the possessor 16. Claims of possessor against an owner a. Art.226 CC - § 1. An owner-like possessor ac ng in good faith may demand that the necessary outlays be reimbursed insofar as they are not covered by the bene ts which he gained from the thing. He may demand that other outlays be reimbursed insofar as they increase the value of the thing at the me it is handed over to the owner. If, however, the outlays were made a er the owner-like possessor ac ng in good faith learned that a court ac on had been brought against him to hand-over the thing, he may demand that only the necessary outlays be reimbursed. - § 2. An owner-like possessor ac ng in bad faith may demand that only the necessary outlays be reimbursed and only insofar as the owner would have become unjustly enriched at his expense. 17. Co-ownership a. Art. 195 CC - One thing may be indivisibly owned by several persons (co-ownership). b. Characteris cs: - one object, - several subjects, - joint right. c. Art. 196 CC - § 1. Co-ownership is either frac onal or joint. - § 2. Joint co-ownership is regulated by the provisions on the rela ons from which it stems. The provisions of this sec on apply to frac onal co-ownership 18. Types of Co-ownership ti ti ti ti ti ti ti fi ft ti ti ti  19.Shares a. Art. 197 CC - Co-owners' shares are presumed to be equal. b. Art. 204 CC - The majority of co-owners is calculated according to the size of their shares. c. Art. 207 CC - Pro ts and other revenues from a co-owned thing accrue to the co-owners in propor on to the size of their shares; the co-owners bear the expenses and charges connected with the co-owned thing in the same propor on. 20. Possession of a Co-Owned thing a. Art. 206 CC Each co-owner is en tled to jointly possess a co-owned thing and to use it to an extent compa ble with the joint possession and use of the thing by the remaining co-owners. 21. Disposi on of shares vs Disposi on of a thing a. Art. 198 CC - Each co-owner may dispose of his share without the other co-owners' consent. b. Art. 199 CC - The disposi on of a co-owned thing and other acts which exceed the scope of ordinary management require the consent of all co-owners. In the absence of such consent, the co-owners whose shares are equal to at least one half may demand that the court decide taking into account the purpose of the intended act and the interest of all the co-owners. 22. Management of a Co-Owned thing a. Art. 200 CC - Each co-owner is obliged to cooperate in the management of a co-owned thing. b. Art. 201 CC - The consent of the majority of the co-owners is required for ordinary management of a joint thing. In the absence of such consent, each of the co-owners may demand court authoriza on to perform an act. c. Art. 205 CC - A co-owner exercising management of a co-owned thing may demand from the remaining co-owners remunera on corresponding to the jus ed input of his labor. d. Art. 208 CC - Each co-owner not exercising management of the co-owned thing may demand an account of the management at appropriate dates. fi ti ti ti ti ti ti ti fi ti ti ti  23. Court control of management a. Art. 202 CC - If the majority of the co-owners decide to perform an act in gross contradic on to the rules of proper management of a co-owned thing, each of the other co-owners may demand that a court decide. b. Art. 203 CC - Each co-owner may apply to the court to appoint an administrator if the majority of the co-owners cannot reach agreement on material issues concerning ordinary management, or if the majority of the co-owners violate the principles of proper management or act to the detriment the minority. 24. Protec on of a Co-Owned thing a. Art. 209 CC - Each co-owner may perform any ac ons and pursue any claims aimed at preserving the joint right. 25. Cancella on of Co-Ownership - physical division (art. 211 CC), - awarded to one/several (212, 214 CC), - disposi on (art. 198-199 CC). a. Art. 220 CC - A claim for cancella on of co-ownership is not subject to the statute of limita ons. PERPETUAL USURFUCT 1. Perpetual usufruct a. pertains to land owned by State Treasury and local government units (art. 232 CC), ti ti ti ti ti ti ti  b. bene ciary: natural person or legal person (art. 232 CC), c. given by contract (art. 233, 239 CC), d. concept of perpetual usufruct (art. 233 CC), e. annual fee (238 CC), f. period of 40-99 years (236 CC), g. provisions on real estate ownership apply accordingly (art. 234 i 237 CC). 2. Termina on of perpetual usufruct a.lapse of me, - When the speci ec dura on of usufruct expires it naturally ends b. by par es consent, - The involved par es mutually agree to terminate usufruct c. waiver, - The usufructuary voluntarily renounces their rights d. transfer to owner, - Ownership rights are fully returned to the property owner, merging the usufruct and ownership e. termina on due to improper use - If the usufructuary misuses the property or violates its intended use, it can result in termina on f. expropria on. - If the property is taken by the state for public purposes, the usufruct can be terminated 3. Termina on of perpetual usufruct a. Art. 235 CC - § 1. Buildings and other facili es erected on land owned by the State Treasury, local government units or their associa ons by a perpetual usufructuary become his property. The same applies to buildings and other facili es which the perpetual usufructuary acquired under relevant regula ons at the me the contract for giving land in perpetual usufruct was executed. - § 2. The perpetual usufructuary's ownership of buildings and facili es on land used is a right related to perpetual usufruct. b. Art. 241 CC - On expiry of the perpetual usufruct, the encumbrances established thereon are also ex nguished. 4. Use contraty to the contract a. Art. 240 CC - A contract on giving in perpetual usufruct land owned by the State Treasury or by local government units or their associa ons may be dissolved before the lapse of the period speci ed therein if the perpetual usufructuary uses the land in a manner which is obviously contradictory to the purpose speci ed in the contract, par cularly, if, contrary to the contract, the usufructuary has failed to erect the buildings or facili es speci ed therein. ti ti fi ti ti ti ti ti ti ti ti fi ti fi ti ti ti ti ti fi ti ti ti fi  b. Art. 243 CC - A claim against a perpetual usufructuary for remedying damage arising from improper use of land owned by the State Treasury or by local government units or their associa ons, as well as a claim of the perpetual usufructuary for payment for the buildings and facili es exis ng on the day the land is returned becomes barred by statute of limita ons three years a er that date. 5. Transforma on into ownership a. 1 op on: Legal basis: Act on Transforma on of the Perpetual Usufruct into Ownership. Deadline: Natural and legal persons being bene ciaries on 13 October 2005 may request transforma on b. 2 op on: From January 1, 2019, the right of perpetual usufruct of land developed for housing purposes, transformed into the ownership tle to this land. Residents, without the need to ll in the law, a cer cate a es ng to the transforma on into real property right. Early informa on on the amount of the transfer fee. LIMITED REAL RIGHTS 1. Limited real rights a. Numerus clausus: - usufruct, - The right to use or bene t from another person’s property without owning it - easement, - A right allowing one person to use another’s land for a speci c purpose, such as access to road or u lity - coopera ve ownership right to premises, - A right to use and Co-own premises within a coopera ve , o en seen in housing coopera ves ti ti ti ti ti fi ti tt ti ti ti fi fi ti ti ft ti ti ti ti fi ti ti fi ti ft  - pledge, - A security interest I movable property or rights to secure debt, where the pledged property serves as collateral - mortgage. – A security interest in real estate to secure the repayment of a loan, allowing the lender to claim the propery If the borrower defaults 2. Crea on of limited real rights a. usually a contract (art. 245 CC), b. extraordinarly legal act (eg. statutory pledge, art. 432 § 2 CC). c. Art 432 - § 1 The owner of the land may take someone else's animal, which it causes damage to land, if the seizure is necessary to secure the claim for damages. - § 2. The owner of the land obtains the statutory pledge on the seized animal to secure the compensa on due to him and the costs feeding and maintaining the animal. 3. Applica ons of provisions on ownership a. Art. 245 CC - § 1. Subject to the excep ons provided for by the law, the provisions on ownership transfer apply accordingly to the establishment of a limited real right. - § 2. However, the provisions on inadmissibility of a condi on or period do not apply to the establishment of a limited real right on real estate. Notarial deed form is required only for the declara on of the owner establishing the right. b. Art. 251 CC - The provisions on protec on of ownership apply accordingly to protec on of limited real rights. 4. Contract pertaining to the limited real rights a. Art. 245 CC - The transfer of a limited real right to real estate requires a contract between the en tled person and the acquirer, and, if the right is disclosed in the land and mortgage register, an entry in this register unless a speci c regula on provides otherwise. b. Art. 248 CC - § 1. In order to change the substance of a limited real right, a contract is required between the en tled person and the owner of the thing encumbered, and if the right is disclosed in the land and mortgage register, an entry in this register. - § 2. If a change in the substance of the right a ects the rights of a third party, such a change requires consent of that person. A declara on of the third party should be made to one of the par es. 5. Ex nguishing of limited real rights a. Art. 246 CC - § 1. If an en tled person waives his limited real right, the right is ex nguished. A declara on on the waiver should be made to the owner of the thing encumbered. - § 2. However, if the law does not provide otherwise, and the right is disclosed in the land and mortgage register, in order for it to be ex nguished it has to be deleted from the land and mortgage register. b. Art. 247 CC ti fi ti ti ti ti ti ti ti ti ff ti ti ti ti ti ti ti ti ti  - A limited real right is ex nguished if it is transferred to the owner of the thing encumbered or if the person holding such a right acquires the ownership of the thing encumbered. 6. Priority of limited real rights a. Art. 249 CC - § 1. If several limited real rights encumber the same thing, the right which was established at a later date cannot be exercised to the detriment of the right which was established earlier (priority). - § 2. The above provision does not prejudice the provisions which establish priority di erently. b. Art. 250 CC - § 1. The priority of limited real rights may be changed. The change does not prejudice the rights which have lower priority than the right which yields priority and higher than the right which takes priority over the right which yields priority. - § 2. In order to change priority of limited real rights, a contract is required between the person whose right is to yield priority and the person whose right is to have priority over the right yielding priority. If at least one of those rights is disclosed in the land and mortgage register, an entry in the land and mortgage register is also required. - § 3. A change of priority becomes ine ec ve at the me the right yielding priority expires. 7. Concept of Usufruct a. Art. 252 CC - A thing may be encumbered with a right to use and to collect pro ts (usufruct). b. Art. 253 CC - § 1. The scope of the usufruct may be limited by designated pro ts being excluded from the thing. - § 2. Exercising a usufruct of real estate may be limited to a designated part of the real estate. c. Art. 254 CC - A usufruct is non-transferable. d. Art. 256 CC - A usufructuary should exercise his right in accordance with the requirements of proper management. 8. Outlays and Repairs a. Art. 259 CC - An owner has no obliga on to make outlays on a thing encumbered with a usufruct. If he has made such outlays, he may demand that the usufructuary return them according to the provisions on managing another person's a airs without a mandate. b. Art. 260 CC - § 1. A usufructuary is obliged to carry out repairs and other outlays related to ordinary use of a thing. He should immediately inform the owner of the need to carry out other repairs and outlays and permit the la er to perform the required work. - § 2. If the usufructuary makes outlays which he is not obliged to make, the provisions on managing another person's a airs without a mandate apply accordingly. 9. Usurfuct’s Expiry tt ff ff ti ti ff ti ti fi fi ff  a. Art. 255 CC - A usufruct expires if not exercised for ten years. b. Art. 266 CC - A usufruct established in favor of an individual expires at the latest on his death. 10. Easements a. easement appurtenant, b. easement in gross, c. transmission easement. 11. Concept of Easement Appurtenant a. Art. 285 CC - § 1. Real estate may be encumbered in favor of the owner of other real estate (dominant estate) with a right under which the owner of the dominant estate may use the servient estate for a speci ed purpose, or the owner of the servient estate becomes limited in taking certain ac ons with respect to it, or under which the owner of the servient real estate is not allowed to exercise certain rights which he holds with respect to the dominant estate on the basis of provisions on the substance and exercise of ownership (easement appurtenant). - § 2. The sole purpose of an easement appurtenant is to increase the usefulness of the dominant estate or its designated part. b. Art. 288 CC - An easement appurtenant should be exercised in such a manner as to cause as li le inconvenience as possible in the use of the servient estate. 12. Right of Way a. Art. 145. Easement by necessity. - § 1. If real estate does not have suitable access to a public road or to farm buildings belonging to it, the owner may demand that the owners of adjacent land establish, against payment, an easement by necessity (right of way). - § 2. A right of way is established with account taken of the needs of the landlocked real estate and with the least burden to the land through which the way is to run. If the need to establish a right of way results from the sale of land or another legal act, and the interested par es do not reach an agreement, the court will, provided that it is possible, order the way to be established on the land which was the subject of that legal act. - § 3. The establishment of a right of way should take into account social and economic interests. 13. Establishment of Easement Appurtenant a. contract, b. court’s decision, c. posi ve prescrip on (adverse possession). 14. Termina on of Easement Appurtenant a. non-execu on for 10 years (art. 293 CC), ti ti ti ti ti ti tt fi  b. change in circumstances, par cular burdersome, not essen al (art. 294 CC), c. lost signi cance for the dominant estate (art. 295 CC), d. division of real estate (art. 290 CC). 15. Easement in Gross a. Art. 296 CC - Real estate may be encumbered in favor of a designated natural person with a right which corresponds to easement appurtenant (easement in gross). b. Art. 299 CC - An easement in gross expires with the death of the bene ciary at the latest. c. Art. 300 CC - Easements in gross are non-transferrable. Nor can the right to exercise them be transferred. d. Art. 304 CC - An easement in gross cannot be acquired by adverse possession. 16. Right of Habita on a. Art. 301 CC - § 1. A person having the right of habita on may house his spouse and minor children in the dwelling unit. He may house other persons only if they are dependant on him or if they are needed to run his household. Children housed as minors may remain in the dwelling unit also a er a aining majority. - § 2. It may be agreed that on the bene ciary's death the right of habita on passes to his children, parents and spouse. b. Art. 302 CC - § 1. The bene ciary of a right of habita on may use the rooms and facili es intended for the common use of the occupants of the building. - § 2. The provisions on usufruct by natural persons apply accordingly to mutual rela onships between the bene ciary of a right of habita on and the owner of the servient estate. 17. Transmission easement a. Art. 305 CC - Real estate may be encumbered with a right in favor of an entrepreneur who intends to construct or which owns the facili es referred to in Ar cle 49 § 1 under which the entrepreneur may use the servient estate within a designated scope, in accordance with the purpose of the facili es (transmission easement). - Either part may demand that an easement be established (art. 305 CC). 18. Concept of Pledge a. Art. 306 CC - § 1. In order to secure a given claim, a movable may be encumbered with a right under which the creditor may seek sa sfac on from a thing regardless of whose property it has become and with priority over the personal creditors of the owner of the thing, save for those who under the law hold special priority. - § 2. A pledge may also be established for the purpose of securing a future or condi onal claim. fi fi ti ti fi ti ti ti ti ti fi ti ti fi ti ft tt ti ti ti ti ti  19. Characteris cs of a Pledge a. Art. 311 CC (ine ec veness of a commitment not to dispose) - A s pula on whereby the pledgor commits to the pledgee not to dispose of or encumber a thing before the pledge expires is invalid. b. Art. 323 CC (accessory nature of a pledge) - § 1. The transfer of a claim secured by a pledge entails the transfer of the pledge. If the claim is transferred without the pledge, the pledge is ex nguished. - § 2. A pledge cannot be transferred without the claim which it secures 20. Bene ts of the Creditor a. Art. 314 (scope of security) - A pledge also secures claims for interest for the last three years before the thing is sold in execu on or bankruptcy proceedings, awarded costs of proceedings in an amount of up to one-tenth of the capital and other claims for accessory performances, especially a claim for compensa on for non-performance or improper performance of an obliga on and for reimbursement of outlays on a thing. b. Art. 317 (limita ons does not exclude sa sfac on) - The passing of a limita ons period for a claim secured by a pledge does not prejudice the pledgee's right to obtain sa sfac on from the pledged thing. This provision does not apply to claims for interest or other accessory performances. 21. Mortgage a. real estates are subject to mortgage, b. must be published in mortgage book, c. secures monteraty debt, d. scope of security: main debt, costs, intrests, e. prohibi on of disposi on is impermissible, f. statutory limita on does not a ect execu on, g. accessory character. 22. Coopera ve ownership right to premises a. disposable, inheritable, b. trasfer form: notary deed, c. subject to rent, d. right to request transforma on into ownership. MORTGAGE BOOKS ti fi ti ti ti ti ti ti ti ti ff ti ti ti ti ff ti ti ti ti ti ti ti  1. Mortgage Books a. purpose: to determine legal status of real estates, b. presump ons: entries are in accordnance with actual legal status, c. priority of precedence, d. structure of books: 1. real estate, 2. ownership and perpetual usufruct, 3. limited real rights, 4. mortgage, e. basis of entry: notarized signature, owner’s declara on, f. obliga on of no ca on ( ne 500-10 000 PLN), g. access to books and source documents. ti ti ti fi ti fi ti  CIVIL LAW 1. Private law characteris cs a. Equality of subjects b. Par es autonomy c. Freedom of contracts d. Mostly property rela ons e. Mostly civil law 2. Divisions of Civil Law a. General provisions b. Real rights c. Obliga ons d. Succession e. Intellectual property law f. Family law g. Commercial law h. Labor law 3. Principles of Civil Law a. Principle of protec on of human beings b. Principle of autonomy c. Principle of equality of subjects d. Principle of equal protec on of property e. Principle of equity ti ti ti ti ti ti  f. Principle of security of economic transac ons g. Principle of unity of civil law SUBJECTS OF CIVIL LAW 1. Subjects of civil law a. Natural persons - Human beings b. Legal persons - Private: Corpora ons, founda ons, associa ons - Public: Government en es, public universi es, state-owned companies c. Imperfect legal persons (organiza onal units which are not accorded legal personality, but do have legal capacity) - Partnerships that do not have full legal personality but can enter contracts and own property in some jurisdic ons - Certain trusts or estates in administra on 2. Legal capacity and capacity for legal acts a. Legal capacity - Ability to hold rights and obliga ons under the law ti ti ti ti ti ti ti ti ti ti ti  b. No capacity for legal acts - No ability to independently perform legal acts and create legal e ects c. Limited capacity for legal acts - The restricted ability to independently perform legal acts and create legal e ects d. Full capacity for legal acts - The unrestricted ability to independently perform legal acts and create legal e ects Capacity for legal acts: No Capacity Infants, incapacitated persons (both have legal capacity) Can hold rights (via representative) Cannot independently perform legal acts Limited Capacity Older minors, partially incapacitated Can perform simple legal acts independently Requires consent for significant acts Full Capacity Adults with no restrictions Fully independent in legal transactions No restrictions 3. Termina on of legal capacity of a natural person a. Death b. Declara on of death Death Declaration of Death Cause Natural or accidental biological death Presumed death due to disappearance Proof Certified by a medical authority Determined by a court after legal proceedings Timing Immediate After a legally defined waiting period Reversal Not possible Can be reversed if the person is found alive 4. Legal persons ti ti ff ff ff  a. Has organs b. Dis nct organiza on c. Law accords legal personality d. Usually registra on 5. Crea on Methods of Legal Persons a. State acts system b. Concession system c. Norma ve system 6. Examples of legal persons a. State Treasury b. Local Government Units c. Public Universi es d. Public Hospitals e. Government Agencies f. Capital Companies g. Poli cal Par es h. Founda ons 7. Types of legal persons a. Departmental – Extension of government, Hospitals, etc. b. Corporate – Private companies, Non-Pro t organisa ons, Municipal corpora ons c. State Treasury 8. Legal capacity and capacity for legal acts of legal persons a. Legal capacity b. Capacity for legal acts 9. Termina on of legal persons a. Liquida on b. Insolvency 10. Imperfect legal persons a. No on - Par al legal recogni on - Dependent nature - Limited capacity b. Legal capacity and capacity for legal acts ti ti ti ti ti ti ti ti ti ti ti ti ti ti fi ti ti  - Legal capacity, Imperfect legal persons may: Hold certain rights and obliga ons within a limited scope Own assets, enter contacts etc. but typically under supervision Be limited to speci c purposes - Capacity for legal acts Dependence on representa on Restricted autonomy c. Examples - Unincorporated associa ons - Trusts - Founda ons without full legal personality - Public agencies without corporate status 11. Status of civil law partnership a. Legal person - Independent of its partners - Rights and obliga ons - Examples b. Imperfect legal person - Dependent nature on the partners - Capacity for legal acts under the collec ve agreements - Liability Partners are personally liable 12. Consumer a. Art.22 KC - A consumer is any natural person performing a legal act with an entrepreneur which is not directly related to his business or professional ac vity 13. Enterpreneur a. Art 43. KC - An entrepreneur is a natural person, a legal person or an organiza onal unit conduc ng business or professional ac vity on its own behalf 14. Economic ac vity a. Art 3. Act on Entrepreneurs - Economic ac vity is an organized pro t-making ac vity, conducted in its own name and con nuous fashion ti ti ti ti ti fi ti ti ti ti ti fi ti ti ti ti  15. Professional ac vity a. Commercial companies code - Persons quali ed to pursue the following professions may become partners in the partnership: advocate, pharmacist, architect, civil engineer, auditor, insurance broker, tax advisor, stock broker, investment advisor, accountant, physician, den st, veterinary doctor, notary, nurse, midwife, legal advisor, patent a orney, property advisor and sworn translator 16. Registra on of economic ac vity\ a. KRS (Na onal Court Register) b. CEIDG (Registry of individual economic ac vity) ENTERPRISE 1. Enterprise An enterprise is an organized set of tangible and intangible elements intended for conduc ng business ac vity. It includes in par cular: a. A Designa on dis nguishing the enterprise or its separated parts (the name of the enterpsie) b. The ownership of immovables or movables, including equipment, materials, goods and products, and other real rights to immovables or movables c. Rights under contracts for the tenancy and lease of immovables or movables and rights to use immovables or movables under other legal rela onships d. Receivables, rights a ached to securi es, and cash e. Concessions licences and permits f. Patents and other industrial property rights ti ti ti ti fi ti ti tt ti tt ti ti ti ti ti ti  g. Copyrights and neighbouring rights h. Secrets of the enterprise i. Books and documents related to business ac vity 2. Legal act concerning enterprise a. Civil code Art.55 - A legal act whose object is an enterprise covers all that which is part of the enterprise unless it follows otherwise from the substance of the legal act or from speci c regula ons. b. Art. 55 Civil code - The acquirer of an enterprise or an agricultural farm is liable jointly and severally with the transferor for the transferor’s obliga ons related to running the enterprise or agricultural farm unless, at the me of acquisi on, the acquirer was not aware of those obliga ons despite having used due care. The acquirer’s liability is limited to the value of the acquired enterpsie or farm as at the moment of acquisi on and according to the prices as at the me the creditor is sa s ed. This liability cannot be excluded or limited without the creditors’s consent. c. Art 75. Civil Code - The transfer or lease of an enterprise or the establishment of a usufruct thereon should be made in wri ng with notarized signatures - The transfer of an enterprise belonging to a person entered in a register should be entered in that register - The previous provision applies accordingly to the lease of an enterprise or the establishment of a usufruct theoreon - The above provisions do not prejudice the provisions on the form of legal acts concerning real estate. BUSINESS NAME 1. Business name a. Art 43 Civil Code - The business name of a natural person is his forename and surname. This does not preclude a pseudonym or expressions deno ng the enterpreneur’s objects, place of ac vity or any other freely chosen descrip ons being included in the business name. b. Art. 43 Civil Code - The business name of a legal person is its name ti fi ti ti ti ti ti ti ti ti fi ti ti ti ti  - The business name speci es the legal persons legal form, which may be abbreviated, and may indicate the objects and registered o ce of the legal person and any other freely chosen descrip ons - The business name of a legal persons may contain the surname or pseudonym of a natural person if its purpose is to indicate that natural person’s rela ons with the establishment or ac vity of the entrepreneur. The wri en consent of the natural person is required before his name or pseudonym can be placed in the business name, or, in the event of his death, the consent of his spouse and children. 2. Rules regarding the business name a. Art. 43 Civil code - The enterpreneur’s name should di er su ciently from the names of other entrepreneurs conduc ng ac vity on the same market - A business name cannot be misleading, par cularly regarding the iden ty of the entrepreneur, its objects, place of ac vity or supply sources b. Art 43 Civil Code - A change in business name must be entered in the register. Where a legal person is transformed, it may retain its former business name except for the expressions deno ng its legal form if the legal form has changed. This also applies to the transforma on of a partnership c. Art 43. Civil Code - A business name cannot be transferred - An entrepreneur may authorize another entrepreneur to use its business name if it is not misleading 3. Retaining the business name a. Art 43 Civil code - Where a partner/shareholder whose surname is included in the business name loses his membership, the partnership/company may retain the former partner’s/shareholder’s surname in its business name only with the wri en consent of the partner/shareholder, or, in the event of his death, with the consent of his spouse and children - Previous provision applies accordingly to the business ac vity of a natural person which is con nued by another natural person who is his legal successor - Any person who acquires an enterprise may con nue to run it under the same name. This person should, however, place an addi on to denote the business name or surname of the acquirer unless the par es agree otherwise b. Art 43 [ 7] Civil Code - A change in business name must be entered in the register. Where a legal person is transformed, it may retain its former business name except for the expression deno ng its legal form, if the legal form has changed. This also applies to the transforma on of a partnership ti ti ti ti ti ti ti fi ff tt tt ffi ti ti ffi ti ti ti ti ti ti ti ti Statutory representa on and power of a orney ti tt  1. Representa on a. Essence - Representa on enables one person to perform legal acts for another, crea ng obliga ons and rights for the principal. It facilitates par cipa on in legal ma ers without the principal’s direct involvement. b. Statutory representa on V power of a orney - Staturatory representa on is granted by law, such as parents represen ng minors or guardians managing a airs for incapacitated persons. - Power of a orney is a voluntary legal document where the principal authorizes someone to act on their behal, speci c or broad, revokable by principal. 2. Power of a orney a. Being limited in his capacity for legal acts does not a ect the validity of an act performed by him on the principal’s behalf b. Impermissible power of a orney - Power of a orney cannot authorize illegal ac ons, ac ons against public policy, or inherently personal (marriage, vo ng etc.) c. Power of a orney V organ of a legal person A power of a orney involves a principal voluntarily authorizing an agent, whereas an organ (e.g., a board of directors) is a permanent structure of a legal person with inherent authority by law. The organ's ac ons are those of the legal person itself. d. Unilateral legal act Gran ng a power of a orney is a unilateral legal act, meaning it only requires the principal’s decision and does not need acceptance by the agent to be e ec ve. The principal creates the PoA independently to empower the agent. 3. Types of power of a orney a. General power of a orney b. Power of a orney for a par cular type of acts c. Power of a orney for a par cular act 4. Form of the Power of A orney a. If a speci c form is required for a legal act to be valid, the power of a orney to perform that act should be given in the same form b. A general power of a orney should be made in wri ng, otherwise it will be invalid ti fi tt tt tt ti tt tt tt ti tt ti tt tt tt ff tt ti tt ti ti ti fi tt ti tt ti ti ti ti ff ti ff tt ti tt ti ti ti  5. Alleged A orney Art. 103 Civil code a. If a person execu ng a contract as an a orney-in-fact has no authoriza on or exceeds its cope, the validity of the contract depends on it being ra ed by the person on behalf of whom it was executed. b. The other party may set the person on behalf of whom the contract was executed an appropriate period in which to ra fy the contract; he is released when that period passes to no e ect c. In the absence of ra ca on, a person who executes a contract on another person’s behalf is obliged to return anything he has received from the other party in performance of the contract and to remedy any damage which the other party has su ered due to the fact that it executed a contract without knowing that there was no authoriza on or that its scope had been exceeded 6. Represen ng both par es Art 108 Civil code Ana otney-in-fact cannot be the other party to a legal act performed on the principa’s behalf unless the power of a orney provides otherwise or, owing to the naure of the legal act, any possibility of the principal’s interest being violated is excluded. This provision applies accordingly if the a orney-in-fact represents both par es 7. Several a orneys Art 106 KC An a orney-in-fact may appoint other a orneys-in-fact for the principal only if such authoriza on follows from the wording of the power of a orney , the law or the legal rela onship which is the basis for the power of a orney Art 107 KC If the principal appoints several a orneys-in-fact with the same scope of authoriza on , each of them may act individually unless the PoA provides otherwise. This provision applies accordingly to A orneys-In-Fact whom the a orney-in-fact himself appoints for the principal 8. Revoca on of the power of a orney Art 101 Civil Code a. PoA may be revoked at any me unless the principal waived his right to revoke the PoA for reasons jus ed by the substance of the legal rela onship which is the basis for PoA b. The authoriza on expires upon the principal’s or a orney’s death unless the PoA provides otherwise for reasons jus ed by the substance of the legal rela onship which is the basis for PoA Art 102 Civil Code c. A er the authoriza on expires, the a orney-in-fact is obliged to return the power of a orney document to the principal. He may demand a cer ed copy of that document; expiry of the authoriza on should be indicated on that copy. 9. Presump on of the power of a orney Art 97. Civil Code ti ft tt fi tt tt ti ti tt tt tt fi ti ti ti tt ti ti ti ti ti ti fi ti ti