In the first part of this article we have presented the comprehensible overview of the current state of restitution of property in Warsaw. Here we develop the insightful analysis of the new regulation concerning that matter, which has been in force for a month and introduced profound changes in property restitution proceedings.
The seizure of property in Warsaw in 1945 was regulated by the 1945 Warsaw Land Decree (commonly known as the Bierut Decree). State organs, breaking the law, were not granting the former owners perpetual usufruct (temporary ownership) rights to estates or compensation as envisaged by the Decree. After the fall of communism in Poland, there was no regulation solving that matter until recently. Recently, the Polish Parliament introduced a new set of rules to solve the situation once and for all.
The law of 25 June 2015 entered into force on 17 September 2016. Since then, it will apply to all the “launched and not completed” proceedings in Warsaw only. It introduces amendments to different laws and codes.
The most important changes are the following:
- A former owner of an estate taken under the 1945 Warsaw Land Decree who lost the right to compensation provided by that Decree may have his (or her) former propertyreturned if he (or she) or his (or her) legal successor applied for a perpetual usufruct right to the estate prior 31 December 1988.
- An organ may deny an application for a perpetual usufruct right to an estate taken under the 1945 Warsaw Land Decree not only due to reasons established in the Decree (contradiction with zoning plan), but also due to the following circumstances:
- The estate is used or intended to be used for a public purpose (defined widely in Article 6 of the Law on Real Estate Management – includes public roads, airports, infrastructure, public offices, schools, monuments etc.);
- The estate has been sold or given into a perpetual usufruct to a third party;
- A building, the value of which “significantly exceeds the value of the property taken for that purpose”, was erected by the State Treasury or the community on the estate after the 1945 Warsaw Land Decree entered into force;
- The building taken under the 1945 Warsaw Land Decree, damaged within the years 1939-45 more than in 66% was rebuilt or repaired with use of public funds;
- It is impossible to divide the estate in accordance with law and “spatial order” if only a part of it is subject to a claim under the 1945 Warsaw Land Decree.
- An organ may discontinue proceedings regarding applications filed under the 1945 Warsaw Land decree if it is impossible to establish the parties of the case or their addresses while the application is the only document in the case file. To do so, it has to make a public announcement that it is looking for the former owner of the estate or his (or her) legal successors by the press and Internet, including:
- the name of the owner,
- the address of the estate,
- the information of the application filed,
- the call to join the proceedings within 6 months from the announcement.
If within that time no one approach the organ or, if approached, fail to prove his (or her) rights within the following 3 months or to indicate his (or her) address, the proceedings will be discontinued. In other words, the successors will have only 6 months to take part in the proceedings – otherwise, they permanently lose their right to restitution as the estate will become a public property. Moreover, no compensation would be possible.
- The State Treasury and the Warsaw municipality enjoy pre-emptive rights to rights and claims under the 1945 Warsaw Land Decree being sold. The pre-emptive rights will not apply to the transactions reported in the proceedings before the Law enters into force.
The window of opportunity for pursuing a restitution claim in Warsaw will not last forever. It expires on 17 March 2017. If the application is not be made until then, the chances for recovering the property will be significantly reduced or even may expire without any compensation.
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