A building covered by the Warsaw Decree – attempt to revise the post-war legal status of buildings in Warsaw


When assessing the post-war legal status of buildings erected on land subject to the Warsaw Decree, there is currently greater focus on the circumstances surrounding wartime destruction of buildings and the fact that decree-related proceedings are ongoing. This is intended to take away or restrict ownership title to “budynki piątkowe” – buildings fulfilling requirements under Art. 5 of the Warsaw (Bierut) Decree. Meanwhile, the structure of a “decree building” is a refined legal concept that needs to be viewed in the context of laws and case law in effect at the time.

The activities of the Warsaw Property Restitution Committee, and case law as well, reflect a current tendency to revisit past views on classification of buildings in Warsaw as decree buildings due to the extent of damage done to them in wartime, and also the nature of ownership title to buildings of this type, and whether this title can be exercised. Interestingly, the structures rooted in the laws in effect at the time the Warsaw Decree was passed are disregarded in this process. This has resulted in a simplified and at times selective presentation of facts to undermine the existence or scope of ownership title, separate from the land, to a decree building.

Under Art. 1 of the Warsaw Decree, as of the day on which it came into effect, which was 21 November 1945, only land plots in Warsaw became the property of the then-existing Warsaw municipality. Under Art. 5 of the Warsaw Decree, buildings and other items located on the transferred plots continued to be the property of the owners at the time, except where the special provisions stated otherwise. This meant that property being buildings belonged to the owners, but were properties separate from the land. In this context, the special provisions are primarily Art. 6 and Art. 8 of the Warsaw Decree. Art. 6 states that separate ownership title to a building does not apply in the case of ruined buildings designated for demolition. Art. 8 states that buildings become public property if the owners at the time were denied temporary ownership title (now perpetual usufruct) to the transferred land. Thus the owners at the time lost title to a building both when no application for temporary ownership title to land described in Art. 7 of the Warsaw Decree was filed or when the application was not filed correctly, and in cases in which an application of that kind was denied.

A building reconstructed after the war may still belong to the owners at the time

The issue of legal classification of buildings reconstructed from wartime ruins is discussed in an article on our website here (in Polish). At the moment, the rulings given by the Warsaw Property Restitution Committee and other administrative authorities have strongly underlined the extent of wartime damage to buildings in Warsaw. It has been emphasised that a building that was essentially ruined during the war and subsequently reconstructed could not be a decree building in the meaning of Art. 5 of the Warsaw Decree, and thus a building remaining the property of the owners at the time. Meanwhile, even a building reconstructed from scratch subsequent to 1945 could be property separate from the land, and thus be a decree building in the meaning of Art. 5 of the Warsaw Decree. This is because a building was not determined to be a decree building according to the extent of repairs or even the extent of reconstruction, because the main and sole determining factor for classification of the remains of a building (including even the foundations alone) as a decree building was classification as to the potential for repair or necessity of demolition by the building construction authorities under the Decree of 26 October 1945 on Demolition and Repair of Buildings Destroyed and Damaged as a Result of War. The functional and syntactical link between the Warsaw Decree and the Demolition Decree clearly shows that the Demolition Decree should be referred to in that situation. The main issue is that the legal status of remains on land within Warsaw was regulated in Art. 5 and Art. 6 of the Warsaw Decree, addressing the question of ruined buildings and the need to demolish them, which in turn is dealt with in more detail in the Demolition Decree. The Demolition Decree was issued on the same date as the Warsaw Decree, and, like the Warsaw Decree, was intended to make post-war reconstruction of towns and cities proceed more efficiently.

Under Art. 1(3) of the Demolition Decree, a ruined building was a building that the building construction authorities found to be in a condition, due to the effects of war, requiring demolition. Under Art. 1(4) of the Demolition Decree, meanwhile, a damaged building was a building that as a result of war was completely uninhabitable or only partly habitable, but which the building construction authorities ruled was capable of being restored to a condition suitable for use, meaning that under other provisions in the Demolition Decree a damaged building could be repaired. The building construction authorities had the exclusive power to perform the legal classification described above with respect to post-war remains on land in Warsaw. Importantly, in the meaning of the Demolition Decree, a damaged building could even be a building that was completely inhabitable if the building construction authorities found that it could be restored to a condition suitable for use.

Legal classification of a building by the building construction authorities under the Demolition Decree had implications for ownership title to remains standing on land in Warsaw. Under Art. 6(2) of the Warsaw Decree, ruined buildings due to be demolished under a building construction authority ruling would pass to the Warsaw Municipality once the time limit specified according to the procedure provided for in section 1 of that article expired to no avail. Therefore, under Art. 5 and Art. 6(1) and 6(2), all other buildings, a contrario the Warsaw Decree, remained the property of the owners at the time. As a result, damaged buildings, in the meaning of the Demolition Decree, which due to the distinction made in Art. 6(2) of the Warsaw Decree were not intended to be demolished but were to be repaired, were classed as a decree building under Art. 5 of the Warsaw Decree.

On the other hand, if a damaged building of that kind was not ruled a decree building in the meaning of Art. 5 of the Warsaw Decree, that building would not in any case become the property of the Warsaw Municipality, and would continue to be subject to property title separate from the land. In other words, even if the legal definition of a damaged building due to be repaired under Art. 1(4) of the Demolition Decree was not combined with the term “decree building” under Art. 5 of the Warsaw Decree, in any case a building being ruled by the building construction authority as suitable for repair (and not demolition as described in Art. 6(2) of the Warsaw Decree) due to the events envisaged in Art. 6(1) and Art. 8 of the Warsaw Decree not occurring, leading to transfer of ownership title to remains on the land, would determine unequivocally that a damaged building due to be repaired was property separate from the land and would not become public property.

In addition, both in case law and legal literature, there is clear criticism of application – when performing legal classification of buildings under the Warsaw Decree – of the Act of 3 July 1947 on Support for Building Construction. In this act, to define new buildings and structures, the extent of damage to a building was assessed as a percentage. Interpretation in this way of categories of buildings listed in the Warsaw Decree is criticised due to impossibility of intervention in property right matters using building construction laws, there being no grounds, under standard legal norms, for further examination from an interpretational point of view, of the scope of nationalisation laws, and the impossibility of applying similar principles, as appropriate, in administrative law, when laws were interpreted in a manner unfavourable to the individual or other persons. For these reasons, the option of use of the Act on Support for Building Construction when reformulating the meaning of terms used to describe particular types of buildings in the Warsaw Decree is rejected.

Ownership title to a decree building can be exercised until the time an application under the decree is reviewed

An example of this tendency in case law can be seen in efforts to limit decree building ownership title. This can be seen in particular in a case that has been pursued for 70 years under the procedure provided for in Art. 7 of the Warsaw Decree, to obtain perpetual usufruct to transferred land. For this entire period, the owners at the time and their heirs have been prevented from exercising their ownership title, and the building would not be released to them until the decree proceedings were completed. In addition, there are now attempts to have ownership title to a decree building classified as an appurtenance to future perpetual usufruct of land and formulate an argument that this right is temporary in nature.

The first of the processes mentioned renders ownership title to a decree building existing until the time of final review of a decree application equal in nature to ownership title to a separate building property existing subsequent to final review of a decree application. This is because the nature of this right can reasonably be compared to perpetual usufruct appurtenance under Art. 235 § 2 of the Civil Code, once a decree application has been granted and a decree decision has been issued. However, until a decree application has been finally reviewed, separate property in the form of a building cannot be an appurtenance to any other land title. This is because that land title has not yet been duly confirmed to exist. Moreover, up until the moment a decree application is finally reviewed, a claim for land title under Art. 7 of the Warsaw Decree is only a component of ownership title to property being a building under Art. 5 of the Warsaw Decree. Thus, as a claim for land title is solely a component, in the meaning of Art. 50 of the Civil Code, of separate property being a building under Art. 5 of the Warsaw Decree, a component of real estate cannot determine the legal existence and nature of ownership title to that separate property. For this reason, the legal relationship between a right to a property being a building and land title can change dynamically and is modified at the moment of the final review of a decree application. Until the time a decree application is reviewed, that claim to land is related to property in the form of building, while once that application is reviewed, the title to the building becomes a right related to perpetual usufruct that has already been established. If therefore an overall principle is universally accepted that a component of property is treated the same way under the law as that property, then attempts cannot be made to interpret Art. 5 and Art. 8 of the Warsaw Decree in a way that renders ownership title to property being a building, existing separately from the land title, a right dependent upon a claim for land title to be established, being solely a component of property being a building.

The other process concerns demonstration of ownership title to decree buildings as a temporary right, which is supposedly grounds for staying execution of that right until the decree application is reviewed, and making the nature of that right dependent upon the final adjudication reached in the decree proceedings. The structure of a decree building introduced in the decree is in fact a temporary derogation from the principle that erected structures are connected to the land. Nevertheless, ownership title by itself to a building is not temporary title, because it does not absolutely have to expire after a certain time. This only happens when a decree application is denied. Moreover, the existence of ownership title to a decree building is not directly determined by the range of prerequisites envisaged for establishing land title. Existence of these prerequisites and establishing land title does not however affect in any way the title to the building, apart from forming a different legal relationship with respect to the land title. Meanwhile, the building does not become public property, and legal dependence does not occur, until the prerequisites are found not to exist. This is an inadequate link, however, for an objective legal and material dependence to be found to exist between the legal existence of title to a decree building and the grounds being fulfilled as required under Art. 7(2) of the Warsaw Decree.

Therefore, there are no legitimate legal grounds for the suggested temporary nature of title to a building until a decree application is reviewed. By the same token, there are no legitimate legal grounds for a claim to land to take precedence. The mere possibility, by itself, of an unfavourable outcome of review of a decree application, which would lead to loss of ownership title to a building, does not explain in any way the existence of that dependence between title to the building and title to the land. This is because a decree application could also be reviewed favourably. Land title could be considered to take precedence over building title if, at the time the Warsaw Decree took effect, the building was also transferred, and title to the building was not established until title to the land was granted. Nevertheless, the Warsaw Decree provided for separate title to a building from the moment the Decree took effect. Continuity of that title was conditional upon filing a decree application. The Warsaw Decree does not in any way restrict exercise of a building owner’s ownership title. Owners of decree buildings are able to exercise that title in full, by exercising ownership title par excellence. The best illustration of this is the option of creating separate building registers and the option of filing debt recovery claims.

Summary

Contemporary attempts at reformulating the concept of a decree building, by analysing, out of the post-war legal context and in a simplified manner, the historical background of a building and decree proceedings, are unacceptable. It is true that the fact that the owners at the time or their heirs can claim back a building that was essentially rebuilt after the war using public funds might cause public controversy. The possibility of a building passing to them even while decree proceedings are ongoing, and it becoming the property of the Warsaw Municipality once the proceedings are concluded, might be equally controversial. On the other hand, these two options are a result of the complex legal structure of a decree building. In addition, the legal system provides instruments whereby public entities can recover from the owners at the time or their legal successors the costs of post-war renovation, and a building can also pass to them once decree proceedings are concluded and the ruling is unfavourable.

Dr Radosław Wiśniewski, Real Estate, Reprivatisation and Private Client practices, Wardyński & Partners