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Civil law

1. I am Polish and I live abroad (in the USA).However, I have property in Poland which needs to be managed.Can I appoint a proxy to act on my behalf in Poland?Can I do that via the Internet?

The general rule of the Polish civil law is to be able to act by proxy.Power of attorney may be granted to act in a specific matter (e.g. sale/purchase of a car), to represent a person in situations of a given type (e.g. to represent a person before national authorities) or it may be the so-called general power of attorney - not indicating any specific activities that a proxy may be entitled to perform on our behalf. However, we should remember that a general power of attorney entitles its holder only to perform the so-called ordinary management activities and it shall be void unless drawn up in writing. Thus, a person who has been granted the power of attorney to manage our property in Poland will not be entitled to sell any assets or to bind this property to a third party.

As for the power of attorney granted via the Internet, in principle a power of attorney does not have to be made in writing, so theoretically it may be granted by e-mail.In practice, however, contractors may not be willing to accept such a power of attorney and national authorities, before which a proxy is to represent us, will not accept such a power of attorney.


2. I live with my family in the USA, where my aunt (my father's sister) also lives. She wishes to give me a parcel of land in Poland.In what form should such a gift be made?Is it possible to do it in the USA without the necessity of going to Poland?

Making a gift of land is treated under civil law as the sale of real estate, which requires a notarial deed or otherwise shall be null and void.The transfer of the ownership of the property is not possible without a notarial deed.  

In accordance with the new International Private Law Act, binding in Poland since May 2011, an act intended to have legal effect shall satisfy formal requirements of the Polish law, which means that to sell a property situated in Poland a notarial deed signed before a notary is necessary. Transferring the ownership abroad, even in the form of a notarial deed signed before an American notary, will be ineffective (and in fact invalid) and will have no legal effects.


3. I live and work in New York, but I own an apartment in Poland which I would like to sell due to my investment plans.With the help of my cousin I've managed to find a buyer in Poland.Can I grant the power of attorney to my cousin, who lives in Poland, in the United States or do I have to come to Warsaw in order to sell my flat?  

Cases such as yours are governed by the new International Private Law Act, binding in Poland since May 2011, which clearly provides that the power of attorney to sell or to buy real estate may be granted before a notary abroad. Thus, you can grant, before an American notary, a power of attorney to a trustworthy person in Poland (e.g. to your cousin) and then this person will sell the apartment, on your behalf, to a Polish buyer.
In order to be used by your cousin, the power of attorney requires an apostille issued by a state secretary in every state. An apostille certifies that a given document has been signed by persons whose data is provided in the document.


4. At the end of the 50s I left Poland and I moved to Chicago.In Poland I left an agricultural holding - a house with a parcel of land, a field and a forest.Until today I didn't care about what has happened to the property that I left in Poland, but now I would like to get it back. Do I have any chances for that?What should I do and who should I address to determine what has happened to my property? 

Due to a considerable passage of time and to modifications introduced after World War II to regulations concerning real property and the nationalization thereof, it is difficult to provide a precise answer to your question.
However, you should begin with determining the legal status of your property by addressing a competent municipality or district office.Obtaining an extract from the land registry would allow you to determine the current owner of the property and the number of the land and mortgage register kept for that property.
If the State Treasury remains the owner of the property, this property may be restored to you if you prove that there were no bases for expropriation or that such a property has not been used in accordance with the purpose of the expropriation.
However, if the property has been sold to a third party, you may only try to obtain a compensation from the State Treasury.In both cases, however, it is necessary to effectively annul the expropriation decision.


5. I live abroad, but I own, together with my daughter, an immovable property, where in the 70s I built a house with my husband. This immovable property additionally includes a garden and a high hedge.Recently, it turned out that a part of the immovable property occupied by our family since the 70s belongs to the commune and the right of perpetual usufruct has been granted to a housing cooperative that has built a housing estate nearby. My daughter has recently suggested that we could try to acquire a part of the property, which we have occupied for many years, by usucaption.Is it possible?Would the fact that I live abroad be an obstacle?I would like to emphasize that I frequently come to Poland, I help my daughter financially in the maintenance of the property and I pay real estate tax to the commune.  

You can try to acquire the property by usucaption.In accordance with Article172 of the Civil Code, the possessor of an immovable property who is not its owner shall acquire ownership if he possesses that immovable property uninterruptedly for twenty years as an autonomous possessor, unless he had acquired possession in bad faith. However, even if the property has been acquired in bad faith, i.e. when the possessor knows that he is not the owner or when he can easily determine that he doesn't have any legal title in the form of an ownership, he shall acquire ownership of the property after 30 years.
In such a case, it is necessary to prove that for the last 30 years we have been in control and in possession of a given property "as its owner", i.e. that neighbours have treated us as owners, we have paid real estate tax and an insurance, we have fenced the property and maintained it, we have opposed to the disturbance of possession if somebody entered its territory. To prove it we can provide documents (confirming that we have paid real estate tax and insurance) and testimonies of witnesses.  
If we are able to prove that for the last 30 years we have possessed a given immovable property, in order to confirm usucaption we need to file a motion to a court having territorial jurisdiction over the place in which the property is located and the court will issue a decision confirming usucaption.  
The fact that you live abroad should not be an obstacle to usucaption.Possessing does not only refer to the fact of physically using a given immovable property, but also to other indications of being in control and in possession of the property as its owner, e.g. financing the property, paying real estate tax and insurance, etc.


6. I divorced a few years ago.I live in California, while my ex-wife and children live in Poland.My ex-wife has filed a motion with a Polish court for division of the property that is quite significant.For some reasons, I am not willing to divide the property at the moment and I don't want to come to Poland to participate in the court proceedings. My ex-wife doesn't know my current address.Can I just pretend that I don't know anything about my wife's motion and not participate in the proceedings?Will this allow me to block court proceedings?  

Your tactic is quite risky.  If the address of one of the parties to the proceedings, since by operation of law you are a party to the proceedings for the division of property, is unknown, it does not prevent the proceedings from going on.It's possible to appoint a guardian ad litem for the persons of unknown domicile so your wife may file a motion to appoint a guardian ad litem for you and he will be charged with finding and informing you about the case and if no contact is possible - he will represent your interests in the proceedings.
In practice, however, guardians ad litem are not very active in the court proceedings and they limit their actions to just receiving letters addressed to the party they represent.
Thus, if you don't participate in the proceedings and don't provide any evidence, your wife may divide your property as she wishes, while your interest may not be protected as it should be. Your passive attitude in the case may be especially painful if a part of the property provided as the property to be divided comes from your separate property (e.g. from donations you've received or from what you have inherited during your marriage).  
Therefore, if you know about the proceedings instituted by the court after your ex-wife has filed a motion for the division of the property, you should appoint an attorney in Poland (a legal advisor or a counsel) who will act on your behalf during the proceedings.  


7. Three months ago, I learnt that my father, who lived in Poland his whole life, had died.I have a brother and a sister who told me that my father, apart from having an immovable property with a beautiful garden, forest and a small pond, had also huge debts dating back to the times when he had his own company. What should I do?My father was a widower and he didn't leave any will.  

According to the described situation, after your father's death you become a coheir.Therefore, if you don't take any steps, then, by operation of law, within 6 months following your father's death you will receive 1/3 of the inheritance.It may be risky to the extent that in accordance with the provisionsof the Civil Code, receiving the inheritance results in inheriting both assets (immovable property, money, jewellery) and debts relating to the inheritance.
You should firstly determine the amount of your father's debts.If they significantly exceed the value of the inheritance, you may reject the inheritance by making a declaration before the court or before the notary (a possibility which has been introduced only recently).In that case you are treated as if you were a person who died before the opening of the succession.
If, however, your father's debts were small and if they do not exceed the value of the property left by your father, you may accept the inheritance, sell the property and pay debts, leaving the surplus for yourself. Obviously, the amount obtained after the sale (if your siblings accept the inheritance) will be divided into 3 parts, one part for each child.
If the state of your father's property is not clear, you may also accept the inheritance with the so-called benefit of inventory.In accordance with Article1031 § 2 of the Civil Code, in the case of acceptance of the inheritance with the benefit of inventory, an heir shall be liable for the inherited debts only up to the value of the assets of the estate as established in the inventory.
Please remember that you don't have much time to take the decision.In accordance with Article1015 § 1 of the Civil Code, the declaration of acceptance or rejection of the inheritance may be filed within six months from the day on which the heir learned about the title under which he was appointed to inherit.The lack of a declaration by the heir within the above time limit shall be tantamount to the simple acceptance of the inheritance with all the consequences resulting thereof.


8. My wealthy aunt has left her last will indicating therein that her heirs (my two cousins) are to give me two precious brooches, each worth approximatelyPLN 5000.My cousins have stated that since I am not an heir I do not have the right to inherit anything and that this part of the will is invalid.Are they right?My cousins inherited immovable property and jewellery, as my aunt had no debts.What should I do?Do I have to come to Poland or may I appoint an attorney in Poland?  

The answer to your question depends on when and in what form your aunt wrote her last will.If the will was made in writing and was prepared before 2011, then, in accordance with the provisions of the Civil Code (Article968 § 1) the testator may, by his testamentary disposition, impose upon a statutory or testamentary heir the obligation to effect a definite material performance for the benefit of a specified person (ordinary legacy).You don't need to be an heir, quite the contrary.A legatee, i.e. you, has a claim against the heir for the release of the object of legacy (in your case - brooches). You should initiate judicial proceedings for transfer of the ownership of objects included in the estate and left to you by will.
If these objects are specified as to their identity, your cousins will be held liable if the objects are sold or damaged.It is also worth mentioning that in 2011 the so-called "vindication legacy" was introduced in the Polish succession law.It means that if the will has been drawn up in the form of a notarial deed, the testator could have indicated that upon opening of the inheritance the ownership of brooches is transferred to you.However, it has to be done in the form of a notarial deed and exclusively with regard to objects specified as to their identity (i.e. 2 precious brooches).In the case of a vindication legacy, you should initiate proceedings against your cousins for the release of objects (i.e. 2 brooches), presenting a final decision confirming the succession or a registered deed of succession certification.In both cases (ordinary legacy and vindication legacy) you may appoint an attorney in Poland and, in principle, you won't have to be present at the proceedings.You will be represented by your attorney.You may appoint a counsel or a legal advisor to represent your interests.


9. Recently, I have learnt about the death of my aunt, who used to treat me as her daughter and promised that I would inherit her property.However, when I tried to talk to her children, who my aunt wanted to disinherit, I was told that no will had been left and that I didn't have the right to inherit anything.I know that my aunt always cared about all the formalities and she told me that she had a trustworthy notary in the city where she lived.Is it possible to check whether my aunt has left the will and whether I have inherited anything?

The behaviour of your aunt's children may indeed suggest that your aunt has made some succession decisions and might have left you a part of her property by will.
In order to check whether your aunt has left any will you should go to the civil registrar's office of your aunt's last domicile and ask for a copy of a death certificate and then try to visit notaries having their offices in the city where your aunt lived, asking them whether your aunt has prepared her last will in the form of a notarial deed.
However, if such a will in the form of a notarial deed exists, then a notary, after having been informed of your aunt's death, should take steps in order to inform the persons concerned and to read the will.

Answers have been prepared by: Michał Olszyński

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