Effectiveness of foreign notarial deeds in Polish reprivatisation cases
In reprivatisation cases, the claimants’ legal succession from the prior owners is sometimes determined from foreign notarial deeds. Their effectiveness in Poland depends on certain factors.
The winds of war swept many former owners of real estate in Poland around the world. For various reasons, some of these individuals could not return to Poland after the end of the Second World War or chose not to return. But faced with the post-war socioeconomic changes in Poland, they attempted to secure the interests of themselves and their family members. To this end, the former owners of property in Poland made various acts before foreign notaries in the hope that to some degree it could protect their ownership against the effects of the agricultural reform, nationalisation of industry, or the decree seizing Warsaw lands. Deeds of gift, gifts of inheritance, and sales of real estate located in Poland were made before foreign notaries.
Such foreign deeds made shortly after the war are examined today in reprivatisation cases, in review proceedings followed by judicial proceedings seeking return of the property or compensation, in order to verify the proper legal succession from the former owners of the property. In such cases, the effectiveness of these foreign deeds determines whether the claimants have standing to appear as parties to proceedings in Poland seeking a finding of the invalidity of expropriation or seeking return of the property or compensation in administrative and judicial proceedings. For this reason, in reprivatisation cases where the chain of succession partly depends on foreign notarial deeds, it must be carefully examined whether the deed can exert legal effects in Poland.
Form of legal acts under Private International Law of 1926
Legal acts made before foreign notaries are regarded in Poland as acts with a foreign element. Conflict of laws rules determine whether the effectiveness of such acts in the territory of Poland should be evaluated on the basis of Polish law or the law of the country where the legal act was made.
The Act on the Law Governing Private International Relations of 2 August 1923 (Journal of Laws Dz.U. 1926 No. 101 item 581) remained in force through 30 June 1966. Under Art. 5 of that act, the parties to a legal act could make such act in the form provided for in the law applicable to such act (that is, in compliance with Polish law) or comply with the form provided for that act by the law of the place where the act was made (that is, in compliance with the regulations of the jurisdiction where the act was made).
But this choice was limited by Art. 6(3) of the Private International Law of 1926, which provided that acquisition, amendment or extinguishment of property rights to real estate located in Poland is subject with respect to form and other conditions of validity to the law in force in Poland. Therefore, the pre-war legislature required that the form of all acts concerning rights to real estate in Poland be evaluated exclusively on the basis of Polish law.
Until 17 May 1964, when the property law provisions of the Civil Code came into force, the existing Property Law—Decree of 11 October 1946 (Journal of Laws Dz.U. 1946 No. 57 item 319) remained in force. Art. 46 of that decree insisted on the form of a notarial deed for transfer of ownership of real estate (a requirement currently set forth in Civil Code Art. 158). Thus the form of legal acts affecting rights to real estate in Poland, wherever the acts were made, always must be examined on the basis of Polish regulations, and therefore had to be made in the form of a notarial deed as provided for in Art. 46 of the Property Law of 1946.
Meeting the same standards
Even though expropriation under agricultural reform, nationalisation of industry or the Warsaw Decree occurred by operation of law, the former owners of real estate in Poland, faced with the lawlessness of the seizure of their property and to protect their own interests, made acts before foreign notaries concerning the rights to their former real estate. Doubts are often raised about the effectiveness of such deeds in administrative and judicial proceedings in reprivatisation cases. The question is whether such deeds may be regarded as equivalent to Polish notarial deeds, and thus whether they satisfy the Polish regulations requiring the form of a notarial deed.
As commentators have pointed out (on the basis of the Private International Law of 2011, which is modelled on the 1926 law), to answer this question the foreign deed should be compared under the principle of functional equivalence with a deed that could have been prepared by a Polish notary. The purposes and procedural guarantees of such deeds should be compared, and the status of the notary preparing the foreign deed should also be considered, to determine whether the deed prepared by the foreign notary meets the general requirements for Polish notarial deeds.
This analysis will not be difficult if the deed was prepared by a notary from one of the other countries in Continental Europe. In the Continental legal culture, there are similar procedural and professional guarantees affecting notaries and the deeds they prepare. Foreign notarial deeds from farther removed countries will be more difficult to assess.
If the comparison is affirmative, it may be concluded that the foreign notarial deed is a notarial deed within the meaning of Polish regulations, and the legal act by the former owner concerning rights to the real estate was made in compliance with the form required by Art. 46 of the former Property Law. As the Supreme Court of Poland held in a case issued when the Private International Law of 1926 was in force, “Notarial deeds prepared abroad, equivalent to notarial deeds prepared in Poland, legalised in the proper form, are ascribed the full significance of a notarial deed required by a Polish statute” (Supreme Court ruling of 13 March 1953, Case No. C 2953/52, Lexis No. 323444; see also Supreme Court order of 8 January 2004, Case No. I CK 39/03, Lex No. 126829).
Specific situation—gift of an inheritance
In the case of certain foreign notarial deeds relied on in reprivatisation cases, however, there is a possibility of evaluating the compliance with the form required for the legal act under Art. 5 of the Private International Law of 1926 without the need to apply the restrictions under Art. 6(3) of the same law. This has to do with a gift of an inheritance from the former owners of real estate in Poland prepared in the form of a notarial deed. In the post-war years, such gifts were most often given to more distant relatives or unrelated persons by the last surviving members of the family which owned the property in Poland, in an attempt to secure the property against unlawful seizure by the state.
As mentioned, expropriation occurred by operation of law, and therefore the inheritance passed on as a gift could no longer include the rights to the real estate in Poland. Consequently, such gifts—because they did not involve interests in real estate—were not subject to the limitation in the choice of law with respect to the form of the legal act. Hence such a gift of an inheritance could be made either in the form provided by Polish law or in the form provided by the law where the gift was made.
Under Art. 358 §1 of the Obligations Code in force through 31 December 1964 (Journal of Laws Dz.U. 1933 No. 82 item 598), in connection with Art. 167 §2 of the former Inheritance Law—Decree of 8 October 1946 (Journal of Laws Dz.U. 1946 No. 60 item 328, as amended), a gift of an inheritance had to be made in the form of a notarial deed. However, because the limitation under Art. 6(3) of the Private International Law of 1926 did not apply in these circumstances, the parties to the gift could also select the law of the place where the legal act was made as the law governing the form of the gift. A gift could therefore be made in the form of a notarial deed as provided for by the regulations of the jurisdiction where the gift was made.
The selection of the rules which should be relied on in the course of the proceedings depends on the chances of passing the test mentioned above for the equivalence of a foreign notarial deed. If it can easily be shown that the foreign notarial deed meets the general conditions required of Polish notarial deeds, then under the position taken by the Supreme Court it may found that the gift was made in the form of a notarial deed provided for by Polish law. However, if this equivalence test cannot be successfully made, it should be demonstrated that the gift was made in the form of a notarial deed provided for such act under the law of the place where the deed was made.
It should be added by the way that a person who was the recipient of a gift of an inheritance under the principle of general succession becomes a fully entitled heir of the former owner of real estate located in Poland, who—like other heirs of former owners—cannot be denied standing as a party in review proceedings and judicial proceedings, even though at the time the gift was made the inheritance did not include interests in the real estate that is now the subject of the reprivatisation case. In other words, such an heir has standing to assert claims in reprivatisation proceedings.
Summary
The restrictive provisions of the Private International Law of 1926 concerning the form of legal acts in transactions involving real estate in Poland have not prevented reliance on foreign notarial deeds in reprivatisation proceedings to demonstrate the standing of the legal successors of the former owners. Moreover, such foreign deeds allow the legal successors to prove that they have standing to assert claims in various types of reprivatisation matters.
Radosław Wiśniewski, Reprivatisation Practice, Wardyński & Partners
