Land Registr y system in Poland : aims, general rules and organization

1. Land Registry system in Poland : aims, general rulesand organization Dr Marta Rękawek-Pachwicewicz POLAND

2. PolishAssociation of Registrars in Cracow (Poland) Polish Association of Registrars (PAR) in Cracow is non-profit organisation, which associates registrars and registrar’s apprentices employed in Polish common and administrative courts (complete and actual information concerning current PAR activities is available at website:www.referendarz.pl)

3. PAR mainpurpose The main purpose of Polish Association of Registrars (PAR) is to promote science and education as well as supporting and promoting scientifical and educational initiatives referring to Polish and European law. Moreover PAR has been appointed to take up actions aimed at supporting the economic development as well as actions supporting the European integration

4. Registrar in Poland According to Polish law registrar is highly ranked public official empowered by the State to supply legal protection to citizens together with judges. Registrars are placed within the judicial system and work in common and administrative courts and their position is legally regulated and protected. Polish registrars are highly qualified, as they need to have a diploma in law (law master degree) and they must pass special legal exams (judges exam, registrar exam, advocate exam, notarial exam)

5. Registrars’ taks in Poland According to Polish law registrarsareempowered to recognise law cases in the followingareas: • land registry law (electronic land register – New Electronic Land Book) • business registry law (commercialregisters – NationalJudicial Register and lien register) • small civil and business law cases (writ) • executiveactions (clause) • civilrights to legalsupport and courtexpensesexclusion

6. The Land Register System (LRS) in Poland Section I. Presentation.

7. LRS in Poland: the title system In Poland we do haveRegister of titles, comingout of the German and Austraintradition. According to definitionadopted in ELRA document: EUROPEAN PROPERTY LAW RIGHTS AND WRONGSALDE GROUP SEMINAR : „In the title registration system the registry deploys the greatest protection and effects to the buyer´s right (positive effect), which include: a. The preference of a registered right over an unregistered right, i.e., enforceability over anything not registered. b. The presumption that the registered holder of the right is in possession of that right and can call upon all action stemming from possession for the protection of that right, including protection against adverse possession. c. Legal Entitlement. A person whose right is registered is presumed to be the owner and is empowered to ispose of the right. d. Protection of the right for any purchaser in good faith. Any person who buys a right from a person listed in the registry as the right’s owner will be upheld as the true buyer, even if the conveyor’s right is cancelled, provided the causes of cancellation are not entered in the registry as well”. PolishAct on Land Books and Mortgage of 1982 containsallabovementionedelements.

8. The main purpose of Polish land register is to supply legal protection of free movement of real estate through disclosure in the public register of established legal status of real estate. The purpose

9. Polish Land Register is composed of about 20 000 000 individual units called the Land Books. The composition

10. Each Polish Land Book comprises of four sections: First section contains entries regarding the mark of the real estate with ownership rights. Second section contains entries regarding ownership and accessory rights (perpetual usufruct). Third section contains entries regarding limited rights in rem, restrictions in real estate disposal, execution, other rights and claims. Fourth sections contains mortgage entries. The structure

11. New Electronic Land Book Accessible at Polish Ministry of Justice official website: http://bip.ms.gov.pl/pl/rejestry-i-ewidencje/nowa-ksiega-wieczysta/ The show starts (for free): The example

19. The Land Register in Poland is based on the 7 following rules (so called „seven golden rules”): 1.The rule of judiciary, what means that land register being governed by the judiciary. 2.The rule of generality, what means that land register entries should be established for all real estates. The 7 rules (r. No 1 & 2)

20. 3.The rule of registration, what means that the court makes an entry to the land register in opposition to simple acknowledgment of documents. 4. The rule of declarative nature of entry, what means that Polish law did not adopt a system, according to which the very fact of entry being made, results in creation of subjective right (lack of consitutive effect), with some exceptions. The 7 rules (r. No 3 & 4)

21. 5.The rule of publicity and openness (formal), according to which everyone has a right to browse the land register in the presence of court employee. 6. The presumption of land register credibility (rule of material openness), according to the legal act we need to presume that the legal entry to the land register is made according to the actual legal status. The 7 rules (r. No 5 & 6)

22. 7.The guarantee of public trust (legal certainity) in land register what means that in case of discrepancy between the legal status disclosed in the land register and actual legal status, the entry in the land register speaks in favor of the person, who, through the legal action is the person disclosed in the land register. The 7 rules (r. No 7)

23. The land register proceedings do not bear the nature of dispute between the two equal parties before the court. It’s strictly a registration proceeding, which is accounted among the tasks of legal protection in the scope of responsibility of common courts. Execution of the abovementioned rules has been given to court registrars. And some more basic information:registration procedure

24. The cases of non-litigious proceedings in the area of land register proceedings are handled by the district courts on the motion of applicant. The procedure of land registration is regulated by the Code of Civil Procedure. One must attach documents confirming the legal basis of land register entry along with the application. Land register proceedings are conducted by court registrar or judge: proceeding from behind a desk. And some more basic information:procedure

25. Entry might be made on the basis of document describing substantive action resulting in creation, change or cessation of right which is subject for the entry (the rule of substantial legalism). The basis for marking the real estate in land register are: documents of cadastre, private document with notary seal, court order, administrative decision, bank documents etc. Entries & documents

26. The Land Register in Poland in the future. • Questions… Plans…. Good examples… Section II. Questions.

27. 1. Do we need new public registers e.g. public electronic land registry and what modern factors affect the public registry traditional rules ? 2.Do we need to use and develop public electronic land registers in a given social and economic culture? 3. Do we need them within or outside the court system in Poland ? Questions

28. 1.Further development of electronic registry procedure (electronic motions, electronic notarial acts). 2.More active role of public notaries and executors (draft of law changes of 12th of October 2012) ? 3.Further development of activities on joint integration of the LRS and Cadaster? Plans…

29. Membership to European Land Registry Association in Brussels – European forum to exchange best practice, develop common models of LRS and… Goodexamples…

30. Many thanks to the great audience !!! e-mail: mrekawek@wsap.home.pl