Polish Apartment Ownership Compared with South African Sectional Titles

• Jurisdiction: South Africa
• Pages: 165-189
• Date: 27 May 2019
• Published date: 27 May 2019
• Author: CG van der Merwe
• Citation: (2006) 17 Stell LR 165

POLISH APARTMENT OWNERSHIP COMPARED

WITH SOUTH AFRICAN SECTIONAL TITLES

CG van der Merwe

BA LLB BA (Hons) BCL LLD

Senior Research Fellow, University of Stellenbosch, Emeritus Professor of Civil Law,

University of Aberdeen

Magdalena Habdas

MSc PhD

University of Silesia

1 Introduction

The aim of this article is to compare the institution of apartment

ownership in a former socialist country, Poland, with the institution of

sectional titles in South Africa. We shall see that the seed of Polish

apartment ownership was already ingrained in the Napoleonic Civil Code

adopted in Poland in 1808. By contrast South Africa shunned its historic

links with Roman-Dutch law and transplanted the common-law strata title

legislation of New South Wales in Australia to regulate the ownership of

sections in a multi-unit building in the Sectional Titles Act of 1973. We shall

start with some general remarks on the Socialist property system that

prevailed in Poland after the Second World War. A brief survey of the

legislative history of apartment ownership in Poland and South Africa will

then be attempted, followed by a critical evaluation of various aspects of the

Polish and South African institutions. On the one hand, South African

lawyers would find it interesting to see how apartment ownership was

reconciled with socialist ideas and how these ideas still linger on in the most

recent Polish legislation on apartment ownership. On the other hand Polish

lawyers are given a glimpse of how apartment ownership is regulated in a

more sophisticated ‘‘second generation’’ statute.

2 Socialist Property Law

On 1 May 2004 Poland became a member of the European Union. This

signaled a new era in Poland’s political, economic and legal development,

which had come a long way since post World War II socialist property

concepts. After World War II the concept of ownership was modeled on

Marxist theory. Three types of property were distinguished, namely social

property (vesting in the State, co-operatives and other social institutions

such as political parties and workers’ unions), individual property (utilised

by natural or juristic persons as a means of production, like businesses,

land, plant and machinery) and personal property (private ownership of

consumable goods, for example cars and home appliances). Since social

165

(2006) 17 Stell LR 165

© Juta and Company (Pty) Ltd

property was favoured, legislation was aimed at limiting the scope of

private property, especially through the nationalisation of numerous

private enterprises and some land during the 1940s. Social and personal

property enjoyed special and full constitutional protection, whereas private

property was only protected by several parliamentary statutes. Unlike in

other socialist countries, private ownership of land was never completely

abolished in Poland.

1

Ownership of apartments was classified as personal property. Although

it is difficult to treat apartments as consumable goods, the fact that they

could only be utilised for personal use made it possible to include them in

this category. Being personal property, an apartment could not exceed the

size of a single-family house. This meant that residential units in buildings

erected before 1956 could not comprise more than five rooms; for buildings

erected after 1956 the usable area of a residential unit could not exceed 110

square meters or, in special circumstances (for example an artist’s studio)

140 square meters.

2

In other socialist countries, the land on which an

apartment building was erected belonged to the State. Apartment owners

were only granted the right of use in the land. By contrast, in Poland it was

permissible to sell units in State owned buildings, thus transferring the

ownership of land or the right of perpetual usufruct of land to private

individuals.

3

Consequently Polish apartment owners co-owned the land on

which the building was erected. Marxist concepts of ownership were

abandoned in 1989 when the Polish Civil Code was amended to reflect the

principles of a free market economy. However, socialist restrictions on the

ownership of apartments remained in force until 1994, when the current

Ownership of Units Act came into force.

3 Legislative History

3 1 Poland

Apartment ownership had been known in Poland since the adoption of

article 664 of the Napoleonic Civil Code in Poland in 1808.

4

This article

allowed individuals to own a storey or part of a storey in a multi-unit

building.

5

However, there is little evidence that it has ever been applied in

practice.

6

1

See Kurowska Upowszechnianie prawa wlasnosci nieruchomosci (1994) (Katowice Wydawnictwo

Uniwersytetu Slaskiego).

2

See Kalus Rechtsvera

¨nderungen im Bereich gesonderten Eigentums an Wohnungs- und Gescha

¨ftsra

¨umen

in Polen in Ogris & Rechberger (ed) Geda

¨chtnisschrift Herbert Hofmeister (1996) (Wien Manzsche

Verlags- und Universita

¨tsbuchhandlung) 311-320.

3

See Nowakowski Prawo rzeczowe — zarys wykadu (1980) (Warszawa PWN) 128-133.

4

See further Wolter, Ignatowicz & Stefaniuk Prawo cywilne — zarys czesci ogolnej (1998) (Warszawa

PWN) 42-49.

5

See Cioch & Witczak ‘‘Zasada superficies solo cedit w prawie polskim’’ 1999 Rejent no 5 29.

6

See Tatarkiewicz ‘‘Mieszkania na wlasnosc’’ 1925 Gazeta Sdowa Warszawska 409 as cited by

Watarkiewicz ‘‘Charakter prawny umowy o ustanowieniu odrebnej wlasnosci lokalu’’ 1999 Przeglad

Sadowy no 3 94.

166 STELL LR 2006 1

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