Can a housing community prohibit short-term rentals in Poland? Legal analysis and practical solutions

Housing communities and short-term rentals in residential buildings is an issue that has become increasingly controversial in recent years and is the source of numerous legal disputes. With the dynamic development of the short-term rental market, especially in large cities and tourist destinations, this form of letting is increasingly becoming a source of tension and conflict between flat owners and other members of housing communities.

The problems with short-term tenants are obvious and increasingly felt by residents of multi-family buildings. They often generate noise, increase traffic in the building, leave rubbish in common areas, and sometimes fail to comply with basic house rules. Tourists with a key to the gate or an access code to the stairwell often return to their flats late at night, making noise and holding loud parties. In extreme cases, property owners are forced to resort to police intervention, which may also be ineffective. As a result, both residential premises and common areas of the property are used in a way that can significantly impede the daily functioning of permanent residents, affecting their comfort, sense of security, and the aesthetics and technical condition of the building.

Although the Ministry of Sport and Tourism has recently announced work on a draft law that would allow municipalities to ban daily rentals, this regulation has not yet come into force. This makes the need to create internal regulatory mechanisms and management tools within housing communities all the more apparent, as these would limit the negative effects of short-term rentals and ensure greater comfort and safety for residents.

In this article, we will answer the following questions:

1. Does a housing community have the right to introduce a total ban on short-term rentals?

2. What legal steps should a housing community take when short-term rentals are a nuisance?

What is short-term rental in Poland?

Under Polish law, short-term rentals are not defined differently from ‘normal’ rentals regulated by the Polish Civil Code and the Polish Act on the Protection of Tenants’ Rights, Municipal Housing Resources and Amendments to the Civil Code. Consequently, a short-term tenancy agreement is therefore a fixed-term tenancy agreement and the above provisions apply to it.

Can a housing community in Poland prohibit short-term tenancy?

In order to prevent problems with short-term rentals, housing communities often pass resolutions aimed at restricting short-term rental activities. Housing communities attempt to exclude the possibility of using premises located in the building for the following purposes:

• guesthouses,
• short-term rentals,
• hostels.

These decisions are primarily justified by the adverse impact of such activities on the common areas of the building and the recurring nuisance to residents.

Although the position of housing communities seems justified in many cases, court rulings indicate that such resolutions are flawed.

The courts consistently point out that the right of ownership is an absolute subjective right, constituting the broadest and most complete form of use of property. Its limits are set by statutory provisions, the principles of social coexistence and the socio-economic purpose of the law. Although restrictions on the right of ownership result from the Polish Act on the Ownership of Premises, this does not mean that the majority of co-owners forming a community may, by way of a resolution, impose on other owners the manner in which they exercise their right of ownership and decide how they are to use their premises. An analysis of the provisions of the Act indicates that community resolutions may only refer to matters related to common property, and not to individual private premises intended for short-term rental.

Consequently, the prohibition on the use of premises for short-term rental purposes goes beyond the statutory authorisation of the housing community, as it is not limited to the management of common property, but interferes with the use of the private property of the owners of the premises. Moreover, housing communities do not have the powers to take such action under the Polish Act on the Ownership of Premises.

A practical example from Polish case law:

‘A housing community cannot adopt resolutions that go beyond the scope of managing common property and interfere with the right of separate ownership of premises by establishing a ban on conducting business activity in the premises or expressing opposition to a change in the purpose of the premises.’ (the Polish Supreme Court ruling of 12 January 2021, ref. no. IV CSKP 20/21).

What steps can a housing community take when short-term rentals are a nuisance?

As indicated above, it is illegal for a housing community to prohibit short-term rentals. However, there are a number of effective tools that communities can implement to limit the negative effects of short-term rentals on residents and protect their legal interests.

Housing community regulations and short-term rentals – a way to limit the negative effects of short-term rentals

Pursuant to Article 13(1) of the Polish Act on Ownership of Premises, a housing community may adopt house rules (rules for the use of common areas), giving community members the power to specify how the property is to be used, taking into account its socio-economic purpose.

The house rules of a housing community do not interfere with the content of property rights, determined according to the criteria of Article 140 of the Civil Code, according to which, within the limits specified by law and the principles of social coexistence, the owner may, to the exclusion of other persons, use the property in accordance with its social and economic purpose, in particular, may collect benefits and other income from the property. Within the same limits, the owner may dispose of the property. economic purpose of their right, in particular, they may derive benefits and other income from the property. Within the same limits, they may dispose of the property.

However, the rules for the use of common areas may affect the scope of the rights and obligations of owners with regard to both common property and private premises. In the latter case, interference is only permissible in relation to behaviour that may affect the use of other premises and common areas of the property, as is the case with short-term rentals. The obligation to comply with the house rules means using the premises and common property in a manner that takes into account the personal and financial interests of other owners.

Persons who occupy premises on a basis other than ownership, in particular short-term tenants, are also obliged to comply with the house rules.

House rules may be introduced in a housing community by way of a resolution of the owners of the premises or an agreement concluded between them. This is an action taken by the community’s management board, which determines how the common property is to be used. In the case of short-term rentals, examples of permissible regulations in the house rules include, among others:

–    specifying quiet hours;

–    prohibiting smoking on balconies (balconies and terraces are common areas of the property);

–    regulations on the use of common laundry rooms, drying rooms or other common areas;

–    prohibiting parking in designated parking spaces;

–    the obligation to clean and remove waste from common areas of the property.

Of course, the house rules in a housing community may also cover other issues not directly related to short-term rentals, such as: rules for maintaining the aesthetics of balconies and facades, prohibition of playing ball on playgrounds and other common areas.

However, housing communities should bear in mind that the content of the rules cannot be arbitrary. For example, the house rules cannot contain provisions that oblige owners to inform the housing community management board about renting out their premises or making changes to their premises that do not affect the common property.

A practical example from Polish case law:

“The regulations may not impose liability on the owner of the premises for the behaviour of persons using the premises, the obligation to notify the community of the rental or lease of the premises, a ban on conducting business activity in residential premises without the consent of the community, or a ban on installing electricity sockets for personal use in basements and conducting activities there without the consent of the management” (the Polish Supreme Court judgment of 3 April 2009, ref. no. II CSK 600/08).

Violation of the rules of the housing community’s regulations through short-term rental in Poland

As a consequence of the adoption of the housing community’s rules and regulations, the assessment of whether the behaviour of the owner of the premises or the persons using the premises disturbs the use of neighbouring premises beyond the average measure is made in relation to the adopted rules and regulations of the community and taking into account its provisions. The assessment of the behaviour of the owner of the premises, which could disturb the use of neighbouring premises beyond the average measure, is therefore subject to subjectivity. This subjectivity consists in taking into account the adopted house rules and determining on their basis whether the acceptable level of disturbance has been exceeded or not.

At the same time, activities that may cause particular nuisance can certainly have negative consequences for the housing community in the form of noise or damage to common property.

With this in mind, in the event of a violation of the house rules, the housing community may use the following legal instruments.

Short-term rental in Poland – regular reporting of violations to the police

The first step that the housing community should take is to regularly report violations to the police. Pursuant to Article 51 § 1 of the Polish Code of Misdemeanours, anyone who disturbs the peace, public order, night-time rest or causes a public nuisance by shouting, making noise, sounding an alarm or other antics is subject to punishment. In practice, this means that persons disturbing the peace may be held legally responsible for their behaviour.

However, it should be remembered that police interventions are reactive in nature and will not permanently solve the problem of short-term rentals. Therefore, they are often used in conjunction with other measures, which are discussed below.

Short-term rental in Poland – claim for cessation of disturbances

Pursuant to Article 222 § 2 of the Polish Civil Code in conjunction with Article 144 of the Polish Civil Code, a housing community may demand the cessation of activities that hinder the use of common property or neighbouring premises. In practice, the house rules are of key importance here, as they specify the acceptable behaviour of flat owners and persons using their flats, enabling an unambiguous assessment of whether the applicable rules have been violated and whether the community may intervene. The community (or aggrieved property owners) may bring an action before the court to order the property owner, among other things, to:

• restrict noisy behaviour by tenants (e.g. noise, disturbance of the peace at night),
• refrain from actions leading to the destruction or contamination of common areas of the building,
• properly supervising tenants in order to prevent incidents that affect the comfort of neighbours.

The court may then issue an order to cease these activities.

In practice, evidence confirming the disturbances will be crucial in such cases, such as:

–    witness statements (neighbours, other property owners),

–    notes from security services (police, building security),

–    photographic or video documentation, e.g. noise, damage, disorder in common areas,

–    correspondence with the owner of the premises or building manager regarding intervention in the matter of disturbances.

This type of evidence allows the court to assess whether the actions of the property owner actually disturb the use of the common property or neighbouring properties beyond the average measure and justify the issuance of an order to cease the nuisance behaviour.

A practical example from Polish case law:

“Article 222 § 2 of the Civil Code stipulates that the owner has the right to claim restoration of the legal status quo and cessation of infringements against a person who infringes on ownership in a manner other than by depriving the owner of actual control over the property. At the same time, these claims are not subject to a limitation period if they concern real estate. Therefore, this provision also does not set a time limit. Such restrictions are also not introduced by Article 683 of the Civil Code (in conjunction with Articles 235 and 415 of the Civil Code), which stipulates that the tenant of a premises should comply with the house rules, unless they are contrary to the rights arising from the contract; they should also take into account the needs of other residents and neighbours. In any case, it has become customary that this lack of noise is most expected at night, which is devoted to rest before the next day. (…) It has become an established custom that night-time is, as a rule, a time for rest and sleep.” (judgment of the Polish District Court for Warsaw-Śródmieście in Warsaw of 13 September 2024, file ref. no. VI C 1357/22).

Short-term rental in Poland – compulsory sale of premises

A much more far-reaching power of the housing community is the legal mechanism of compulsory sale of premises defined in Article 16 of the Polish Act on Ownership of Premises. According to this provision, if the owner of a flat is in long-term arrears with the payment of fees due from him or her, or grossly or persistently violates the applicable house rules, or makes the use of other flats or common property burdensome through his or her inappropriate behaviour, the housing community may, in court proceedings, demand the sale of the premises by auction on the basis of the provisions of the Code of Civil Procedure on the enforcement of real estate. The compulsory sale of premises is therefore an exceptional measure which the community may apply in situations that are long-term or particularly burdensome for other owners.

he doctrine distinguishes between persistent and gross violations. Persistent behaviour is an action that is repeated or continues for a long period of time and significantly disrupts the use of common property or neighbouring premises. It is not necessary for the owner to act intentionally – it is sufficient that their actions (i.e. renting the premises for short-term purposes) cause difficulties in practice. A gross violation, on the other hand, may be a one-off occurrence, but it is clear and obviously disrupts the domestic order, for example through extremely loud parties disturbing the peace of neighbours. Minor infringements do not justify a request for compulsory sale, unless they persist over a long period of time and become persistent.

Assessing whether a particular behaviour violates domestic order is easier if the community has adopted rules of domestic order. In such a case, the actions of the owner or their tenants should be compared with the provisions of the rules – if they violate them, they are considered to be in violation of domestic order. Next, an assessment is made as to whether the violation is gross or persistent, which is crucial when considering the forced sale of the premises. In the absence of rules and regulations, the benchmark for proper conduct is Articles 140 and 144 of the Civil Code, which impose on the owner the obligation to use the premises in a manner consistent with the principles of social coexistence and the socio-economic purpose of the law, taking into account the specific nature of a flat in a multi-unit building.

A practical example from Polish case law:

“Short-term rentals lead to accelerated deterioration of common areas, and even their devastation (…) . The claimant, on the other hand, should act within the limits set out in Article 144 of the Civil Code, i.e. refrain from actions that would disrupt the use of neighbouring properties beyond the average measure resulting from the socio-economic purpose of the property and local relations. (…) She may request the intervention of the police or municipal police in the event of inappropriate behaviour by tenants, she may charge the perpetrators of the damage with the costs, and in extreme situations, they may sell the premises belonging to the owner who grossly or persistently violates the applicable house rules or whose inappropriate behaviour makes the use of other premises or common property burdensome – Article 16(1) of the Polish Act on the Ownership of Premises. (judgment of the Polish Regional Court in Gdańsk, 15th Civil Division, of 17 January 2018, ref. no. XV C 677/16).

Increased financial burdens for commercially used premises in Poland

Pursuant to Article 12(3) of the Polish Act on Ownership of Premises, a housing community may decide that owners of premises used in a manner deviating from average use – including premises rented on a short-term basis – shall bear a higher share of the costs of managing the common property. In practice, this means that the community may, by way of a resolution, introduce higher advance payments or contributions for such premises, which is compensatory for the increased burden on the common parts of the building. Higher costs result, for example, from increased traffic in the building, more frequent cleaning, higher utility consumption or the need for more frequent maintenance of common elements. This mechanism is a tool that allows the community to partially compensate for the impact of commercial activity on other flat owners without violating property rights.

More practical information on how to set higher fees for commercial premises can be found in the article ‘Commercial premises – service charges’.

Summary

Although the housing community does not have the legal authority to completely ban short-term rentals in private premises, it has a number of effective tools at its disposal to limit their negative impact on residents and common property. The key ones include, first and foremost, the introduction of house rules, which specify the rules for using the common areas of the building and define the acceptable behaviour of owners and persons staying in the premises. The rules may, among other things, specify quiet hours, prohibit smoking in common areas, regulate the use of common rooms, and define cleaning obligations.

In the event of violations of the rules, the community may take legal action, including bringing claims to court to cease the disturbances (Article 222 § 2 of the Polish Civil Code in conjunction with Article 144 of the Civil Code) and, in extreme cases of persistent or gross violation of domestic order by the owner of the premises or their tenants, demand the compulsory sale of the premises on the basis of Article 16 of the Act on the Ownership of Premises.

In addition, the community has the possibility of financially offsetting the effects of commercial activity in the premises by setting higher service charges for premises used in a manner that deviates from average use (Article 12(3) of the Polish Act on Ownership of Premises), which allows for partial compensation for the increased burden on the common parts of the building.

In practice, this means that effective protection of residents’ interests in the case of short-term rentals is based on an appropriate combination of internal community regulations, ongoing monitoring of compliance with house rules and available legal remedies, while respecting the property rights of landlords. These mechanisms make it possible to minimise nuisance and ensure the comfort of all residents without having to introduce a total ban on short-term rentals.