Online voting in the light of the Polish Act on Ownership of Premises and the Polish Civil Code
Section 23 of the Polish Act on Ownership of Premises provides that resolutions of the owners of premises are adopted either at a meeting or by the management board collecting votes individually, and resolutions are adopted by a majority of votes of the flat owners, calculated according to the size of their shares, unless the agreement or a resolution adopted in this manner provides that each owner has one vote on a specific matter.
The provision therefore does not refer to any ‘technical’ formal requirements for adopting resolutions, does not provide for procedures, and does not specify requirements regarding the Polish Actual method of conducting the vote. Furthermore, the provision does not require any specific form to be observed for a resolution to be validly adopted.
The Polish Act on Ownership of Premises specifies only three voting procedures:
• at a meeting of the housing community,
• by way of individual collection of votes by the housing community’s management board,
• partly at a meeting of the community, partly by way of individual collection of votes.
Furthermore, the provision does not specify the exact method by which votes should be cast at meetings of flat owners (for example: by a show of hands, using a ballot paper, via an electronic system, etc.), nor does it specify the procedure for collecting votes individually.
The legislator has therefore not explicitly provided for the possibility of online voting anywhere in the Polish Act on Ownership of Premises. The process of voting by members of housing communities through the submission of declarations of intent in electronic form must therefore be assessed in the light of the provisions of the Civil Code concerning declarations of intent.
Case law indicates that casting a vote on a resolution is precisely the submission of a declaration of intent, i.e. a conscious act by an authorised person aimed at producing legal effects, expressing their position on the content of the resolution under consideration. In practice, therefore, casting a vote means that the owner of the premises takes a specific position on a particular, defined matter that is the subject of the vote.
A practical example from Polish case law:
“There is no doubt that voting on a resolution constitutes a declaration of intent” (judgment of the Polish Court of Appeal in Gdańsk, 5th Civil Division, dated 27 March 2013, ref. no. V ACa 110/13).
“The multitude of such declarations, where they constitute a majority of the owners, leads to the adoption of a multilateral legal act, namely a resolution” (judgment of the Polish Court of Appeal in Warsaw, 1st Civil Division, dated 10 July 2013, ref. no. I ACa 18/13).
Consequently, based on the above position and in light of Article 1(2) of the Polish Act on the Ownership of Premises, voting on a resolution by members of a housing community should be interpreted in accordance with the rules set out in Article 60 of the Civil Code. However, in accordance with the provision, subject to the exceptions provided for in the Polish Act, the intention of a person performing a legal act may be expressed by any conduct of that person which sufficiently reveals their intention, including by expressing that intention in electronic form (declaration of intent).
A declaration of intent in electronic form may be made in many ways via an electronic device with internet access, including via email or an application. An electronic declaration of intent, even where the declaration is not accompanied by an electronic signature, is therefore a legally admissible form of expressing the will of a voter during a meeting of a housing community.
A practical example from Polish case law:
In the judgment of the Polish Court of Appeal in Gdańsk of 27 March 2013, case no. V ACa 110/13, the housing community adopted a resolution enabling its members to vote on resolutions electronically: by email to the property manager’s email account, following the prior submission of a declaration to vote in this manner in paper form, bearing an original signature and stating the property owner’s email address. Voting by flat owners via email was therefore not mandatory (as it was possible to vote in the ‘traditional’ manner) and was only possible if a member of the association had previously submitted the relevant written declaration.
The resolution on the possibility of voting online was challenged by one of the members of the housing community. However, the court found that the resolution did not infringe upon the interests of the flat owners. Quite the contrary. The Polish court stated that, given the rapid development of means of communication, such a resolution is fully justified and results in increased accessibility for those interested in the management board taking actions requiring a resolution of the flat owners.
It should be borne in mind, however, that in view of the voting procedures set out in the Polish Act on Ownership of Premises discussed above, the management board cannot introduce a mandatory method of electronic voting. Voting in this form should be merely an option, not an obligation. In other words, members of the housing community must also be given the option to vote in the ‘traditional’ manner.
A practical example from Polish case law:
“No provision of the Polish Act on Ownership of Premises prohibits voting on resolutions in electronic form; in accordance with Article 60 of the Civil Code, it is only necessary for the statement of the voting member of the community to take a form that sufficiently reveals their intention as to how they are voting” (judgment of the Regional Polish Court in Olsztyn, 1st Civil Division, of 22 October 2021, case no.: I C 619/21).
Electronic voting in a housing community – practical rules
In accordance with Article 62(2) of the Civil Code, in order to make a declaration of intent in electronic form, it must be transmitted via an IT system to another person in such a way that:
• that person is able to familiarise themselves with its content, and
• it is possible to identify the person from whom the declaration originates.
The provision therefore introduces legal requirements that must be met in order for the submission of a declaration of intent, i.e. online voting within a housing community, to be possible and not to be challenged through legal proceedings.
Consequently, it appears that, as a first step, the housing community should adopt a resolution on the possibility of voting on resolutions in electronic form and adopt rules of procedure for the electronic voting of flat owners on resolutions.
Such documents should unambiguously set out the rules for conducting electronic voting, in particular specifying the permissible channels of communication (e.g. a dedicated platform, email, an owners’ system), the procedure for identifying the flat owner, the method of confirming the casting of a vote, and the rules for archiving documentation related to the vote.
Verification of the owner’s identity in electronic voting
It will also be crucial to establish precise rules on how the housing association will verify the identity of the person casting a vote. A practical solution could be, for example, to adopt a procedure whereby every owner wishing to vote electronically submits a relevant, hand-signed declaration in paper form to the property manager. Such a document should specify the email address assigned to the owner and consent to the use of that address for making declarations of intent in matters concerning the housing community’s resolutions.
The declaration should also set out detailed rules for the use of email, including the method of voting, the obligation to send messages only from the previously notified address, and the consequences of changing it without first informing the property manager. This approach allows a specific email address to be linked to a particular flat owner, which strengthens the ability to identify the person making the declaration of intent.
Where the flat is owned by a married couple, we also recommend including in the declaration whether the flat is held under the statutory community of property regime or as joint ownership in fractional shares.
The rules and regulations should also address other matters not directly related to voting. This applies in particular to the procedures for changing the registered email address, updating property owners’ details, the IT security measures in place during data transmission, the procedure to follow in the event of a system failure or technical issues, as well as the rules governing the protection and archiving of electronic correspondence.
A dedicated email address for voting in the housing association
Where a housing association does not intend to use a separate voting application, a dedicated email address may be created to which flat owners can send emails stating their positions on the specific matters being put to the vote. In this situation, flat owners may be given the option to vote by:
- sending an electronic copy (scan, photo) of the completed and signed ballot paper to the designated email address, or
- sending a statement containing: the name and number of the resolution to which the vote relates, and their position – indicating whether the person is ‘for’ or ‘against’ the adoption of the resolution.
The housing association’s management board or administrator should confirm receipt of such emails on each occasion.
Summary – can a housing association vote online?
In recent years, Polish case law has adopted a liberal stance regarding the interpretation of provisions in the Polish Act on the Ownership of Premises relating to the possibility of collecting votes from members of housing communities electronically. This approach appears to be justified, as it takes into account the increasingly widespread use of technology in the lives of housing community members and, in practice, significantly facilitates the management of communities and the taking of decisions of importance to them.
It should be borne in mind, however, that the option to vote electronically must not be mandatory, but should merely constitute an additional, optional means of casting votes on housing community resolutions.
It also seems important to adopt rules of procedure for the electronic voting on resolutions by flat owners, which would clarify the technical details relating to the casting of votes.
Recently, there have been Polish court rulings on this matter (for example: the judgment of the District Polish Court for Gdańsk-Północ in Gdańsk, 1st Civil Division, dated 7 November 2024, case no. I C 1061/23). The Polish courts indicate that even where a housing community has not formally adopted a resolution permitting this form of voting, a vote cast by a flat owner via email may be valid.
The courts derive this from the fact that the Polish Act on Ownership of Premises does not prescribe a specific form for the individual collection of votes. This means that a flat owner may validly cast a vote not only on a ballot paper, but also via email, an electronic system or another means of communication, provided that it is possible to determine the content of the vote and the person from whom it originates.
Case law also indicates that an excessively formalistic approach to the procedure for adopting resolutions could hinder the functioning of housing communities and restrict flat owners in the exercise of their rights. What is important, therefore, is not so much the tool used for voting, but the ability to unequivocally determine the voter’s intention and the impact of any irregularities on the outcome of the resolution.
Yes, this position was confirmed, for example, by the Supreme Polish Court in its judgment of 6 September 2018, case no. V CSK 475/17. Until the voting on the adoption or rejection of a housing community resolution is closed, a flat owner may change their position and cast a vote different from the one previously expressed. This means that as long as the voting process has not been formally concluded, the owner’s earlier statement is not definitive. In practice, therefore, an owner may withdraw their ‘for’, ‘against’ or ‘abstain’ vote and replace it with a new position.
The outcome will therefore be determined by the state of the votes at the time the voting procedure is closed, and not by the content of the owners’ earlier declarations.
