Staying the implementation of a housing community resolution as interim relief

Does filing a claim automatically stay the implementation of a resolution?

No. Under Article 25(2) of the Polish Act on Ownership of Premises, a challenged resolution is subject to implementation unless the court stays its implementation until the end of the case. Filing a claim, even one containing extensive objections to the resolution, therefore does not block actions taken by the management board of the housing community on the basis of the resolution that is the subject of the court proceedings.

Until the court issues an interim relief order, the resolution remains effective and may produce the legal and factual consequences provided for in it, both for the community and for the unit owner who filed the claim.

As correctly noted in the commentary to the Polish Act on Ownership of Premises: “A challenged resolution therefore generally produces the legal effects provided for in it and is treated as a valid resolution until the court sets the resolution aside by a final court judgment” (B. Lackoroński (ed.), Polish Act on Ownership of Premises. Commentary, 13th ed., 2024). Similarly, in case law, the Polish Supreme Court has repeatedly indicated that a challenged resolution remains in force and is subject to implementation unless the court stays its implementation for the duration of the proceedings. The claim itself therefore does not have a suspensive effect (judgment of the Polish Supreme Court of 16 November 2016, case no. I CSK 791/15).

The unit owner should therefore distinguish between two requests:

• request to set aside the resolution, which will be the subject of the court’s final decision,
• a request to stay the implementation of the resolution, which is intended to provide the owner with temporary protection for the duration of the court proceedings.

We discuss the grounds for setting aside a resolution, the time limit for filing a claim and the standing of the owner in more detail in our article on challenging a housing community resolution.

What does staying the implementation of a housing community resolution involve?

Staying the implementation of a housing community resolution is a temporary measure applied for the duration of court proceedings. It therefore does not set aside the resolution or finally remove it from legal circulation.

The purpose of interim relief is primarily to:

• preserve the existing legal and factual state, before the resolution was adopted,
• prevent irreversible or difficult-to-reverse effects for the housing community,
• ensure that the future judgment can actually provide protection to the owner,
• avoid a situation in which the proceedings formally end in success, but their outcome no longer has any practical significance for the claimant, or for the housing community.

Of course, the court’s decision to grant interim relief does not mean that the claimant, namely the unit owner, will win the case. It only means that, on the basis of the material presented, the court found that the claim had been sufficiently substantiated on a prima facie basis and that the lack of interim relief could prevent or seriously hinder the achievement of the purpose of the proceedings.

What conditions must be met for the court to issue an interim relief order?

Article 25(2) of the Polish Act on Ownership of Premises provides for the possibility of staying the implementation of a resolution. However, when assessing the application, the general provisions on securing claims under the Polish Code of Civil Procedure also apply. The unit owner should substantiate on a prima facie basis both of the following:

1. the claim to set aside the resolution, meaning that there are specific grounds for considering the resolution contrary to the law, the owners’ agreement, the principles of proper management of the common property or the owner’s interests,
2. a legal interest in obtaining interim relief, meaning why allowing the resolution to be implemented during the proceedings may prevent or seriously hinder the achievement of the purpose of the proceedings.

As indicated in legal commentary: “The court may stay the enforceability of a resolution by issuing a temporary order upon an application in which the applicant must make credible the request to set aside the resolution and demonstrate that the lack of interim relief could deprive him of satisfaction” (A. Doliwa, Ownership of Premises. Commentary, in: Housing Law. Commentary, 6th ed., 2021).

This means that a unit owner applying for a stay of implementation of a resolution should substantiate on a prima facie basis both the claim to set aside the resolution and the legal interest in obtaining interim relief. The point is not to fully prove the merits of the claim at this stage, but to present such circumstances and documents as initially justify the assertion that the resolution may be defective and that its implementation before the end of the proceedings may materially infringe the unit owner’s interests.

Practical example from Polish case law:

“It should be emphasised that a hypothetical economic interest is not the same as a legal interest within the meaning of Article 730¹ § 2 of the Polish Code of Civil Procedure. Although the assessment of the legal interest in granting interim relief is possible only in the context of a specific claim pursued by the claimants, and not in the abstract, one cannot speak of demonstrating a legal interest merely on the basis of general statements presented by the claimants” (order of the Court of Appeal in Kraków, 1st Civil Division, of 20 October 2016, case no. I ACz 1745/16).

At the same time, under Article 730¹ § 3 of the Polish Code of Civil Procedure, the court should choose a method of interim relief that provides the owner with adequate protection but does not burden the housing community more than necessary. Staying the implementation of a resolution should therefore be not only justified, but also proportionate to the risk it is intended to prevent.

Prima facie substantiation of the claim

The grounds for challenging a resolution may include in particular:

• inconsistency of the resolution with the law,
• inconsistency with the agreement of the unit owners,
• breach of the principles of proper management of the common property,
• infringement of the individual interests of a unit owner.

It is not sufficient to state generally that the resolution is unfair or unfavourable to a given unit owner or to the entire housing community. Specific defects should be indicated, for example defective voting procedure, lack of the required majority, voting on different versions of the document, exceeding the community’s powers, lack of valuation, unjustified differentiation between owners or excessive interference with the manner of using the unit.

At the same time, the application should be accompanied by appropriate evidentiary material substantiating the allegations raised on a prima facie basis, in particular the text of the resolution, voting cards, notices, minutes, correspondence, financial documents, technical opinions, valuations or other documents confirming the defectiveness of the resolution or the risk of negative effects of its implementation. The scope of documents will, of course, differ depending on the facts of the case.

Legal interest in interim relief

The second condition is to show what may happen before the end of the proceedings if the resolution is implemented.

In practice, the following sequence of events should be shown: implementation of the resolution will lead to a specific action by the housing community or a third party, that action will worsen the position of the unit owner, and that deterioration will hinder or prevent the achievement of the purpose of the proceedings to set aside the resolution.

In other words, the owner should substantiate on a prima facie basis that the lack of a stay of implementation of the resolution may lead to effects which would later be difficult, costly or practically impossible to reverse.

Depending on the case, this may include, for example:

• conclusion of an agreement for the sale of part of the common property,
• transfer of ownership to an investor,
• change of shares in the common property,
• commencement of adaptation works,
• loss of the ability to conduct business activity,
• termination of a long-term lease agreement,
• accrual of further unjustified charges,
• loss of liquidity or profitability of a commercial unit.

The more specific and direct the threat, the greater the practical importance of the application for interim relief may be.

Proportionality of interim relief

Staying the implementation of a resolution should protect the owner, but it must not burden the community to an extent greater than necessary.

It is therefore necessary to explain not only why interim relief is needed, but also why the proposed method of protection is proportionate. In many cases, staying the resolution merely preserves the state existing before its adoption and does not impose any new obligations on the community.

If the resolution covers several separate issues, it should also be considered whether it is necessary to stay it in full or only in a clearly separable part.

Examples of situations in which a court may stay the implementation of a housing community resolution

• An application to stay the implementation of a housing community resolution may be particularly important where the implementation of the resolution before the end of the proceedings could have effects that are difficult to reverse. This applies especially to resolutions concerning the sale of an attic, adaptation of a loft or transfer of part of the common property to an investor, because their implementation may lead to the transfer of rights to a third party, a change of shares, the establishment of new units or the commencement of construction works. We discuss such resolutions in more detail in our article on challenging a housing community resolution concerning the sale of an attic.
  
• Interim relief may also be justified in the case of resolutions concerning the withdrawal of consent for the sale of alcohol in a commercial unit, if their implementation threatens the loss of a tenant, rental income or the ability to conduct business activity. We discuss this in more detail in our article on housing community consent for the sale of alcohol.
  
• Staying the implementation of a resolution may also be relevant in the case of an unjustified increase in fees for a commercial unit, especially where the community does not show what additional costs are actually generated by the unit. We discuss the rules for differentiating charges in our article on a commercial unit in a housing community and operating fees.
  
• From the perspective of the housing community itself, interim relief may be risky in relation to resolutions concerning claims against a developer, in particular assignments of claims, powers of attorney for the management board and consent to litigation. A defective resolution may be challenged and its implementation stayed, which may delay the pursuit of claims described in our articles on defects in common property.
  
• Interim relief may also be important in relation to resolutions imposing additional costs of maintaining common parts on selected owners, especially where the community does not show that the way in which their units are used actually generates higher costs. In such a situation, the court may secure the claim and stay the implementation of a resolution requiring selected owners to bear the costs of additional cleaning.

How to properly prepare an application to stay the implementation of a housing community resolution?

A properly prepared application should be tailored to the specific resolution. It is not sufficient to repeat the general wording of the provisions on interim relief.

In practice, it is necessary in particular to:

• precisely identify the resolution, by indicating its number, date and subject matter,
• clearly formulate the request, usually seeking a stay of implementation of the resolution until the end of the case,
• substantiate the claim on a prima facie basis by presenting the main grounds for setting aside the resolution,
• describe the legal interest, meaning the specific effects that may occur before the judgment is issued,
• demonstrate the urgency of the matter by presenting information on the planned transaction, works, charges, consent or possibility of termination of an agreement,
• attach documents, for example the resolution, voting cards, lease agreement, correspondence, valuation, draft agreement with the investor or statement of charges,
• explain the proportionality of the interim relief by indicating that staying the resolution will preserve the existing state of affairs and will not burden the community more than necessary.

It is particularly important to attach documents showing the economic effects of the resolution. If the owner relies on the risk of termination of a lease agreement, they should present that agreement and indicate specific provisions. If the risk is the sale of part of the common property, information should be provided about the investor, powers of attorney granted to the management board, the planned date of the transaction or preparations for the commencement of works.

What changes when the court issues an interim relief order?

After the implementation of the resolution has been stayed, the housing community may not take actions covered by the scope of the court order. This means that, until the case is resolved, the community should refrain from actions aimed at implementing the challenged resolution.

However, the scope of protection should always be determined on the basis of the precise wording of the court order. If the court stayed the implementation of the resolution in full, the community should not take any actions aimed at its implementation. If, however, the interim relief concerns only a specific part of the resolution or a specific effect of its implementation, the prohibition of action applies only to that scope.

In practice, it is therefore important to formulate the application for interim relief precisely. The owner should indicate not only that they seek a stay of implementation of the resolution, but also what specific actions of the community are to be temporarily blocked. This reduces the risk of a dispute as to whether the management board, property manager or administrator may take certain actions despite the interim relief granted.

Interlocutory appeal against the court’s interim relief order

An interlocutory appeal may be filed against a court order on interim relief. This means that the housing community may challenge both the stay of implementation of the resolution itself and the scope of the interim relief granted, for example where it considers that the prohibition on taking certain actions is too broad or disproportionate to the purpose of the proceedings.

Similarly, the unit owner may challenge the order if the court dismissed the application for interim relief or granted interim relief in a narrower scope than requested. In practice, this means that the dispute over interim relief may proceed in parallel with the main case concerning the setting aside of the resolution, and the final scope of temporary protection depends on the content of the final court order.

Summary

Filing a claim to set aside a housing community resolution does not provide the owner with full protection. If the resolution may be implemented before the end of the proceedings, it is necessary to consider applying for its temporary stay.

The most important issue is to substantiate two elements on a prima facie basis: the likelihood that the resolution will be set aside and the specific legal interest in preserving the existing state of affairs.

This does not involve fully proving the case already at the interim relief stage, but rather substantiating that the resolution may be defective and that its implementation will create a real risk for the owner. The application should therefore indicate not only the objections to the resolution, but also the specific effects that may occur before the judgment is issued. The more precisely this connection is described, the greater the chances of successfully staying the implementation of the housing community resolution.