The obligation of the owner to make the premises available to the housing community management board for the purposes of maintenance, renovation and repair of faults in the premises in Poland

Although according to Polish law a residential premises constitutes separate property, it generally functions within the framework of a housing community. This situation results in certain restrictions on the owner’s right of ownership with regard to the undisturbed use of the premises, aimed at protecting the common interests of the residents and enabling the proper management of the common property.

One such restriction on the right of ownership is the obligation of the owner of the premises to make the premises available at the request of the housing community management whenever it is necessary to carry out maintenance, renovation or repair work in the common property, as well as to equip the building, its parts or other premises with additional installations. This obligation stems directly from Article 13(2) of the Polish Act on Ownership of Premises, and ‘this restriction results from the specific nature of separate ownership of premises located in a multi-unit building’ (T. Barański, in: Izdebski, Commentary on the Polish Act on Ownership of Premises).

he general purpose of the provision in question is to ensure that common property is maintained in proper technical condition. In practice, many elements of common property, such as installation risers, electrical cables, heating pipes and water pipes, run through premises owned by individual owners. As a result, in many cases, lack of access to the premises will limit or even prevent the housing community management board from performing its duties. The obligation of the owner of a premises to make it available at the request of the housing community management is therefore a functionally necessary solution, serving to protect the interests of all owners and to ensure the efficient and safe management of the common property.

This article addresses the following issues:

1. When can the management board of a housing community demand access to a residential premises?
2. What are ‘maintenance’, “renovation” and ‘breakdown’ within the meaning of Article 13(2) of the Polish Act on Ownership of Premises?
3. In the event of a ‘breakdown causing damage’, can the management board enter the residential premises?
4. How should ‘management board’ be understood in the context of Article 13(2) of the Polish Act on Ownership of Premises?
5. What claims are available to the housing community if the owner does not make the premises available?
6. Is the housing community entitled to compensation if the owner does not make the premises available?

When can the management board of a housing community demand access to a residential premises?

Undoubtedly, Article 13(2) of the Polish Act constitutes a significant interference with the right of ownership of premises. It seems that this is precisely why the legislator intended the provision to specify precisely the specific circumstances in which the management board of a housing community may demand access to a flat from its owner. The regulation therefore provides that this may only occur in situations where it is necessary:

1) to carry out maintenance of the common property,

2) to renovate the common property,

3) to repair a fault in the common property,

4) to equip the building, part of it or other premises with additional installations.

It is important to note, however, that the management board’s authority must be limited to maintenance, renovation and repair of the common property, and never to individual properties. The management board of a housing community does not have the right to interfere with individual residential premises – its function is limited to the management and maintenance of the common parts of the building. In practice, this means that the management board cannot demand access to a residential premises, for example in a situation where (in the opinion of the management board) it is necessary to carry out maintenance, renovation or repair of a part of the premises.

A practical example from Polish case law:

“The claimant’s claim went beyond the scope of the regulations referred to in the statement of claim: not only was access requested, but also, in essence, ‘permission’ to carry out work strictly within the private premises, and, in addition, both the insulation of the internal walls of the loggia adjacent to the defendants’ flat as well as the replacement of the balustrade within the loggia for purely “aesthetic” purposes, and above all, the unauthorised, excessive and potentially significant damage to the front panel of the loggia belonging to the defendants would infringe on the defendants’ property rights. There was no legal justification for Polish Actions which would, by their very nature, involve the permanent and irreversible destruction of part of the premises belonging to the defendants, and this would undoubtedly be the result of a positive ruling on access to the defendants’ premises” (judgment of the Regional Court in Słupsk, 4th Civil Appeals Division, of 26 April 2013, ref. no. IV Ca 168/13).

It should also be noted that, obviously, if the residential premises are the subject of a lease agreement, then the tenant is obliged to ensure access to the premises.

What are ‘maintenance’, “renovation” and ‘breakdown’ within the meaning of Article 13(2) of the Polish Act on the Ownership of Premises?

Maintenance in the common property

The doctrine indicates that the term ‘maintenance’ should be understood as Polish Activities aimed at refreshing, renovating elements of common property or protecting them against potential damage that may result from the use of these elements (J. Zębala, in: Osajda, Commentary, vol. VIB, 2018, Article 13 of the Polish Act on Ownership of Premises). Consequently, maintenance work includes both preventive measures to prevent deterioration of the technical condition and Polish Activities to restore the original technical condition of the common parts of the building.

The phrase ‘necessary for maintenance’ does not mean that the owner of the premises is obliged to make the premises available only when the elements of the common property are already at a stage that requires repair. The premise of ‘necessity’ refers to a situation where access to the premises is necessary to carry out maintenance of the elements of the common property.

This means that if the planned maintenance can only be carried out by entering a specific premises, the condition of necessity will, in principle, be met. It is argued that the housing community cannot be exposed to unreasonable expenses related to the maintenance of the common property if this objective can be achieved in a simpler and cheaper way (Osajda/ed. Lackoroński, Commentary on the Polish Act on Ownership of Premises, 2022, ed. 12/Romanow).

Renovation in the common property

The definition of the term ‘renovation’ is found in Article 3(8) of the Construction Law, according to which renovation is the performance of construction works in an existing building consisting in restoring it to its original condition, not constituting routine maintenance, whereby the use of construction products other than those used in the original condition is permitted. It therefore seems that the definition of ‘renovation’ is contrary to the definition of ‘maintenance’, but in prPolish Actice this distinction does not seem to be crucial, as Article 12(3) of the Polish Act allows access to the premises for both maintenance and renovation.

Failure in the common property

A failure should be defined in accordance with the common meaning of the word, i.e. ‘damage’ or ‘breakdown’ of an element of the common property.

Failure causing damage and management board access to residential premises

A different situation would be an emergency requiring immediate technical intervention, when there is no time to notify the owner of the premises in advance or obtain their consent to enter the flat. Therefore, if a failure occurs in the premises causing damage or directly threatening to cause damage, for example a burst water pipe, a gas installation failure or a short circuit in the electrical installation, the owner of the premises is obliged to immediately make it available to the management board in order to repair the failure. In the event of their absence or refusal to grant access to the premises, it appears that the housing community management board is entitled to enter the premises in the presence of a police officer and, if necessary, with the participation of the fire brigade. The legal basis for this right is indicated in the doctrine as Article 61(1)(2) of the Polish Act on Housing Cooperatives, applied analogously to housing communities.

How should ‘management board’ be understood in the context of Article 13(2) of the Polish Act on Ownership of Premises?

In practice, there is also the practical issue of how to define ‘management’ in the context of Article 13(2) of the Polish Act. It is pointed out that this concept should be interpreted in accordance with a functional (purpose-based) interpretation, and therefore the provision should be understood as being the most useful means of achieving its purpose. In practice, the ‘management board’ will be an entity vested with certain statutory powers, Polish Acting in the interest of the housing community. Therefore, if in a housing community the management of common property has been entrusted to an administrator on the basis of a civil law contract, then that administrator will be authorised to demand access to the premises.

What claims are available to the housing community if the owner does not grant access to the premises?

Our experience shows that in some cases, owners of premises unreasonably refuse housing communities (management boards of housing communities) access to the premises, arguing, among other things, the need to protect domestic peace, the right of ownership of the premises, questioning the legitimacy of the planned technical Polish Activities or simply refusing to allow interference in the premises. In most cases, these arguments are unfounded and have no legal or ‘technical’ justification.

In such a situation, does the housing community have a claim against the owner of the premises? It seems that, first of all, the housing community should take all possible amicable measures as soon as possible, and above all, send an appropriate request to the owner of the premises.

 However, if this does not bring results, legal Polish Action should be taken immediately. Case law and doctrine unanimously indicate that the community has the right to request the court to order the owner to make the premises available for the purpose of performing Polish Activities in the premises.

A practical example from Polish case law:

“Although Article 13(2) of the Polish Act on Ownership of Premises imposes obligations on owners of premises directly related to their premises (the owner of the premises is obliged by this provision to allow access to their premises, at the request of the management board, whenever it is necessary to carry out maintenance, renovation or repair of faults in the common property, as well as for the purpose of equipping the building, its parts or other premises with additional installations), in order to protect the interests of other owners of premises; however, in the event of a refusal to comply with the obligation to make the premises available, the housing community is only entitled to claim that the court order the premises to be made available for the purpose of performing the Polish Activities referred to in Article 13(2) of the Polish Act on Ownership of Premises. Resolutions of premises owners may only concern common property and matters related to it, and may not interfere with the rights of separate ownership of premises” (judgment of the Court of Appeal in Katowice, 5th Civil Division, of 3 September 2013, ref. no. V ACa 290/13).

How to formulate a claim in a case concerning the provision of premises to a housing community?

It is crucial for the housing community to formulate the claim precisely and correctly so that the judgment upholding the housing community’s claim is enforceable, does not raise doubts at the enforcement stage, and is not challenged in the event of a possible appeal by the defendant. The claim must therefore not be general or abstract in nature, but should clearly define the scope of the obligation imposed on the defendant, indicate the entity entitled to use the premises made available, the purpose of making them available and the period for which access to the premises is to be provided.

In particular, the statement of claim (and subsequently the operative part of the judgment) should include:

• the exact identification of the parties to the proceedings,
• a precise indication of the premises to which the obligation to make available relates (including the address and land registry number),
• a specification of the persons authorised to enter the premises (the housing community and persons authorised by it, including contractors),
• an unambiguous indication of the purpose of making the premises available, i.e. the performance of specific works relating to the common areas, and
• a reservation that access is to be provided for the time necessary to perform these works.

Only a sentence formulated in this way will enable effective enforcement of the ruling, including the possible application of coercive measures provided for in civil procedure regulations. An example of such a ruling would therefore be:

“The court (…) orders the defendant A.B. to make available to the claimant, i.e. the Housing Community at ul. Wspólnotowa 1 in Krakow, and to persons authorised by the claimant, the defendant’s residential premises located in Krakow at ul. Wspólnotowa 1, for which the District Court in Krakow keeps land and mortgage register No. 1234567, for the purpose of replacing the hot and cold water pipes and hot water circulation pipes, which are part of the common area of the building at Wspólnotowa 1 Street in Krakow, for the time necessary to replace the above-mentioned pipes.”

Once the housing community has a final and binding judgment, it may proceed with its enforcement. It is also recommended that the claim include a provision that if the owner fails to make the premises available within a specified period of time, the housing community may open the premises on its own at the owner’s expense. However, if such a reservation is not included in the judgment, the court, at the request of the claimant (the housing community), will summon the owner to make the flat available within a specified period, and if this period expires, it will grant the community the right to open the flat at the owner’s expense.

What evidence should a housing community attach to a lawsuit requesting a court order to make premises available?

In the case of a claim based on Article 13(2) of the Polish Act on Ownership of Premises, the burden of proof on the community primarily concerns demonstrating:

• Polish Active and passive legal standing,
• the existence of the defendants’ obligation to make the premises available,
• the necessity of access to the premises, and
• the unlawful refusal of the owner of the premises to make them available.

Active legal standing of the housing community

Firstly, the housing community will need to demonstrate its Polish Active legal standing by submitting documents confirming the existence of the housing community, such as:

• information on the assignment of NIP and REGON numbers,
• an extract from the land and mortgage register kept for the property,
• resolution on the election of the management board,
• power of attorney confirming the authority to Polish Act on behalf of the community.

As for the defendant, the evidence should primarily include an extract from the land and mortgage register for the premises, confirming the defendant’s ownership of the premises in question.

Grounds for the necessity of maintenance, renovation, repair

The second group of evidence should consist of materials demonstrating the necessity of carrying out the work. First and foremost, a resolution of the housing community should be submitted, together with a voting list, which specifies the scope of the technical work. The community should also demonstrate that the resolution has not been challenged under Article 25 of the Polish Act on Ownership of Premises, for example by submitting an appropriate statement from the housing community’s management board. Such documents will demonstrate the legal basis for the association’s Polish Actions and eliminate any possible allegations on the part of the owner of the premises regarding the housing association’s intention to carry out unauthorised construction works.

The necessity of entering the premises in order to carry out the works

The third category of evidence will be materials proving the necessity of entering the premises in order to carry out construction works. In this regard, the community should submit relevant technical documents, for example, a contract concluded with the contractor for the construction works, specifying the scope of works, as well as technical specifications, a design or a construction cost estimate.

For example, documents may indicate that the installation pipes that the housing community wants to replace run through and that it is impossible to carry out the work without access to this room. Depending on the acts of the case, additional evidence may include personal evidence in the form of witness statements, for example from the contract (who will confirm the need for access to the premises and the basement), as well as statements from the property manager or members of the housing association’s management board confirming the organisation of the works and attempts to obtain the defendants’ consent.

Attempts to summon the owner of the premises to make the premises available

Documents concerning amicable summons of the owner of the premises to make the premises available will also be crucial, for example, minutes of conversations, official notes of the administrator documenting attempts to contact the owner, as well as a report on the interruption of works prepared by the contract Actor.

Evidence of the consequences of the refusal to make the premises available is also important to demonstrate the legal interest of the community. In this regard, documents such as the work suspension report, settlement documents showing the costs of downtime, if any, and a work schedule indicating delays caused by the defendants’ attitude may be relevant. Correspondence with other owners of premises who suffered negative consequences of the suspension of work may also be submitted as supplementary evidence.

Possible further evidence

Finally, in order to neutralise any allegations of abuse of rights, the community should demonstrate the correctness of its Polish Actions, in particular by submitting evidence confirming that other owners made their premises available for the purposes of carrying out the works, that no complaints were made regarding the scope of the works and that there was no alternative, technically feasible way of carrying out the works without access to the defendant’s premises.

Claim for damages by the housing community in the event of failure to make the premises available

In addition to the claim described above, legal doctrine also argues that a breach by the owner of the premises of the obligation to make the premises available may also result in claims for damages by the housing community (see: R. Strzelczyk, A. Turlej, Własność lokali, Komentarz [Ownership of premises, Commentary]). The legal basis for this type of claim is Article 415 of the Civil Code, according to which anyone who causes damage to another person through their own fault is obliged to repair it.

In practice, the housing community should demonstrate the following conditions in its claim:

1. prove that the owner of the premises refused to make the premises or common areas of the property available in a manner that prevented or hindered the performance of necessary maintenance, renovation or repair work,
2. demonstrate that specific damage has been caused by the refusal to grant access to the premises, for example: increased construction costs, additional expenses for securing common elements of the property,
3. prove that the damage was caused directly by the fault of the owner of the premises, who did not provide access to the premises or garden, and not by other reasons beyond the control of the community,
4. demonstrate the defendant’s fault in refusing to grant access to the premises despite the obligation under Article 13(2) of the Polish Act on Ownership of Premises.

Summary

The obligation to make the premises available to the housing community management board constitutes a statutory restriction of the right of ownership, justified by the need to protect the common interest and ensure the proper maintenance of the common property. It follows directly from Article 13(2) of the Polish Act on Ownership of Premises and applies to situations where access to the premises is necessary to carry out maintenance, renovation, repair of faults in the common property or to equip the building or other premises with additional installations.

Due to the fact that the obligation to make the premises available constitutes a significant interference with the constitutionally protected right of ownership, any claims by the housing community should be formulated only after a prior, thorough analysis of the specific factctual and legal situation. In each case, it is necessary to examine whether the prerequisite of necessity for access to the premises has been met, whether the planned Polish Activities Polish Actually concern the common property, and whether there is no alternative way of carrying out the work without interfering with the property rights of the owner of the premises.

For this reason, a lawsuit to order access to the premises for the housing community should be filed in a precise and balanced manner, with a clear definition of the scope of the requested access, the purpose of entering the premises, the persons authorised to carry it out and the duration of the interference. Vague or blanket requests are unacceptable, as they could lead to excessive, disproportionate interference with property rights and, as a consequence, result in the dismissal of the claim or problems at the stage of enforcement of the judgment.