What can be regulated by the rules of a housing community in Poland? A practical guide for housing communities

The rules of a housing community, sometimes referred to as house rules and rules of operation of a housing community, are the basic document organising the rules of operation for residents in a multi-unit building in Poland. Although the Polish Act on the Ownership of Premises (hereinafter: ‘AOP’) does not impose an obligation on housing communities to adopt rules and regulations, in practice many communities adopt them, rightly recognising that they are an effective legal tool for increasing order, safety and the efficient functioning of the housing community within the building. The main purpose of the rules and regulations is therefore to ensure harmonious neighbourly relations and to prevent disputes between flat owners in the future.

However, our experience shows that, in many cases, in Poland housing community management boards and flat owners are not fully aware that, in accordance with the Polish Act on the Ownership of Premises, the housing community regulations may only contain provisions that are consistent with the law, including Article 13(1) of Polish Act on the Ownership of Premises, and may not infringe on the property rights of individual flat owners in Poland. In practice, this means, among other things, that the regulations cannot modify the statutory rights and obligations of owners, impose additional financial burdens on them, restrict the use of the premises beyond the scope of orderly standards, or interfere with elements that can only be regulated by resolution.

In this publication, we explain what can (and what absolutely cannot) be regulated by the rules of a housing community.

What are the rules and regulations of a housing community?

Pursuant to Article 13(1) of Polish Act on the Ownership of Premises, the owner bears the expenses related to the maintenance of their premises, is obliged to maintain their premises in proper condition, observe house rules, contribute to the management costs related to the maintenance of the common property, use it in a manner that does not hinder its use by other co-owners, and cooperate with them in protecting the common good. It is this provision that entitles housing communities to adopt house rules, also known as the rules of operation of a housing community.

The rules of the housing community generally supplement and clarify the provisions of the Act on the Ownership of Premises. Their purpose is to define and clarify the rules for the functioning of the common property and the organisation of the residents’ life within the building. Importantly, the document is not a local law, but an internal document binding on all owners of premises in the property (residential and commercial) and persons using the property.

A practical example from Polish case law:

“It is difficult to require absolute precision from house rules, which is often hard to find in statutory regulations. Their purpose is to regulate neighbourly relations and eliminate future conflicts. They are created not by lawyers, but by property owners who want to protect the common property and mutual respect for the rights of residents.” (judgment of the Polish Court of Appeal in Krakow, 1st Civil Division, of 17 May 2018, ref. no. I ACa 1282/17)

What can be regulated by the rules of a housing community?

The question of what can be regulated by the rules of a housing community in Poland is, in practice, a matter of considerable controversy. This is due to the fact that property owners often try to influence the behaviour of individual residents by means of ‘orderly’ resolutions, while the Act on the Management of Common Property and the Civil Code very precisely define the limits of the competences of housing communities.

The fundamental principle is that the rules and regulations of a housing community may only apply to common property. As the entity managing the property, the housing community may only regulate matters concerning the common parts of the building and the plot of land, i.e. those elements which are not separate premises and do not serve only one owner. Consequently, a housing community cannot adopt any regulations concerning individual premises in the building.

The regulations may, however, specify in detail:

• the manner of using common areas such as staircases, corridors, lifts, basements and storage rooms, drying rooms, pram storage rooms, bicycle storage rooms, green areas, patios, playgrounds, technical rooms, parking spaces (if assigned to specific premises). In practice, owners may, for example, adopt regulations prohibiting the leaving of private belongings in corridors due to fire safety regulations, establish rules for parking in common areas or specify the hours of use of sports fields and playgrounds,
• introduce rules regarding quiet hours, renovation work, waste segregation, obligations to maintain balconies in proper condition, rules for storing bicycles, prams or building materials,
• regulate the rules of coexistence between residents, for example: the obligation to clean up after pets, guidelines for walking dogs on the premises, a ban on disruptive or unsafe behaviour, and therefore any issues that may contribute to good coexistence between residents, provided that they do not violate the property rights of the premises,
• specify the rules for the use of equipment and installations that interfere with the common property, for example: air conditioners, satellite dishes, awnings, security grilles, advertisements and signs. The community may require owners of premises to obtain consent for the installation of such equipment,
• determine the manner in which third parties may use the property, including rules for admitting renovation crews, opening hours for gates or wickets, and methods for providing keys or remote controls.

The right of the housing community to enforce the compulsory sale of a flat

In the event of persistent violation of the rules of order by the owner of the premises (or their tenants), the housing community may file a in court, citing Article 16(1) of the Polish Act on Ownership of Premises. According to this provision, if the owner of the premises:

1) grossly or persistently violates the applicable house rules, or

2) through his inappropriate behaviour makes the use of other premises or common property burdensome persistent violation of house rules or other gross misconduct by the owner,

the housing community may file a lawsuit in Polish court, which may result in the forced sale of the premises by bailiff auction. In order for the community to initiate proceedings based on the above provision, a resolution authorising the management board to file a lawsuit against a specific owner is required. The lawsuit must demonstrate that the violations were gross and persistent, and not one-off or incidental. In our experience, such proceedings are difficult, so in order to maximise the chances of success, the housing community should gather detailed evidence on the case before initiating proceedings.

What can’t be covered by the housing community rules?

• The rules can’t mess with the flat owenr’s right to own the place

First of all, the rules can’t mess with your right to own your place in any way. So, for example, it’s not okay to:

–    prohibiting short-term rental of residential premises,

–    prohibiting business activity in the premises,

–    imposing an obligation to obtain the consent of the housing community for renovations carried out inside the premises,

–    prohibiting the keeping of animals in the premises,

–    setting visiting hours in the premises,

–    specifying noise levels inside the premises (only general regulations, e.g. the Code of Petty Offences, may be referred to).

A practical example from Polish case law:

“The owners of premises may not therefore adopt any resolutions that would interfere with the rights of separate ownership of premises, impose obligations on the owners of premises other than those resulting from the Act on the Ownership of Premises, or modify the general rules of civil liability of their members contrary to the provisions of law. This is undoubtedly the nature of the provisions of the contested house rules concerning the liability of the owner of a premises for the behaviour of persons using the premises with his knowledge, the liability of the owner of a premises for such persons’ compliance with the rules and his obligation to familiarise such persons with the rules, liability for any damage caused by children, the obligation to report any faults to the community manager, the prohibition on conducting business activities in residential premises without the consent of the manager, the prohibition on installing electrical outlets for personal use in basements and conducting service or production activities there without the consent of the community, and finally, the prohibition on opening stairwell doors with an intercom to strangers.” (judgment of the Polish Regional Court in Łódź, 2nd Civil Division, of 2 September 2021, ref. no. II C 2438/20)

• The regulations cannot impose financial penalties for violations

The housing community may not introduce ‘financial’, “disciplinary” or ‘regulatory’ penalties, fines or additional fees in the regulations, even if their sole purpose is to ensure compliance with the regulations by maintaining order or preventing damage. Case law indicates that the provisions of the Polish Act on Ownership of Premises do not give communities the right to issue authoritative instructions to owners, as the community is not an administrative body, but only an entity managing common property.

Therefore, if a housing community adopts a resolution that implements a mechanism of financial penalties for members of the housing community for any violation of the rules, each owner has the right to appeal against it in court on the basis of Article 25 of the Polish Act on Ownership of Premises, according to which the owner of a premises may appeal against a resolution in court on the grounds that it is inconsistent with the law or the agreement between the owners of the premises, or if it violates the principles of proper management of the common property or otherwise violates his interests.

A practical example from Polish case law:

“No provision of law allows a Housing Community to make declarations of will of an authoritative nature, which individual owners would be obliged to comply with. There are no grounds for the Housing Community to adopt preventive regulations aimed at preventing possible threats or damage“. (judgment of the Polish Court of Appeal in Warsaw, 1st Civil Division, of 20 January 2014, ref. no. I ACa 1394/13).

• The regulations cannot modify the rules resulting from the Act on the Ownership of Premises

It is also unacceptable to modify in the housing community regulations the rules resulting from the Act on the Ownership of Premises in the scope of: voting, determining shares, limiting or extending the powers of the management board provided for in the Act. The regulations of the housing community cannot determine matters which the legislator has regulated in a mandatory manner in the Act on the Ownership of Premises.

A practical example from Polish case law:

“It should therefore be generally agreed with the defendant that, whether by way of a notarial deed or a subsequent resolution recorded by a notary public, the owners are free to decide on the manner of managing the common property, provided that the adopted rules do not conflict with the Act on the Ownership of Premises and the exceptions provided for therein, which should not be interpreted broadly.” (judgment of the Polish Court of Appeal in Szczecin, 1st Civil Division, of 20 October 2011, ref. no. I ACa 526/11).

How can a housing community adopt housing community regulations?

The rules and regulations of a housing community are adopted by way of a resolution of the owners of the premises. This resolution may be adopted at a meeting of owners, by individual collection of votes or in a mixed form (partly at a community meeting, partly outside it). A simple majority of shares in the property is required to adopt the rules and regulations.

Of course, as a rule, the draft rules are prepared by the community’s management board or the administrator acting on the basis of a management agreement, in practice based on the recommendation of the housing community’s legal representative.

It is also good practice to make the draft rules available to the owners of premises in advance, in a manner that allows them to familiarise themselves with its content before voting.

As the rules and regulations are an internal document of the community, they do not need to be submitted to any authority or formally registered. It is sufficient to adopt a resolution.

Can a resolution of a Polish housing community to adopt the rules and regulations of the housing community be challenged?

Yes, and in practice this happens quite often in Poland. If the resolution to adopt the rules violates the law, the principles of social coexistence or in any way harms the interests of the flat owner, in accordance with the Polish Act on Ownership of Premises, each flat owner has the right to bring an action for its repeal.

One of the most common reasons for challenging resolutions concerning housing community regulations are provisions that interfere with the owner’s rights to their premises, and thus exceed the statutory powers of the housing community as defined in the Polish Act on Ownership and Management of Premises. As indicated above, the community may only regulate the rules for the use of common property, but under Polish law it has no right to impose restrictions on individual parts, i.e. the space belonging to individual owners.

In proceedings concerning the repeal of housing community regulations, the court assesses not only the content of the regulations, but also the procedure for adopting the resolution. Therefore, a resolution may be repealed for both substantive and formal reasons (e.g. lack of the required majority of shares, errors in counting votes, incorrect notification of the meeting).

Consequently, careful preparation of the draft rules and proper conduct of the vote are crucial for their validity.

A practical example from Polish case law:

“In accordance with the house rules: parking of motor vehicles is only permitted in designated areas. Parking on pavements, access roads and lawns is prohibited. In the event of parking outside the designated area, penalties will be imposed in the form of wheel clamping or towing to a paid secure car park at the expense of the owner of the incorrectly parked car. No provision grants such a right to a housing community or other natural or legal persons hired by them, in particular, Article 13 of the Act on the Ownership of Premises does not grant such a right. The housing community’s independent granting of such a right to itself must therefore be considered contrary to the law, i.e. the Constitution of the Republic of Poland. In the opinion of the Polish Court of Appeal, there is no doubt that by parking on the premises of the community outside the designated areas in a manner that hinders the use of the common property by other co-owners, the claimant violates the rules provided for in Article 13 of the Act on the Ownership of Premises, but this does not justify the application of such severe sanctions against him or anyone else.” (Judgment of the Polish Court of Appeal in Warsaw of 27 May 2009, ref. no. VI ACa 1124/08

Summary

The rules and regulations of a housing community in Poland are an important organisational tool which, if properly constructed, can increase safety, comfort and predictability in the functioning of owners of premises in a multi-unit building. However, it is important that the rules and regulations of a housing community must remain within the limits set by the Polish Act on Ownership of Premises and generally applicable law.

In practice, this means that the rules and regulations may only regulate in detail the use of common property, including matters of order, safety, aesthetics and the organisation of residents’ lives, provided that they do not infringe on the property rights of individual premises. On the other hand, they cannot interfere with the use of premises that are separate property, impose additional financial obligations, introduce disciplinary penalties or modify the competences of the association’s bodies provided for in the Act.

Well-prepared rules and regulations help to avoid neighbourly conflicts, specify the rules for the use of common areas and raise the standard of property management. However, it is worth remembering that each provision of the rules and regulations should be verified for compliance with the law and current case law – otherwise, the community runs the risk of having the resolution overturned by the Polish court.