The Act on Ownership of Premises of 24 June 1994 (Journal of Laws of 2000, No. 80, item 903, as amended) provides for 3 main ways of establishing separate ownership of premises: agreement; unilateral legal action of the owner of premises; and; court decision abolishing co-ownership.
Regardless of the chosen method, it should be remembered that the real estate in which separate premises are to be created should have its legal status (ownership or perpetual usufruct) regulated and disclosed in the land and mortgage register, and there must be at least two premises (residential or for other purposes).
An independent residential unit, within the meaning of Article 2, paragraph 2 of the Apartment Ownership Act, is a room or a group of rooms separated by permanent walls within a building and intended for permanent occupation by people, which together with auxiliary rooms serve to satisfy their housing needs. This definition is supplemented by the definition of a flat contained in the Regulation of the Minister of Infrastructure of 12 April 2002 on technical conditions which should be met by buildings and their location, as a group of residential and auxiliary rooms with separate entrances, separated by permanent building partitions, enabling permanent human residence and running an independent household. As a rule, premises should be independent even before they are separated out. In the case of separation by the court, it is possible to issue a preliminary order obliging to carry out the necessary adaptation works.
The document that confirms the independence of the premises is the certificate from the authority competent for architectural and construction supervision (starost). However, as the Supreme Court points out, in the proceedings for dissolution of co-ownership of premises, when assessing whether there are statutory prerequisites for establishing separate ownership of premises, the court is not bound by the certificate (…) The court makes this assessment on its own, in particular it may use the opinion of an expert, a specialist in architectural and construction matters. (Judgment of the Supreme Court of 6 November 2002; ref. no. III CKN 1372/00).
An agreement on separation of ownership of premises may take one of two forms – it may simultaneously abolish the co-ownership of real estate (agreement between co-owners) or transfer the ownership of real estate to another person (agreement between the owner and purchaser of premises). To be valid, such an agreement is concluded in the form of a notarial deed, and its legal effects depend on the entry in the Land and Mortgage Register. The agreement should include the type, location and area of the premises and premises belonging to it, the size of shares falling to the owners of individual premises in the joint property, as well as the method of administration of the joint property, if the co-owners resign or modify the statutory regime in this matter. Contractual establishment of separate ownership of premises is connected with the necessity to incur the costs of drawing up a notarial deed, depending on the value of the subject of the agreement. A significant obstacle to the contractual separation of premises may be the lack of consent of co-owners, most often resulting from neighbourhood or family conflicts.
A separate ownership of premises may also be established by its owner by way of a unilateral legal action (Article 10 of the Apartment Ownership Act). With regard to the form, the content of the declaration of will of the owner and the necessity to make an entry in the Land and Mortgage Register, the provisions concerning the establishment of separate ownership of premises by way of an agreement should be applied accordingly. The above-mentioned method is applied mainly with regard to housing cooperatives or in case of execution of developer agreements.
A third way is to refer the matter to court proceedings for the liquidation of joint ownership of property. It is also possible to obtain such a decision in proceedings for division of inheritance or division of joint property of spouses.
The court refuses to establish separate ownership of premises if division of the real estate in kind is impossible or contradictory to the social and economic purpose of the right. Article 618 of the Code of Civil Procedure is applicable to the proceedings for dissolution of co-ownership by establishing separate ownership of premises, according to which the court in these proceedings also decides disputes about the right to demand the dissolution of co-ownership and the right to property, as well as mutual claims of co-owners on account of possession of property. It is important that all claims mentioned in Article 618 § 1 of the Civil Procedure Code It is important that all claims referred to in Article 618(1) of the Code of Civil Proceedings (e.g. regarding e.g. remuneration for uncontractual use of the property) are raised already in those proceedings, because after the final decision on the dissolution of co-ownership has been taken, the claims provided for in the first paragraph cannot be pursued, even if they were not raised in the proceedings for the dissolution of co-ownership (Article 618(3) of the Code of Civil Proceedings). A motion to dissolve the joint ownership by way of establishing separate ownership of an apartment is submitted to the court of the place where the real estate is located and is subject to a fee – 300 PLN (in the case of a motion containing a consensual motion to dissolve the joint ownership) or 1000 PLN in other cases.