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LEGAL STATUS OF THE COMMUNITY OF CONDOMINIUM OWNERS (Problematyka podmiotowosci wspólnoty mieszkaniowej)

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Szymczak I.

Kwartalnik Prawa Prywatnego

2010

vol. 19

issue 3

717-755

The collective property is a great challenge for legislative bodies. Creation of proprietary rights to apartments causes numerous problems referring to 'holding in common' of parts of a condominium which is called a common property. This article describes a legal status of the community of condominium owners under the Polish Condominium Act of 24 June 1994. This law lacks the concept of the community of condominium owners. The scholars' views are divided into two groups. Some academics treat the community of condominium owners as a legal relationship between holders of proprietary rights, whereas others accept the community of condominium owners as a legal entity within the scope of the meaning provided by the art. of 331 § 1 Polish Civil Code. It seems that the dispute will last until the legislative body revises unclear statutory provisions of the Condominium Act of 1994. The main aim of this work is to provide the comparative view of the regulations concerning management of a common property. The solutions which are applied in legal systems are various, from a model of a community between holders of proprietary rights to apartments to a model of an association as a separate subject of the private law. There is a need to set out an institution for operations, administration and management of common elements of a condominium and its different concepts are discussed. By and large there is an agreement that the institution for management of a condominium is necessary. There is also a consent that it should be a separate legal subject of legal activity. What may be disputable is the question of vesting the subject with juridical personality. However the crucial point is about an area of its legal capacity. Because of a narrow area of tasks which are to be performed for running a condominium property the scope of legal capacity should be limited. Another problem is legal capacity of the community of condominium owners as the owner of real estate, especially a proprietary right to an apartment. Generally an association cannot be an owner registered in the land register (except for a compulsory purchase). Although such acquisition is allowed it should be strictly limited and supervised by the court. The last point refers to the association as a participant of legal activity. Regardless of the notion of a consumer under the provision of art. 221 Polish Civil Code it seems necessary to extend application of the provisions protecting consumers to a condominium association, which is not an entrepreneur. To conclude the Polish legislator faces a necessity of a significant amendment of Condominium Act of 24 June 1994. The review of foreign legal concepts shows different models, from legal personality granted by the Austrian law (and the British too) to the concepts of an entity comparable to non-trade partnership in the Swiss law. There is hope that the Polish legislative body will successfully find a prudent solution taking into account the main idea of a condominium which is 'check and balance'.

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1 Kwartalnik Prawa Prywatnego

1 2010

1 Szymczak I.

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LEGAL STATUS OF THE COMMUNITY OF CONDOMINIUM OWNERS (Problematyka podmiotowosci wspólnoty mieszkaniowej)