Quoad usum – real property breakdown to use

Nature of real property division to usage (quoad usum)

Quoad usum is simply a change from sharing the full thing to the direct usage of separated parts of things.

Article 206 k.c says that each of the co-owners is entitled to share and benefit in so far as it is compatible with the co-ownership and usage of the goods by the another co-owners.

This provision is of a comparatively binding nature, hence all co-owners can agree on a different way of holding and utilizing the commons by contract. In particular, they may allocate ownership and usage over time, distribute the benefit, entrust the property to the exclusive possession of 1 of the co-owners with the simultaneous work to issue benefits to the another co-owners according to the size of their shares, or divide item to usage quoad usum (yes: ultimate Court order of 28 January 2022, Act III CZP 18/22).

The method of utilizing the property may so be determined by dividing quoad usum. specified a contract may be concluded for a specified or indefinite period.

Form of real property division agreement to usage (quoad usum)

In doctrine and jurisprudence, the view prevails that the conclusion of the quoad usum agreement does not require a certain form of conduct, which may consequence in the conduct of co-owners, which, under the circumstances in question, raises no uncertainty about their will thus revealed (Article 65). In this way, the content of the contract may be shaped in the course of its execution (so: resolution of the full composition of the ultimate Court, act No. III CO 33/62, OSNC 1964/2/22, and decision of the ultimate Court of 14 November 1963, CR III 81/63, OSNC 1964/9/189).

If, on the another hand, the breakdown of the quoad usum is to be disclosed in The Eternal Book, in view of the wording of Article 31(1) of the Perpetual Books and Mortgages Act, specified a contract should be concluded in writing with notarially certified signatures.

Practical application of the breakdown quoad usum

In practice of trading, the construction of the contractual division of the common real property takes place between co-owners of multi-family dwellings (stone houses) where there has been no separation of premises which are the subject of separate ownership, as well as erstwhile entering into contracts for the sale of real property with developers on the primary market, on the basis of which owners of individual premises are entitled to exclusive usage of adjacent gardens or connected balconies.

The contract is besides utilized for the acquisition of parking spaces in underground garages treated as 1 non-residential establishment. Co-owners get a share in the joint ownership of the garage and then get the right to usage a certain numbered parking space, excluding another co-owners (yes: ultimate Court order of 18 September, IC CSK 286/18, not publ.).

The judicial breakdown of quoad usum is applied in the event of various conflicts between co-owners, concerning matters relating to co-ownership and the usage of common property where the abolition of co-ownership for various reasons is not possible and the contractual division of immovable property is hampered by the conflicting interests of co-owners. At that time, the court shall find the manner in which the common property is held and used, taking into account the interests of each of the co-owners, and may amend the contract in the event of a change of circumstances (yes: order of the ultimate Court of 28 January 2022, Act III CZP 18/22). This may be the case in non-trial proceedings on the basis of the provisions of the Management Board. (Articles 611-616 k.p.c.).

Judicial division of real property to usage (quoad usum)

It should be stressed that the division of the property quoad usum applied between the parties by way of a judgement of a court is in breach of the right of the co-owner to share and usage common property (yes: Private Law System). Volume 3. The Law of Indigenous Property. ed. E. Gniewek; C.H. Beck, Warsaw 2013, p. 697), and the conclusion of a contract for the division of the property to usage (use) was impossible or occurred with the injury of the co-owner. Thus, it is simply a manifestation of the co-owner's claim to be allowed to share and usage the common thing. These circumstances, in peculiar the intent of that ruling outlined above, must be taken into account erstwhile assessing the existence of circumstances justifying the amendment of that provision.

In literature and jurisprudence, the view prevails that the substance of division of goods to usage (quoad usum) takes place on a non-process basis, on the basis of the provisions on management, a common thing, where the exercise of a common thing requires the cooperation of all curious parties, the application to the court for division of quoad usum may be made, as with the application for average management, each of the co-owners, and the basis of that division is Article 201 of 2nd of the C.D. (so: Priest [in:] Settlement (ed.) civilian Code. Commentary 2019, Issue 22, Commentary on Art. 206 k.c., Legalis; Resolution of the ultimate Court of 6 March 1997 I CZ 7/97; Resolution of the ultimate Court of 29 November 2007, III CZP 94/07, OSNC 2008 No D, item 96; Resolution of the ultimate Court of 17 March 2017, III CSK 64/16).

The ultimate Court in its resolution of 29 November 2007, act No III CZP 94/07, OSNC-ZD 2008, No D, No 96, concluded that the provisions of Articles 611-616 kpc apply besides to the application of the real property division quoad usum and its amendments. It does not concern only proceedings relating to the establishment of a joint board (Article 203 kc), or subject substance (Article 269 kc),

As well as the ultimate Court in its resolution of 29 November 2007 (Event No III CZP 94/07, Biul. ultimate Court 2007, No 11, p. 9), the legal basis for the division by the property court of quoad usum are Articles 199 of 2nd and 201 of 2nd. Article 201 k.c. provides that the consent of the majority of co-owners is to be shared in average management activities. In the absence of specified consent, each of the co-owners may request judicial authorisation to carry out the action. According to the cited provision, the conduct of average management, including the determination to usage another than the statutory usage of parts of shared properties, requires the consent of the majority of co-owners, the majority being calculated according to the size of the shares (Article 204 k.c.) alternatively than the number of co-owners. However, in the case of the average management of a court, each of the co-owners shall be entitled to request specified a decision.

In the event of any of the co-owners making the above request, it is essential to find first by the court whether it is possible, in the factual circumstances of a peculiar case, to make specified a division for use. The decision on the contested division will be possible only if the court, on the basis of the evidence, finds in the case that it is possible for the individual joint owners to benefit separately from the physically separated parts of the common thing (yes: judgement of the Szczecin territory Court of 21 April 2017. Act No II Ca 1425/16).

The emphasis here requires that the judicial regulation of property relations will not always lead to a condition that co-owners would accomplish through contractual real property division for use. If they are incapable to reconcile the common interests themselves and the court needs to intervene in this respect, they must anticipate that the effects of the judicial division will be little convenient to them than the possible contractual result of their own compromise. However, they are not due to the defective division by the court, but only to the deficiency of agreement between the parties and frequently even the conflict between them (yes: order of the Gdańsk territory Court of 25 September 2012, III Ca 204/12, LEX No 1714467).

In another words, since the participants and the applicants were incapable to agree on the way in which the property was divided, including, for example, by partial waiver of their demands, they must anticipate that, in judicial proceedings, the court may divide the property in specified a way that it does not correspond to 1 of the parties, but which would be justified on grounds worthy of equal consideration with the applicants, the interests of the applicant (yes: the order of the territory Court of Lodz of 31 December 2018, Ref. Act III Ca 1284/18).

Legal basis for the division by the property court quoad usum

The ultimate Court in its resolution of 29 November 2007 (III CZP 94/07, Biul. SN 2007, No 11, p. 9) noted that the legal basis for the division by the court of the immovable property quoad usum was Article 199 of 2 K.C. and Article 201 of 2 K.C.

Person who may request the division of the property quoad usum

In its order of 29 November 2007, the ultimate Court indicated that, in the event of where the exercise of a common thing requires the cooperation of all concerned, a request for division of quoad us sum may be made to the court, as with a request for average management, each of the co-owners (Article 201 second conviction k.c.). However, in another cases, the application to the court for the division of the immovable property quoad usum should be made, as should the application for an activity exceeding the scope of the average board, by co-owners whose shares are at least half (Article 199, second sentence, kc).

Nature of real property distribution to usage (quoad usum)

The determination of the usage of the property in the form of quoad usum is contractual, mandatory — the co-owner has a claim for exclusive usage of a separate part of the thing which corresponds to the provision of another co-owners consisting of not utilizing it and abolishing the exclusive usage of it by the co-owner from a part of it separated (yes: judgement of the Poznań territory Court of 1 September 2017) Act No II Ca 376/17).

The real property sharing agreement (quoad usum) only produces liability effects in relations between its parties, without altering ownership relations and establishing in a comparatively sustainable way the usage of common things. The division of items of common usage may besides be made by the court (yes: resolution of the ultimate Court of 29 November 2007, III CZP 94/07, OSNC OSNC-ZD 2008, No 4, item 96, order of the ultimate Court of 28 January 2022, Act III CZP 18/22).

The Quoad Usum Agreement may form the relation between co-owners as regards the usage of common things different, as is apparent from the wording of Article 206 k.c., and the provisions of specified an agreement are binding if they comply with the applicable legal order (yes: judgement of the Court of Appeal in Gdańsk of 15 June 1993, act mention I Acr 400/93, OSA 1994, No 6, item 33)

The decision on division for usage (quoad usum) is simply a decision taken in average management activities in common (cf. Post. SN of 6.03.1997, ref. I CZ 7/97 , opubl. in : OSNC 1997/8/11).

Effects of real property division to usage (quoad usum)

As a consequence of the division of quoad usum, the separate usage of the object of co-ownership does not violate its substance, it does not enrich anyone unjustly, it does not take power over the thing, but defines it in relation to each of the co-owners.

Co-owner in holding quoad usum is inactive the holder of all things and a subsidiary of the contractually separated part. Breaking down quoad usum means an interior ‘organization’ of the usage of common things. However, there is no change in ownership relations.

As a consequence of the establishment of a division of quoad usum , each of the co-owners shall carry out the average management activities themselves with a common concern concerning the exclusive part of the thing. This besides applies to activities exceeding the scope of the average management, where their effects are limited to the part that is separated from the co-owner and in no way affect the full thing (e.g. hiring out a premises dedicated to 1 of the co-owners for exclusive use).

Breakdown of real property quoad usum a size of shares of co-owners

As has already been noted, erstwhile dividing things in quoad usum, the size of the shares held by the various co-owners cannot be completely disregarded. Resulting from Article 206 k.c. Whereas the right of the co-owner to share a common property does not, however, mean that the degree to which he uses the common thing must correspond to the amount of ownership or any another specified fraction; the scope of co-ownership and usage of things is determined primarily by the way in which, under circumstantial circumstances, the co-ownership and usage of things can be reconciled with that of another co-owners (as follows: J. Gudowski (ed.), civilian Code. Comment. Volume II. Property and another rights in property, Issue II, ultimate Court judgement of 29 December 1967, III CRN 306/67, ultimate Court resolution of 28 May 1973, III CZP 25/73, ultimate Court order of 12 September 1973, III CRN 188/73).

Passive co-owners' consent to real property division quoad usum

Pursuant to Article 60 k.c., the will of the individual carrying out the legal act, and so besides concluding a real property division agreement quoad usum, may be expressed by any conduct of that individual revealing his will in a adequate manner. In addition, silence and passive conduct, agreeing to the actual usage of the property, is an implicit declaration of will and marina for the division of quoad usum (yes: ultimate Court judgement of 16 September 2015 III CSK 446/14, not publ., and ultimate Court order of 19 May 2016, Ref. Act III CSK 282/15).

Amendment to the real property division agreement for usage (quoad usum)

The way in which the common property is utilized is not definitive as it can be changed by contract by agreement of all co-owners, or by judicial decision, if there are fresh compelling grounds for specified change (yes: resolution of the ultimate Court of 12 April 1973, III CZP 15/73, OSNCP 1973, No 12, item 208 and order of the ultimate Court of 12 September 1973, III CRN 188/73, OSN 1974, No 11, item 183).

The case law indicates that the amendment of the division agreement quaad usum, given its nonsubjective and the essence of the stabilisation of the actual and legal relations between co-owners, may happen in the event of fresh circumstances, indicating crucial reasons for different arrangements for the usage of things by co-owners for reasons of socio-economic interest (yes: ultimate Court resolution of 12 April 1973, III CZP 15/73, OSNC 1973, No. 12, item 208).

There is so no uncertainty that a peculiar contract or method of exercise established in the court ruling is not definitive and may be amended by agreement of the owners or on the basis of a court ruling, provided that the grounds justifying a modification in a given respect, even in the form of a crucial change in circumstances (such as the ultimate Court resolution of 12 April 1973, III CZP 15/73, OSNCP 1973, No 12, item 208; the ultimate Court order of 12 September 1973, III CRN 188/73, OSN 1974, No 11, item 183).

The ultimate Court, in its order of 12 September 1973 (III CRN 188/73, OSNC 1974/11/183), ruled that the division of the common goods to be utilized (quoad usum) was not definitive, since, depending on the changed circumstances, it could change accordingly either by common agreement or, in the absence of specified an agreement, by judicial decision (removement of joint ownership).

In judicial proceedings, the applicant should show the emergence of fresh and applicable circumstances in which there are crucial reasons for different arrangements for joint owners to usage the common property. Each contract, besides in terms of the usage of real estate, is primarily intended to stabilise actual and legal relations. specified a contract may be amended only in the event of fresh circumstances, in the light of which there are crucial reasons for different arrangements for the usage of things by co-owners (yes: ultimate Court Resolution of 12 April 1973, III CZP 15/73, OSNC 1973/12/208).

Breakdown of quoad usum a succession

Pursuant to Article 922 k.c., all the rights of the heir are inherited, as well as possession which, although not the law, is part of the inheritance. Under Articles 199 to 201 k.c., each co-owner shall be governed by the law of the Management Board by a common thing, and in accordance with Articles 206 k.c. each co-owner shall be entitled to share and enjoy the common thing in so far as it is compatible with the co-ownership and usage of the goods by the another co-owners.

This right does not mean the right to a physically defined part of the common thing, but the right to have all things to the degree that it is compatible with the sharing and usage of the common thing by another co-owners. The exercise of these powers by the co-owners may either be specified by them in the contract or consequence from a law or judgement of a court, as well as the way of the board of directors is common.

As the ultimate Court pointed out in its judgement of 25 October 1973, the mention to Act III CRN 247/73 is not a property law and is not inherited. However, the rights and obligations resulting from the contract determining the way in which the co-owners usage the common property are property rights not closely related to the co-owner, but involving them in things, so that they do not expire upon the death of the co-owner (yes: ultimate Court in its order of 4 October 2002.

Effectiveness of division quoad usum vis-à-vis the acquirer of the property

Pursuant to Article 221 kc, legal acts determining the management and the way in which the common property is utilized or excluding the right to abolish co-ownership shall besides have effect in relation to the buyer of the participation if the buyer has known or could easy have known about them. The same applies to the case where the usage of the goods has been established in a court ruling.

Violation of division quoad usum

In the event of a breach of the contract of usage of the property, the individual whose entitlement has been infringed shall be entitled under Article 206 k.c. in conjunction with Article 224 §2 k.c. and in conjunction with Article 225 §1 k.c. claim for payment of remuneration for uncontractual usage of goods (yes: judgement of the Poznań territory Court of 1 September 2017) Act No II Ca 376/17).

If 1 of the co-owners infringes the contractual rights of another co-owner, the another co-owner shall be entitled, depending on the nature of the infringement, to a claim for non-compliance and possibly to issue that part of the property. The protection of its powers so derives from the regulation in Article 222 kc. The claim is addressed to the second co-owner (yes: judgement of the territory Court of Warsaw of 17 May 2016, Ref. Act IV C 757/15).

If, therefore, 1 of the co-owners infringes the co-owner's rights to benefit from the common thing resulting from the relationship, the co-owner whose right has been affected shall be entitled, depending on the nature of the infringement, to a claim to be allowed to co-ownership or to reconstruct a lawful state and to cease infringements (yes: judgement of the ultimate Court of 28 September 1978, III CRN 172/78, OSNCP 1979, No. 7-8-8, item 150, resolution of the SN of 23 April 1993, III CZP 36/93, OSNCP 1993, No. 12, item 213, judgement of the SN of 19 December 2001, IV CZ 198/01 non-publ.).

Breakdown of quoad usum and real property expenditure and expenditure

The division of common goods to usage (quoad usum) not only results in a division of income and benefits corresponding to the division of properties to have among co-owners, but the same regulation shall apply to the allocation of expenditure and expenditure each of the co-owners bears on the physically separated part of the property allocated for use.

Co-owner making the essential investments and expenses for the benefit of which, in a given arrangement of actual relations between co-owners, another co-owner does not benefit,may not require the second to reimburse these expenses (so resolution of the ultimate Court of 8 January 1980, III CZP 80/79 developing the position taken on the division of the property quoad usum in the resolution of the full composition of the civilian Chamber of the ultimate Court of 28 September 1963 III CO 33/62 (OSNCP 1964/222) and in many another judgments); all the more so concerning any another expenditure and expenditure (so: resolution of the ultimate Court of 10 May 2006, III CZP 11/06).

Therefore, the joint owners of the property may, by concluding specified an agreement, amend the rules on co-ownership of the common property and on the benefit and expense of the common property referred to in Articles 206 and 207 k.c. specified a division may consist in the fact that each of the co-owners or any of them receive for exclusive usage a physically separated part of the thing and that each of them, but for others, uses and benefits it. This consequently leads to the adoption that, to this extent, each of the co-owners, utilizing a physically separated part, bears all the expenses associated with the operation of that part. Since the division of the common item quoad usum besides results in a division of income and benefits corresponding to the division of ownership and usage among co-owners, the same rule should apply to the allocation of expenses each of the co-owners bears on the physically separated part of the property allocated to it for use.

In a division agreement, the co-owners do not gotta explicitly lay down these rules, since specified rules on the sharing of benefits and income and expenditure and burden arise from the actual contractual division of the property to use. The agreement, like any other, produces effects not only in it but besides in terms of the principles of social coexistence and established customs (Article 56 k.c.), and resulting from the principles of social coexistence and established customs, as a consequence of the property division agreement quoad usum is specified a division of benefits and revenues and expenses and burdens that the benefits and revenues are collected only by those co-owners who, with the exclusion of the others, benefit from a peculiar part of the property and they only bear the expenses, burdens and expenses on that part of the common property (so: ultimate Court in its resolution of 8 January 1980 III CZP 80/79 (OSNC 1980/9/15), and the ultimate Court of 19 October 2012. Act No V CSK 526/11, not publ.). Consequently, it is appropriate for the Court of First Instance to dismiss the applicant’s claim to regulation on him or her from the participants in the proceedings for the benefit of the part of the property they have used.

Only the expenditure on the alleged common parts essential for the non-degradation of the property, as conservative would not require the consent of the second co-owner (Article 209 k.c.). The co-owner of specified investments would be entitled to claim reimbursement of the essential investment to the degree corresponding to the share of the another co-owner (yes: judgement of the Poznań territory Court of 1 September 2017) Act No II Ca 376/17).

However, if the co-owner’s contributions (in real property division quoad usum) increase the value of the full thing (for all co-owners) that co-owner will be able to request the settlement of these expenses in proceedings for the abolition of joint ownership (Yes: ultimate Court judgement of 18 August 2017, lit. IV CSK 628/16, Lex No. 2360536)

The breakdown of the quoad usum, in general, eliminates the admissibility of a request for reimbursement under Article 207 kc. This leaves the way for the settlement of specified expenses on the basis of provisions of unwarranted enrichment, which, in the case of the granting of a part of the property to 1 of the co-owners, who, erstwhile managing it under the quoad usum, has only made a contribution to it, is to reduce the amount owed to the another co-owner – respectively, i.e. in proportion to the amount of the share held by the latter, of course all in a situation where this surcharge is owed to him in general – due to the fact that the value granted as a consequence of the division of part of the property is higher than the value of the share in the commons (such as the order of the ultimate Court and on 17.03.2017, III CSK 137/16, Lex No 2278294; the order of the ultimate Court of 17.01.2018, IV CSK 163/17, Lex No 2449292).

Increase in the value of the full property due to the contributions of 1 of the co-owners to the part of the property utilized by him during the divided quoad usum

Any differences which may arise in the value of all things in connection with the efforts made by the various co-owners should be taken into account in the proceedings for the abolition of co-ownership. There is no uncertainty that other co-owners who have not made these contributions, and who have increased the value of all things, cannot be unjustly enriched with the expense of the 1 who bears the expenditure, in the abolition of co-ownership, where the value of the property has been determined taking into account these investments and the amount of the contribution equalising the shares has been so determined.

The cost-bearing rules laid down in Article 207 k.c. shall so apply. Only then, where these expenditures have been effected in accordance with the rules of the Management Board, a common thing, and therefore, erstwhile all co-owners share a thing and 1 of them has borne the expenditure on which all have benefited. In specified a situation, in accordance with the position taken by the ultimate Court in resolutions of 19 December 1973 III CZP 78/73 (OSNC 1974/10/165) and of 10 May 2006 III CZP 11/06 (OSNC 2007/3/338) and in the order of 5 December 1997 I CKN 558/97 (OSNC 1998/78/112), he may request the reimbursement of the equivalent of those expenditures, in accordance with the principles laid down in Article 207 k.c., of persons who were co-owners at the time of the investment (such as the order of the ultimate Court of 19 October 2012, Act No V CSK 526/11).

The ultimate Court in its decision of 19 May 2016, Ref. Act III CSK 282/15 he pointed out in a akin context that the expert should find the value of the property and the state and value of the expenditures, expenses and benefits present, not at the date of the ruling, but at the date on which the joint ownership was definitively abolished. Therefore, regardless of when, after that date, the expert’s opinion was issued, it had to take into account the marketplace conditions prevailing on the date of the abolition of the joint ownership and the price and the valuation of that date. Therefore, for example, it would not be applicable for the result of the case had the court ruled on an opinion issued more than 12 months before 16 October 2014, provided that it took account of marketplace conditions existing on 18 January 2012.

Breakdown of quoad usum and rental of real property parts

The division of the item for exclusive usage means that, in the scope of the separate co-owners, it may take decisions excluding another co-owners, including the anticipation to rent that part of the item, lease it or give it free of charge – specified an act is not a common activity and does not apply to Article 201 kc. Consequently, the another co-owners cannot request an adequate share of the benefits of this part of the thing if they are the consequence of the efforts or efforts of that co-owner who uses this part of the thing but for the others (yes: ultimate Court resolution of 13 February 1981. , III CZP 72/80, opubl. w: OSNCP 1981/11/207).

Further, the another co-owners cannot request any of these benefits either straight from the tenant or the tenant. Furthermore, it should be considered that the another co-owners may not apply to court against the tenant, the tenant or the individual who borrows for remuneration/compensation for the uncontractual usage of this part of the property. A 3rd organization has the title to have a part of the goods derived from a co-owner who uses it but for the others (yes: judgement of the Warsaw territory Court of 17 May 2016, Ref. Act IV C 757/15).

The abolition of the divisionproperty quoad usum

The ultimate Court, in its order of 12 September 1973 (III CRN 188/73, OSNC 1974/11/183), indicated that the division of the common possessions to be utilized (quoad usum) was not definitive, since, depending on the changed circumstances, it could be amended accordingly, either by an agreement of joint owners, or, in the absence of specified an agreement, by judicial decision (the abolition of co-ownership).

This temporary nature of the division of quoad usum cannot be without affecting the way in which it is carried out. While the expenditure relating to the definitive division of the common things by the abolition of co-ownership is already materially justified in the fact that the relation of co-ownership has been abolished, specified expenditure relating to the division of the common things of quoad usum requires economical justification, in favour of the intention to bear them despite the temporary nature of specified division (such as the ultimate Court ruling of 29 December 1967, III CRN 306/67, OSNCP 1968, No 12, item 215 and of 28 May 1973, III CZP 25/73, OSNCP 1974, No 3, item 40).

Termination of the real property division agreement for usage (quoad usum)

The ultimate Court in its order of 28 January 2022, Act III CZP 18/22 stated that the construction contained in Article 365 1 kc (in substance: the perpetual work of a continuous nature expires after termination by the debtor or the creditor in accordance with contractual, statutory or customary terms, and, in the absence of specified time limits immediately after termination, does not apply to the property division agreement for usage (quoad usum).

The standard of Article 365 1 kc is simply a consequence of the presumption that no bond relation may make obligations on permanent binding parties; this applies in peculiar to the inadmissibility of permanent binding of parties to contracts specified as lease, lease, lease, lending, bank account, company, any permanent cooperation agreements; Article 3651 k.c. provides that they expire by way of announcement if the parties do not scope consensus on their termination by agreement of the parties. This provision is simply a mandatory provision and limits the autonomy of the parties' will and the rule of contractual freedom provided for in Article 3531 k.c. The provisions of the Agreement contrary to Article 3651 k.c. are invalid pursuant to Article 58 k.c. Therefore, the Parties may not, in a permanent agreement, exclude the admissibility of termination by way of notice. (so: ultimate Court judgement of 13 June 2013, V CSK 391/12, OSNC 2014, No 2, item 22).

However, the acceptance that each of the co-owners may at any time, for any reason, terminate the sharing agreement for the benefit of the common item shall be contrary to the substance and intent of the agreement, which shall form the rights of its parties in a manner contrary to the statutory model referred to in Article 206 k.c. Change of content or termination of a division agreementmay arise as a consequence of a concerted agreement between all co-owners or by a judicial decision, which guarantees respect for all co-owners' rights and interests.

Rent collection from different premises and division quoad usum real estate

The ultimate Court in its judgement of 29 December 1967, III CRN 306/67 indicated that the agreement by the co-owners that each of them would collect rent from another premises and even from the components of individual premises, does not mean dividing the home quoad usum, but simply defining the way in which the joint owners share income from the common property.

Breakdown of quoad usum a real property sitting

Having things as part of the division of quoad usum is simply a form of having a dependent. On the another hand, only same - possession can lead to sitting of property.

Other ways of dividing property to use

In addition to dividing the property quoad usum, you can besides divide things to usage in terms of time or according to the kind of benefits it brings, or assigning things to direct usage to 1 of the co-owners with the work to give the remaining appropriate share of benefits in nature or money (so: J. Ignatowicz, K. Stefaniuk, Law of Matter, Warsaw 2006, p. 135).

Request for division of quoad usum and parallel case for the abolition of property co-ownership

In accordance with Article 618(1) of the Code, in proceedings for the abolition of joint ownership, the court shall besides settle disputes over:

• the right to request the abolition of joint ownership,
• property rights,
• mutual claims by co-owners for possession of goods.

Upon initiating proceedings for the abolition of joint ownership, a separate procedure in the cases referred to in Article 618 of the Code shall be inadmissible. However, Article 618 k.p.c. is not subject to the request to divide quoad usum. The division to usage is of a nature which temporarily regulates the usage of the property for the duration of joint ownership. It does not affect the right to request the abolition of joint ownership. Both proceedings for both the abolition of co-ownership and the division of quoad usum can be conducted in parallel (yes: the decision of the territory Court for Łódź-Vidzew in Łódź of 15 September 2017, Ref. Act II Ns 2578/16).

In the above case, the territory Court besides noted that the division of property (real estate) to use, in contrast to the case for the abolition of the co-ownership of the property, is not and cannot be determined solely by the size of the share in the law of co-ownership of the property, or how it raised a proxy associate with the size of the premises. In order to decently recognise specified a request, it is essential to take into account the overall circumstances, including in peculiar the legitimate interests and real needs of the co-owners, and to search to minimise the hazard of conflicts arising or escalating against this background.

As shown by the above, 1 of the overriding characteristics of the proceeding should be the case, and as a result, the settlement of the division of the property to usage is the velocity of its release, which is to guarantee the swift and efficient elimination of existing conflicts and the deficiency of agreement between co-owners. Conducting long-term evidence to find the exact area of all premises would undoubtedly have undermined this objective, which would have been so unjustified that, as indicated above, specified evidence is not to be decently resolved on the application for division of the property for use.

Breakdown of quoad usum real property as a kind of management activity

The ultimate Court in its decision of 14 March 2017. Ref. Act III CSK 64/16 he argued in favour of the views expressed in the case-law and in the discipline of law that, in the absence of a statutory definition of average management activities or exceeding the average management, it was common in the absence of uniform criteria for the classification of certain activities of co-owners as belonging to the first or second groups, that this qualification depends on the facts of each individual case. Formulated in judicature and doctrine, general indications, which constitute an act of the average board, and which is exceeding it, are simply indicative and, at the same time, relative; an identical act may, under certain circumstances, have the actual character of the average board, and in others may go beyond that scope.

The average management activity usually includes activities related to the average operation and management (administering) of the common thing, i.e. collecting benefits and revenues, maintenance, administration and the widely understood protection of things from loss, harm or destruction. The scope of the average management exceeds specified legal acts as a regulation or its burden on a lien, mortgage or another limited rights in kind.

When considering whether the contractual division of the common goods is, in principle, a common activity of the board, and if so, whether it exceeds its usual scope, it should be pointed out that the issue of Article 206 k.c. (and previously the applicable provisions of the Decree of 11 October 1946). – Dz.U. in 1946, No 57, item 319 with amendments) was the subject of decisions relating primarily to claims held by the co-owner against his will to share and usage common property. In its resolution of 28 September 1963, III CO 33/62, the ultimate Court considered whether specified a co-owner was served by a claim for co-ownership or by a request for the court to divide things into non-trial proceedings. The ultimate Court pointed out that, if it is not possible for all co-owners to usage the full thing in the manner set out in Article 90 of the substantive law (currently 206 k.c.), each of the co-owners may demand, within the management board, a joint decision on a different (than the 1 presently regulated in Article 206 k.c.) way of utilizing the common thing.

As regards things whose socio-economic characteristics or uses do not licence the usage of things in the manner indicated in Article 206 k.c. (which applies in peculiar to a residential or economical building) the conclusion of a sharing agreement by the co-ownersquoad sum is an act of average management within the meaning of Article 83(2) of the law in kind – presently Article 201 k.c. This agreement may be amended at any time, and in the event of a dispute between the co-owners, any of them may apply to the court for judgment (so also: ultimate Court resolution of 29 November 2007, III CZP 94/07, OSNC-ZD 2008, No. 4, item 96).

It follows from the above that the conclusion of another contract, which is only complementary to the already existing and approved by the majority of co-owners of the usage of the property, argues in favour of the assessment that another contract does not, in the circumstances of the present case, constitute an act exceeding the scope of the average board of directors in common and could have been concluded in an crucial and effective manner by the majority of co-owners (Article 201 k.c.) (yes: ultimate Court in its decision of 14 March 2017. Ref. Act III CSK 64/16).

Division of quoad usum real property and redevelopment of construction site

According to settled case law, the construction of a building, the conversion of a building into a real estate, covered by joint ownership in fractional parts, goes beyond the scope of the average management and belongs to the category of regulation in common (so: judgement of the Provincial Administrative Court in Krakow of 20 May 2009, II SA/Kr 1188/08, judgement of the Provincial Administrative Court in Bydgoszcz of 3 June 2008, II SA/Bd 16/08).

In this case, the consent of all co-owners is needed (Article 199 k.c.). In the absence of specified consent, a decision of the court which assesses the intended activities shall be required, as provided for in Article 199 k.c. In accordance with that provision, the court, erstwhile examining a request from the co-owners to consent to an act exceeding the scope of the average board, should take into account the intent of the intended action and the interests of all co-owners.

In its literature, it was argued that the conditions of Article 199 k.c. would be fulfilled if the intended act had an economical rationale and did not lead to harm to any of the co-owners (T. Filipiak [in:] A. Kidyba (ed.), KC. Comment, Lex 2012. The Court of First Instance shall, pursuant to Article 199 of 2 K.C., measure the peculiar situation freely, taking into account 2 circumstances: the intent of the intended action and the interests of all co-owners. The intended action must so not, for example, be pointless from an economical point of view and must not harm any of the co-owners (E. Gniewek (ed. ) KC. Comment. CH Beck 2013).

In theory, it can be pointed out that the activity planned by the applicants may benefit all co-owners, but there may besides be a situation where actions taken by applicants will not benefit any co-owners. In the first case, therefore, the interests of the co-owner will besides be assessed by the prism of its profits, but in the second case only by the prism of possible harm to the co-owner who opposes this action.

Property division ratio quoad usum and content 206 k.c.

The concept of co-ownership allows different ways of having and utilizing the common things by the co-owners. It includes direct and joint possession of all things and the usage of it by the joint owners, direct and exclusive possession and the usage by the co-owners of part of the common thing, as well as indirect possession and usage by the co-owners of all things common by the collection of civilian benefit. The regulation provided for in Article 206 k.c. shall take into account only direct and joint ownership and usage by all co-owners of all things. This provision is simply a comparatively applicable provision.

As pointed out by the ultimate Court in its resolution of 29 November 2007 (III CZP 94/07), this law-defined way of holding and utilizing the common property is only valid if the different way is not provided for in the co-owners' agreement or judgement of the court. Since co-ownership is simply a form of property, its protection measures, which primarily include a recovery claim (Article 222 §1 k.c.), can besides be applied by co-owners. If a 3rd organization has taken possession of a shared property and all co-owners have filed a recovery claim against it, the investigation of that claim is in rule no different from the recovery claim by 1 owner. In particular, it is clear that the joint proprietors may, in specified cases, besides search the recovery claim referred to in Articles 224(2) and 225 k.c.. If any co-owners come up with a recovery claim against another co-owners who own the full thing together, they must bear in mind, in addition to Article 222(1) of the Code, the rules provided for in Article 206 of the Code.

Therefore, where Article 206 applies in a given case, the method of possession of a common item does not regulate Co-owners' agreement or court ruling, each co-owner shall be entitled to have the full thing straight together with the another co-owners; the limit of his or her entitlement shall be the same as each of the another co-owners. Consequently, a co-owner who deprives another co-owner of possession under the conditions laid down in Article 206 k.c. infringes his or her right under shared ownership, and himself, in so far as he or she possesses a thing and uses it in a way that excludes the possession and usage of another co-owners, acts unlawfully. Where, therefore, by reason of the nature of the common thing, it is possible for any co-owner to usage it independently of the usage of the another co-owners, the co-owner whose entitlement has been infringed in the above manner may, pursuant to Article 222 § and in Article 206 k.c., get from the co-owner, who uses the property in a way that excludes his co-ownership, a claim for authorisation of co-ownership.

Where, on the another hand, the nature of the common exercise of ownership implies that the joint owners cooperate, a co-owner who has no possession of property by another co-owner may apply to the court for the division of the common things to use.

Costs of the real property division procedure (quoad usum)

Article 520(1) kpc lays down the rules on the costs of non-trial proceedings to be borne by each associate for the costs of proceedings relating to its participation in the case.

Whereas Article 520 (2) and (3) kpc provides that where participants are of varying interest as a consequence of a proceeding or their interests are conflicting, The Court of First Instance may comparatively divide the work to reimburse costs or place it on 1 of the participants in its entirety. The same applies to the reimbursement of the costs of proceedings paid by participants. Where the interests of the participants conflict, the Tribunal may impose on the associate whose requests have been rejected or rejected, the work to reimburse the costs of proceedings incurred by another participant. This provision shall apply mutatis mutandis if the associate has acted untotally or of course inappropriately.

The case-law and the doctrine point out that there is no “a duel” between the 2 opposing parties in the non-trial proceedings, and that there is so no mention of a loser who should reimburse the costs of the proceedings to the winning organization (cf. Article 98(1)). On the contrary, it is clear from the disposal of Article 520 k.p.c. that the legislator assumes that, in principle, the participants in the proceedings are equally curious in its result and that the decision of the court confers legal protection on each participant. Therefore, he who incurred the costs of judicial or procedural replacement will not be reimbursed by another participant, but is not obliged to reimburse the costs incurred by another associate (so: Bodio Joanna, Demendecki Tomasz, Jakubecki Andrzej, Marcewicz Olimpia, Telenga Przemysław, Wójcik Mariusz in: Commentary on Art. 520 k.p.c., LEX/el. 2010; ultimate Court in its decision of 9 December 1999, III CKN 497/98, OSNC 2000, No. 6, item 116). specified a position shall be justified by the independency and autonomy of the participation of each participant.

There is no question that in cases of division of common property, there may be a conflict of interest between the participants, but even then, the application of Article 520(2) or (3) of the Code is simply a right, not an work of the Court of First Instance (yes: order of the ultimate Court of 25 July 1960, I CR 650/60; J. Górowski, ruling on the costs of non-trial proceedings in: Aurea prixis, aurea theoria. Memorial Book in Honor of Prof. T. Ereciński, Volume I, 2011, pp. 175-176). In any event, account should besides be taken of the specificity of the non-trial procedure and the request to guarantee that the cost settlement corresponds to the appropriateness (yes: A. Z., J. B., Reimbursement of costs of non-trial proceedings, Palestra 7/8/95, pp. 59, 61).

In this case, it should besides be borne in head that the applicants, erstwhile buying shares in a property which has another co-owners, agreed to the apparent complications involved, even assuming the request to settle possible litigation.

In this regard, it should besides be borne in head that, erstwhile the applicants purchased shares in a real property that had another co-owners, they agreed to the apparent complications associated with this, even assuming the request to settle possible litigation (yes: the order of the territory Court for Łódź-Vidzew in Łódź of 15 September 2017, Ref. Act II Ns 2578/16).

In view of taking into account the appeal in its entirety, the territory Court, pursuant to Article 520 §3 of the General Court, ruled from applicants to the associate the costs of appeal proceedings, which consist of a charge on appeal – PLN 100 and the remuneration of its typical – PLN 240, in accordance with § 5(7) in accordance with § 10(1) point 1 of the Decree of the Minister of Justice of 22 October 2015 on the fees for legal proceedings (OJ 2015 1800, p. 1).

The territory Court of Krakow in its decision of 14 December 2016 Ref. Act II Ca 2173/16 He pointed out that the remuneration of the proxy is determined in accordance with Paragraph 5(7) (cases relating to the usage of a common thing or to the management of a common thing) of the Regulation of the Minister of Justice of 22 October 2015 on legal fees.

Distribution of immovable property for usage (quoad usum) and cassation complaint

As explained by the ultimate Court in its resolution of 29 November 2007, the signature of act III CZP 94/07, Article 206 k.c., which gives emergence to the right of each of the co-owners to share and to usage the common property to the degree that it is compatible with the co-ownership and usage of the goods by the another co-owners, refers to 1 way of having and enjoying the common thing, i.e. direct and common with the another co-owners of possession and usage of the full thing.

This provision, on the another hand, does not apply to the way in which a common property consisting of direct and exclusive possession and usage of a separate part of the item is held and utilized (division quoad usum). On the another hand, the Court of First Instance's request to divide the quoad with the sum of the common things is, in fact, that the Court of First Instance (in the absence of the consent of the owners) should search joint-ownership management activities. Consequently, the ultimate Court’s caselaw states that in cases of determination of the usage of common things, as well as the change of use, the cassation complaint shall not be entitled (yes: orders of the ultimate Court of 6 March 1997, I CZ 7/97, OSNC 1997 No. 8 item 111, dated 17 July 1997, III CZP 30/07, not publ., dated 17 December 1999, III CZ 157/99, not publ. and dated 18 July 2001, V CZ 102/01, not publ. Decision of the ultimate Court of 14 March 2017. Ref. act II CZ 160/16).

Example requests for real property breakdown to be utilized (quoad usum)

I decision for:

1. determining how the joint owners usage the property located in... ul...., by granting to a individual (...) the exclusive usage and usage of the following dwellings (dwelling No. ... with an area ....) and another than a residential area (...), located in a multi-family building located on the property ...

I decision for:

1. to find how to usage the built-in property located in (...) at ul. (...), the number of the game (...), with an area (...) ha for which the territory Court in (...) keeps the book an eternal number (...), so that:

• • A and B shall be entitled to exclusive use:
    • of a part of the property consisting of residential premises number (...) (floor) and number 1 (floor) in a bunk building, located in the northwest corner of the property (to date, to date) and a staircase leading from the garden to these apartments and to the premises number (...);
    • from a fenced garden located in the east corner of the property with 4 buildings located there, i.e. a ‘summer’ kitchen, a area for wood, a cell and a garage, (to date, in so far as so far); from 1 brick cell located in the east corner of a brick economical building located in the confederate part of the property, adjacent to a wooden building (to date, in so far as so far);

• • C and D. are entitled to exclusive use:
    • of a part of the property consisting of residential premises (...) (on the ground floor) in a brick ground level residential building located at ul. (...) in P., located in the northern part of the property, with adjacent gardens located on the south side of the building (to date, to date) excluding the corridor leading to the premises number (...);
    • from a fenced garden located in the south-western corner of the property with its economical premises (in the way so far, to date);
    • from 2 cells and the alleged "summer kitchen" located in the western part of the commercial ground level building located in the confederate part of the property, (as so-far as so-far as possible);
    • a building consisting of a brick part and a wooden building located in the south-eastern part of the property;

• • leaving the remaining part of the property for joint usage of participants of the procedure, the condition that, in the common part of the 1st place for parking the car will stay for A and B – right in front of the cherry tree, parallel to the ground level residential building and 1st place for parking the car for participants C and D – in front of a burrd garage located in the garden, under the flap, prohibiting the parking of more vehicles in the common part by any associate or its guests;

In addition to:

2. the commitments of Participants C and D to:

• the cuts of the roof of the wooden embankment, in the part in which the roof protrudes over the way leading to the A B cell 40 cm long from each corner, within 1 period of the date of the final judgment,

• closing the entrance gate and entry gate regular from 11:00 to 6:00;
• the removal of leaves which have fallen on the property for joint usage of participants from fruit trees — cherries — not little than erstwhile a period and the cutting of branches situated above the garden dedicated to exclusive usage of C and D
• cleaning up the debris, garbage and another items stored outside the economical buildings in the south-eastern part of the property, within 1 (one) period of the date of finalisation of the judgment,

(yes: order of the territory Court of Łódź of 31 December 2018, Ref. Act III Ca 1284/18).