Warsaw street scene By Russell Yarwood (Flickr)
EFFORTS REQUIRED TO RECOVER PROPERTIES IN POLAND
Q. What kind of effort is
required to recover title to expropriated,
nationalized or otherwise taken property in Poland?
A. Overall, the recovery effort is comprised of two
- In Phase 1, research of family and property documents and
then a detailed legal analysis of prospects for recovery of relevant
assets. These tasks themselves require prerequisite actions.
- In order to prevent the
spending of considerable amounts and efforts to recover very modest
properties, we add another requirement. Namely, whenever it is not
abundantly clear up-front that the inherited property is worth the
recovery effort, we generate in Phase 1, a supported approximate
valuation of each target property.
- If the results of all the
foregoing work are favorable, in Phase 2, one must take legal steps in
Poland. This requires further prerequisite actions.
Q. Are there any exceptions
this two-step process?
A. Only in rare, clear or urgent cases — notably, Warsaw properties
covered by the 2015 Law are such cases.
The above logic defines our
approach to most other recovery projects.
Sometimes, things are plain up front:
- In some of cases it is
plain that the inherited assets are not worth the recovery effort.
other cases, it is plain up front that the inherited assets are
valuable and that the prospects for
their recovery are favorable. In the latter cases, the recovery process
accelerated by moving some of the activities normally performed in
Phase 2 into Phase 1.
Such is the situation concerning Warsaw properties,
particularly those covered by the 2015 Law — because of the high value
of Warsaw properties and the deadlines imposed by this law. See
Properties URGENTLY Looking for Heirs – Under the New Law
We believe that in all cases where up-front, the asset value
appears substantial it is wise to perform a
detailed legal analysis
as soon as the documents necessary for this have been accessed. In
where the prospects appear favorable from the outset, the purpose of
such a legal analysis
is not to determine if the recovery is feasible but to guide recovery
PREREQUISITES TO OBTAINING MOST
DOCUMENTS IN POLAND
Q. Are there any prerequisites
to doing such research in Poland?
A. There certainly are. Local requirements vary somewhat within
Poland, but in general one cannot not just walk in off the street and
ask for vital statistics records and the like, which
are less than 100 years old.
Only the most recent information on property ownership is publicly
available, in addition many street names and numbers have changed.
public information is of limited use to foreign heirs.
In Poland, the high majority of old records showing former
civic addresses and former owners do exist. They
are archived. So are old vital statistics records, population records
and so on.
However, access to them is restricted, due to privacy laws.
To gain access such records one must prove (with documents)
one’s Legal Interest.
Some years ago, it was enough to simply allege Legal Interest to gain
access to such records in Poland. Nowadays,
strong documentary proof is required.
Q. How can the American heir of a
Polish citizen, who died during the war or the
Holocaust, prove his legal interest in archived Polish documents, which
are protected by privacy laws?
A. Let us take the example of a female heir, American-born, whose
paternal grandfather owned properties in Poland, and died
there during WW2. His son, the heir’s father, was also born in
Poland. After the war he immigrated to America, married here and passed
away some years ago. The present heir is married. She uses her
The heir’s ancestry from her paternal grandfather can be proven
primarily through American documents. If she has her father’s Polish
birth certificate, it will show his place of birth and the name of his
father (heir’s paternal grandfather). If her father’s birth certificate
is not available, his US immigration records will show his place of
birth and the names of his father. Further, the heir’s own birth
certificate will show the name of her father (though possibly
Anglicized). Combined, the foregoing documents link the heir’s name at
birth with the name of her Polish grandfather. The link between the
heir’s present name and her name at birth can be made via her marriage
The heir must also prove that she inherits from her father, and that
father inherited from his own father. If the heir’s father made a
last will in
America, which names the heir as a beneficiary, then his will is likely
recognized in Poland. If her father died
(without leaving a will), then under the laws of the US State where he
lived, the heir as her father's daughter, is a statutory heir.
statutory inheritance under Polish law is used to show that the heir’s
father inherited from his own father.
Suppose, that this living heir also inherits in Poland from her
grandfather and that the heir’s mother was born not in Poland but in
France. Then in addition to the above-mentioned Polish and American
documents, French vital statistics records will also be needed — to
document changes of
names in the female line.
Q. Can simple photocopies of
such documents be used in Poland to prove
heir’s legal interest?
A. No. One must obtain official copies or official extracts of
these exemplified by the issuing authorities, and then certified via an
by the relevant US State or by another foreign country (France in the
example above). Subsequently, one must have such certified
documents officially translated into Polish (by a sworn translator
licensed by the Polish Ministry of Justice).
Q. Do such procedures also apply
when family documents come from other countries?
A. They do, though sometimes with modifications. For instance,
Canada does not issue apostilles. In order to use official Canadian
Poland, one must have them authenticated by the appropriate Canadian
and then legalized by a Polish Consulate in Canada.
Q. How can the American heir
obtain such official documents and arrange their Polish translations?
A. Typically, we prepare clients’ applications for such documents
and certifications in America, Canada and other countries. We also
translation in Poland by translators who are licensed by the Ministry
of Justice of Poland.
Q. What if the heir does not
have the old title documents (the deeds)?
A. In Poland, the entry in the official property register (księga wieczysta,
also called wykaz hipoteczny
or księga hipoteczna)
deed. With the proof of client’s Legal Interest we can access old
property registers and obtain a certified copy of the
Q. What if the heir does not
know the addresses of properties, which her legal predecessors owned
A. Through research in Poland, we frequently can locate those
Sometimes we engage local land surveyors or other knowledgeable persons
to help us perform these tasks.
In Poland, street names or civic numbers have often been changed since
the pre-war period, sometimes several times. As required, tracing such
changes to information in current property registers forms part of our
Recently, we located an additional commercial property, of which our
client was unaware. A pre-war business card, a shrewd guess and follow
up in the field led us to this property. Such discoveries will
happen for heirs of wealthy and/or large pre-war families.
As a rule, we also need to analyze the files (akta) attached to the old
property registers, to find who were the pre-war and/or early post-war
owners. This also is a part of our services. To repeat, one must prove
Legal Interest to access such records.
HOW WE STRUCTURE RECOVERY
Q. How are our property
recovery projects structured?
A. Except in special cases,
which require additional
investigation (e.g. when clients’ legal predecessors accepted an award
from the US Foreign Claims Settlement Commission or from similar bodies in other
nations), the clearly favorable cases mentioned above, and cases under
special legal deadlines, we
generally proceed in the two logical phases summarily described
Phase 1 and Phase 2.
We now describe these phases in detail.
PHASE 1 – RESEARCH AND
PREPARATION: Research, Approximate Valuation, Legal Analysis, Other
In Phase 1, we generate Proof of Heirs' Legal Interest, conduct
research and further document research, on location and in various
archives in Poland and as needed abroad. We generally need to research
vital statistics (civil status) records, property records, often old
court records also.
Sometimes more research is required in Phase 1. For instance, if the
project involves post-war Communist nationalization of the client’s
family business, and/or the operation of the client’s family business
for the benefit of Germany during the war, and a subsequent Polish
nationalization on the wrong assumption that the company was owned by
German nationals, then we also need to research pre-war and wartime tax
archives, industrial directories, etc.
Afterwards, and still in Phase 1, on the basis of documents we
gather, information we obtain from clients, and applicable Polish
law, our specialized attorneys prepare detailed written legal opinions
concerning the prospects for recovery of each relevant property.
Q. What are the end products of
A. In conclusion of Phase 1 we report to the clients
in writing (in English) for each property primarily
on two matters: 1) Our supported opinion concerning approximate
recoverable value of each property — when feasible at this stage we
also address the share recoverable for each living heir, and 2) Our
attorney’s supported legal opinion concerning the prospects for the
recovery of this property, and whether as physical recovery (in rem) or as financial
The effort required to carry out Phase 1 depends on a number of
factors, including the completeness of documents in client’s
possession, the need (if any) to explain inconsistencies or
variations in spelling of names of clients’ ancestors, the number of
properties inherited, whether they are in the same locality,
whether commercial enterprises are claimed, the number of heirs, their
family relationships, and certain other factors.
Q. Are our fees for Phase 1 capped?
A. Yes, they are, in both phases. When we
accept the project on a primarily hourly-fee
basis, our overall non-contingent fees are still capped in the
contract. When we accept the project on a primarily contingent fee
non-contingent fees are not only capped but are fixed in the contract.
In either case, we charge our out-of-pocket expenses at documented cost.
PHASE 2 – PROCEEDINGS AND
MONETIZATION: Obtaining the Balance of Documents, Proceedings and
Q. Is there a need to secure in
Phase 1 all of the documents required for actual proceedings?
A. No. Typically, only a portion of the
required for actual proceedings is required for Phase 1. For instance,
there may be siblings or cousins, who inherit shares in the same
heirs). Of course, their individual shares of inheritance must be
proven in proceedings, but it is generally
enough to demonstrate the
Legal Interest of one heir to gain access to restricted
documents required for Phase 1. In such cases, obtaining the balance of
documents can be deferred until Phase 2.
Q. What exactly is done in Phase 2?
A. In Phase 2, we conduct all
proceedings, which are required to recover property titles for clients;
and after recovery we monetize them. We also perform ancillary services
as required for the proceedings and monetization. In
some cases, the bulk of our compensation comes from monetization.
In some cases,
instead of selling properties,
we secure financial indemnity. This happens, for
instance, when a third-party erected a building on the property. This
also happens when
the local government, which expropriated an apartment building,
sold some of the individual apartments. It is the
took the property illegally, that is responsible for
compensating former owners or their heirs, not the subsequent buyer in
Q. What types of proceedings are
comprised in the recovery process?
A. Broadly speaking, the recovery process typically comprises the
- Proceedings to declare as deceased persons, who
perished in the Holocaust or went missing in WW2;
- (actual) Recovery Proceedings;
- Additional proceedings if required (e.g. proceedings to
recreate old property registers).
Facing these requirements squarely at the outset saves much
Proceedings to Declare
are required only when a death certificate cannot be produced. It
should be noted that in
Poland the succession of a person is opened on the day the person dies.
Proceedings to Declare Persons as Deceased are required concerning
former property owners, and sometimes their immediate heirs, who
perished or are missing — without a death certificate having been
Succession Proceedings are
required in Poland whenever Polish real estate is a part of the
deceased’s estate (even if the deceased
emigrated and died abroad). In fact, Polish succession proceedings
required concerning all legal predecessors of the present heirs — from
the persons who held
titles to relevant properties, through subsequent generations down to
It is rare that a pre-WW2 last will, which was not probated,
would be available in Poland. Thus, as a rule
statutory inheritance governs succession of persons who died in the
Holocaust or went missing in WW2.
Q. Are foreign last wills
recognized in Poland?
A. Generally, they are. Foreign last wills (American and other
non-Polish), which are valid in the jurisdiction where they were
are recognized in Poland (requiring authentication and translation, of
In the absence of last wills, statutory inheritance rules
apply, namely Polish statutory rules when the person last lived in
Poland, and foreign statutory rules when the person last lived in
another country. In America such statutory inheritance rules are
determined by State law, in Canada by Provincial law.
A matter to resolve with last wills written in some Common Law
jurisdictions, is the issue of trustees of the will. Polish law does
not recognize such trustees, but there are several ways of dealing with
this. In simple cases, the language of the will shows that the person
named as trustee is simply the executor of the will.
Q. Are successions in the
lateral line recognized in Poland?
A. Yes, they are, in fact, because of
Holocaust, other mass-murders such as at the end of the Warsaw
Uprising, and WW2 war losses, WW2-related lateral succession in Poland
far more common than in normal circumstances.
Notably, establishing the sequence, in which relatives had died is
crucial in succession cases. See Lateral Succession in the section The
Devil is in the Details below.
Recovery Proceedings are
required to reverse judgments by which
properties of clients’ families were expropriated in any form. If a
number of properties
was taken in one expropriation proceeding, then, as a rule, only one
recovery proceeding is required to attack that expropriation. Further
information about Recovery Proceedings is
in a separate section. See Getting it Back – Reversing Nationalization
Q. Where in Poland are relevant
A. As a rule, Proceedings to Declare as Deceased a person whose
regular residence was in Poland, are conducted in the judicial district
where that person last
resided in Poland.
Depending on certain factors, Succession Proceedings are
conducted in the judicial district where at least some relevant
Recovery Proceedings are conducted in the
districts where relevant properties are located.
Q. Are any proceedings, other
those named above, required for recovery?
A. Only on rare occasions, such as proceedings to recreate lost
statistics records or lost property register records. Such
proceedings are required when a relevant branch of respective archives
was destroyed in wartime. This is very rare, however.
Q. How are the recovered
A. After we obtain final
judgments awarding recovery to
our clients, their names are entered as owners into respective Property
Registers. This makes their ownership rights clear to prospective
buyers. After recovery of title, we obtain and present to clients
offers from third-parties to purchase their property rights, together
supported recommendations for dealing with such offers.
With us, clients
control over the price and payments they will receive for the recovered
assets. The transparency we provide is without equal. See Selling
The effort required to carry out Phase 2 depends on a number of
factors, including the complexity of succession proceedings, the
complexity of property related documents, the number of properties to
be recovered, whether they are in the same locality, whether they were
expropriated together, whether properties of commercial enterprises are
claimed, the number of heirs involved, the defenses put up by adverse
party and certain other factors.
our non-contingent fees are either capped or completely fixed by
agreement (see above).
THE DEVIL IS IN
THE DETAILS – MORE ABOUT DOCUMENTATION REQUIREMENTS
Oral Testimony and Affidavits.
Contrary to practice in English-speaking countries, in Poland
testimony weighs little compared to documents. Affidavits also carry
even less weight, unless they are detailed and supported by documents.
Changes In Spelling of Names.
We pay great attention to all changes in spelling of claimants’ and
their family members’ first and last names, because to secure
inheritance in Poland such changes must be fully explained and
documented — so as not to leave any doubt concerning the identity and
lineage of the claimant.
As a rule, the first line of defense against recovery claims,
is to say that claimants did not prove that they are the legal
successors of pre-war owners, or that they did not establish that they
inherit the share of the devisor’s estate, which they claim.
The changes or variations in spelling of first or last names could have
arisen anywhere: outside of Poland, in Poland, and partly in Poland and
partly outside of it.
For instance, the first names could have become Anglicized and /or
abbreviated and /or turned into a diminutive (Oskar became Oscar, Jan
became Johnny, Aleksander became Alex, and so on. Similar changes also
occurred in spelling of last names. To retain the sound of the “cz”
combination Polish of letters, the Anglicized spelling became “tch” or
“ch”. To retain the sound of the Polish letter “c”, the spelling became
“tz” or “ts”.
Often such changes became formal at the time of immigration or at the
time of taking citizenship in the new country. In such cases, we prove
identity by obtaining Immigration Records held by the respective
In some cases, the variations in the spelling of names arose already in
Poland before the war. We are particularly alive to potential problems
arising out of variants in Latin spelling of German and Jewish names.
Thus the German spelling of the last name Lipschütz became Polonized as
Lipschutz, Lipszuc or Lifszyc or Lipszyc. Later on, in America this
became Lipshitz. Before the war, the Jewish first name Pinches was
sometimes transcribed in Poland (in Latin letters) as Pinchas or
Pinkes, only to subsequently become Pinkus in America.
With few Jews left in Poland today, Polish officials are not aware that
“discrepancies” such as the above are simply permissible spelling
variants of the same name. To clarify such issues, sometimes we produce
expert linguistic opinions as part of the proof of the identity of
client’s legal predecessors.
“No Proof of Lineage” Defense.
The Defense, that the petitioner did not prove his lineage,
has defeated many Polish lawyers, who work for foreign claimants but
lack practical expertise required to obtain diverse foreign documents.
In fact, most Polish lawyers, who work in the property recovery field,
instruct their clients to obtain all the proof themselves. Such
approach simplifies the attorneys’ work, but not the progress of the
case. This may add greatly to the duration of a case and to the risk.
In some cases, a client’s family lived in several countries after the
war, before finally settling in one. Changes to spelling of names may
have accumulated on the way. Thus documents may have to be obtained
from all relevant countries, while clients are not familiar with
practices of various governments in such matters or with expert
opinions. We can solve clients’ problems in such matters.
In addition, often documents stored on old microfilms are poorly
legible, such as old Immigration Records. We know how to legally
enhance the legibility of such documents.
Moreover, it takes expertise to prove lineage when names have been
changed informally outside of Poland. Polish authorities are unaware
that informal name changes are legal in some countries. One of our
specialized attorneys had to go up to the Supreme Court of Poland to
have the Polish authorities accept that a documented informal change of
name, which was valid for use in England was also valid for Poland.
In addition, in the period shortly after the WW2, some female émigrés
from Poland “made themselves younger” in order to marry and/or to
immigrate into countries such as USA, Canada or Australia.
Sometimes, in English speaking countries, police forces on their own
“Anglicized” immigrants’ names. On other occasions, authorities in the
post-war D.P. Camps, in transit countries and in the final new country,
themselves misrecorded and /or misspelled identity related information.
Recently, we had to explain in Polish court a marriage certificate
issued in Israel in the 1950s, in which the bride’s date and month of
birth were recorded as 00 / 00 — an unthinkable official record in the
Polish administrative culture.
All such confusion should be fully
and pro-actively cleared up for Polish courts and authorities —
and this must be done in a way that does not hurt the claimant's
Concerns of Foreign Issuing Authorities.
Nowadays, with increasingly strict privacy laws in various countries
(also to protect against identity theft and for national security
reasons), the obtaining of authenticated copies of 20th century family
documents is more and more difficult.
Indeed, authorities in many countries (e.g. Canada) reserve now the
right to refuse to issue documents concerning recent ancestry or to
authenticate them — if they suspect these documents are requested for
an improper purpose. The answer, is to anticipate such concerns of
relevant authorities, and to make a good first impression on them.
“Abandonment Of Assets” Defense.
A very important defense used by Polish authorities against foreign
claimants (against Polish claimants, too), is to say that their legal
predecessors abandoned family assets by not filing prescribed
applications to preserve their rights in the post-war period.
In some such cases, our research uncovered that grandparents had in
fact filed such applications, while their grandchildren — our clients —
were unaware of this. Such applications can be found in Polish
archives. When located and invoked, they can defeat expropriations
based on allegations of abandonment / adverse possession. We have won
cases due to our uncovering such evidence.
In another case, we located proof that the client is excused from
failure to file the prescribed applications, because at the relevant
time she was a minor (under age).
Sequence of Family Deaths. In Poland, the succession of
the deceased is open on the date this person (the devisor) died.
Statutory succession of the devisor goes to his close relatives who
survived him at the time. This is particularly important for lateral
In Polish succession law, family deaths in the Holocaust and in general
in WW2, are not treated as single event, but as a series of events
(i.e. as in peacetime). On the day of each such death, the then
surviving heirs (immediate heirs) inherit the deceased’s estate. If
they themselves died while the war was still going on, their estates
(now including parts of the original devisor’s estate) were inherited
by their immediate heirs.
In some cases, it may assist lateral succession if the court
rules that the devisor and his children and / or spouse died
simultaneously. Evidence must be provided to the court to support such
Circle Of Inheritance.
Currently Polish inheritance law is harmonized with European Union
inheritance laws. However, inheritance law applicable to succession of
Polish citizens, who died in Poland before WW2, during WW2, and for
many years afterwards, is not today’s law but the old law in force when
the devisors died.
Under that old law, the family Circle Of Inheritance is not as wide as
it is in some Western countries, nor as wide as it is in Poland today.
In practice, in Poland statutory lateral succession of that period is
primarily the inheritance of estates of siblings, aunts and uncles, and
great-aunts and great-uncles, but not the estates of cousins. Again,
the sequence of family deaths matters.
When there are no statutory or testamentary heirs, the State Treasury
of Poland inherits.
For all these reasons, it is important to establish the sequence of
family deaths. This is one of our services.
(opens new window)
(10): The data
included in current Polish property registers is available online.
Typically, current property registers include in summary
form, information on changes of ownership since the 1990s. In a high
majority of cases this does not say who
the pre-expropriation owners were. To obtain this information, archived
registers and associated files must be accessed. Detailed proof of
Legal Interest is required to gain access to these documents.
Since the late 1950s Poland entered into treaties
with some countries, whereby Poland made limited funds available to
each of them,
to "compensate" their citizens for assets taken in the early
post-war years by
the Communist government of Poland, without compensation.
In the USA, such funds were
administered by the US Foreign Claims Settlement Commission (“FCSC”), which adjudicated claims filed by
American citizens during the 1960s. Claimants’ participation in this
program was voluntary. Some of the dispossessed owners and
heirs filed claims with FCSC, others did not. Yet others filed claims
but refused to
sign over their rights in return for paltry awards.
The opinion of a senior
attorney working with us in Poland is that, under Polish law, the
releases which the 1960s claimants have signed in favor of Poland, are
binding but only to the extent of the language of these releases.
In addition, the FCSC states
that based on funds, which Poland then provided, the FCSC paid 33% of
adjudicated value of claims. Originally, $100 million were promised,
but in the end Poland provided only $40 million. We asked the FCSC if
a position paper on the rights of claimants who received the reduced
amounts. The FCSC replied that it does not.
It should be noted that the
claimants had the full burden of proof. Few were able to hire an
attorney or an investigator in Poland to obtain the required proof.
Thus in the 1960s, many did not fully discharge their burden of proof.
For this reason, in the 1960s
and 1970s many claimants did not receive compensation for their claims
or for some parts of them. For instance, claimants who inherited shares
in family properties from several close relatives, who perished in the
Holocaust or disappeared in the Soviet Union during WW2, often received
an award only for the shares of parents but not for shares of uncles,
aunts and siblings.
In general, those claims for which no releases were issued,
may still be pursued.
To obtain further information
on present rights of individual
claimants, whose legal predecessors received
payments through the FCSC, it is necessary to evaluate information in
old FCSC files (held in US Archives, in College Park, MD) and sometimes
also in counterpart
files held in
State Archives of Poland.