Alex Wolf

&

Associates

LLC

Recovery of Nationalized and Expropriated Property in Poland

Contact:  Alex Wolf                e-mail:  awolf@alex-wolf.com                Telephone:  302-351-6200
 
building on Zabkowska street
Warsaw - building on Ząbkowska street by Hiuppo (own work) via Wikimedia Commons click to view license


Warsaw street scene by Russell Yarwood
Warsaw street scene By Russell Yarwood (Flickr) click to view license






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 Phases:

  • 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 to 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.
  • In 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 can be 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 Warsaw 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 cases 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 efforts.

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. Thus, this 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 husband’s last name.

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 certificate.

The heir must also prove that she inherits from her father, and that her father inherited from his own father. If the heir’s father made a valid last will in America, which names the heir as a beneficiary, then his will is likely to be recognized in Poland. If her father died intestate (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. Similarly, 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 maternal 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 the heir’s legal interest?
A. No. One must obtain official copies or official extracts of documents, have these exemplified by the issuing authorities, and then certified via an apostille(9) issued 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 documents in Poland, one must have them authenticated by the appropriate Canadian authority 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 arrange their 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) constitutes the deed. With the proof of client’s Legal Interest we can access old property registers and obtain a certified copy of the old title(10).

Q. What if the heir does not know the addresses of properties, which her legal predecessors owned in Poland?
A. Through research in Poland, we frequently can locate those addresses. 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 services.

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 sometimes 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 PROJECTS

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(11) 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 above:  Phase 1 and Phase 2.

We now describe these phases in detail.

PHASE 1 – RESEARCH AND PREPARATION: Research, Approximate Valuation, Legal Analysis, Other Preparations

In Phase 1, we generate Proof of Heirs' Legal Interest, conduct property 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 Phase 1?
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 restitution.

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 basis, our 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 Monetization

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 documents required for actual proceedings is required for Phase 1. For instance, there may be siblings or cousins, who inherit shares in the same property (joint 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 government which took the property illegally, that is responsible for compensating former owners or their heirs, not the subsequent buyer in good faith.

Q. What types of proceedings are comprised in the recovery process?
A. Broadly speaking, the recovery process typically comprises the following proceedings:

  • Proceedings to declare as deceased persons, who perished in the Holocaust or went missing in WW2;
  • Succession proceedings;
  • (actual) Recovery Proceedings;
  • Additional proceedings if required (e.g. proceedings to recreate old property registers).

Facing these requirements squarely at the outset saves much time and expense.

Proceedings to Declare Persons as Deceased 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 issued.

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 are required concerning all legal predecessors of the present heirs — from the persons who held titles to relevant properties, through subsequent generations down to present heirs.

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 prepared, are recognized in Poland (requiring authentication and translation, of course).

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 the Holocaust, other mass-murders such as at the end of the Warsaw Uprising, and WW2 war losses, WW2-related lateral succession in Poland is 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 or Expropriation

Q. Where in Poland are relevant proceedings conducted?
A. As a rule, Proceedings to Declare as Deceased a person whose last 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 generally conducted in the judicial district where at least some relevant properties are located.

Recovery Proceedings are conducted in the judicial 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 vital 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 properties monetized?
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 with our supported recommendations for dealing with such offers.

With us, clients retain control over the price and payments they will receive for the recovered assets. The transparency we provide is without equal. See Selling Recovered Property.

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.

Nevertheless, 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 governments.

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 credibility.

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).

Lateral Succession.
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 succession.

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 a finding.
 
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.

Footnotes
(9): http://en.wikipedia.org/wiki/Apostille_Convention (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 old property registers and associated files must be accessed. Detailed proof of Legal Interest is required to gain access to these documents.

(11): 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 the adjudicated value of claims. Originally, $100 million were promised, but in the end Poland provided only $40 million. We asked the FCSC if it has 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.



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