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 at Jagiellonian 5 in Nowy Sącz
Nowy Sącz - Historical building at Jagiellonian 5 housing a bookstore, By KazimierzP / fotopolska.eu via Wikimedia Commons click to view license

Wroclaw Market Square by by Gitta Zahn
Wroclaw Market Square by Gitta Zahn (Flickr)
click to view license



Warsaw, Jerusalem St. by Alina Zienowicz.
Warsaw, Jerusalem St. by Alina Zienowicz (Ala z on wikipedia) via Wikimedia Commons click to view license



Tarnów - Krakowska street near the Planty
Tarnów - Krakowska st. near Plant by Andrzej Otrębski (own work) via Wikimedia Commons click to view license





GETTING IT BACK – REVERSING NATIONALIZATION OR EXPROPRIATION

Q. Were all expropriated or nationalized properties in Poland taken from their former owners in the same way?
A. No, they were not, and the differences can be decisive. It is the fine points of the “process of taking” that determine which cases of nationalization, expropriation and other forms of taking (such as through adverse possession) can be reversed.

Presently, under Polish law, many properties are not recoverable by former owners or their heirs — BUT others still can be recovered. The difference lies in the “fine print”.

Q. What determines if a particular property is recoverable?
A. The ability to recover (including via compensation) a particular property depends on many factors. The starting point, in each case, is the requirement to prove prior ownership by claimant's legal predecessors and to prove inheritance from them. Fortunately, most property registers and civil status registers (vital statistics registers) in Poland survived the war(14). In addition, the ability to recover depends on the specific laws that were used to take a particular property and on whether they were applied in a legal way.

Q. Does this mean that various laws were used in Poland to nationalize or expropriate properties, and that these laws were further applied in different ways?
A. Correct. In different parts of Poland different laws (more precisely, different legal enactments, including laws, decrees, regulations) and their amendments, were used in various time periods to nationalize or expropriate or otherwise take private property without compensation.

For instance, in the Warsaw area, the bulk of the nationalization was carried out under a special law concerning Warsaw and area — the so-called Bierut Decrees.

These legal enactments were generally confiscations without compensation, but were not repealed and therefore are considered “legal”. But the story does not end here.

At first, still under Communism, these enactments ceased to be used going forward. Later on, certain parts of them were declared illegal by one of the high courts of Poland (the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal). In addition, once Communism fell, the courts gradually became receptive to the arguments that in specific cases, these enactments were applied in an illegal way.

Thus, the ability to recover a particular property greatly depends on:
  • which specific enactments were used take it away from its owners,
  • whether relevant enactments were since declared illegal, and
  • whether the procedure, via which a particular property was taken, was itself legal or not.

Q. How does the procedure in which these “legal” confiscations were applied affect one's ability to recover a property?
A. The Communist regime felt all-powerful (which indeed it was at that time) and often applied its own laws in a sloppy manner, and today (after the fall of Communism) this can invalidate the expropriation or nationalization. For instance, some properties were taken away without due notice to the owner.

Q. Would due notice have prevented these nationalizations or expropriations?
A. As a rule, no. Under the Communist regime, absence of a due notice made little difference and that is why not infrequently, the Communist authorities did not bother to cross the t's and dot the i's, while taking properties own by individuals or companies.

And for decades this did not matter — while Communism lasted. It fell in Poland in 1989. Afterwards, Polish courts have repeatedly ruled that material defects in an expropriation or nationalization proceeding, such as the failure to serve the owner with due notice, is a basis for invalidating the contested expropriation proceeding. 

Q. What else can invalidate an expropriation or nationalization of properties in Poland?
A. Many other factors can invalidate it. Each case must be regarded on its own. The following are only examples:

  • We recovered a property by discovering that the persons who took it (by declaring in court that they took care of an abandoned property) were the family to whom the family of our clients gave power of attorney to manage the property when they left Poland shortly after the war. With this hint, we found the relevant notarized power of attorney in Polish State Archives.
  • In parts of Poland, to this day not all properties of pre-war owners were expropriated or nationalized, even though in the meanwhile the government uses them free of charge. Such, for instance, is the status of some properties in the Kraków, Kielce and Lower Silesia (Dolny Śląsk) regions.
  • Many of the post-war legal enactments considered properties as abandoned, unless owners or their close family applied for “return of possession” of these properties (succession proceedings were left for the future). More often than is known outside Poland, some family member made such an application, and thereby preserved the family’s rights under Polish law. We discovered such evidence in several cases, in which the heirs were not aware of it. We won cases based on such evidence, because it defeated allegations of abandonment and adverse possession.
  • In other cases we discovered proof that heirs have a valid excuse for their ancestor's failure to apply for possession in the post-war years, such as because the ancestor was a minor at the relevant time. 
  • As another example, on June 13, 2011, Poland’s Constitutional Tribunal (Trybunał Konstytucyjny) ruled that the nationalization of multi-dwelling and commercial properties in the Warsaw area on the basis of the Bierut Decrees was unconstitutional.
  • Polish courts have ruled that the misspelling of the owner’s name, or the mailing of the notice to the wrong address, constitutes serious defects of notice.
  • Under Polish law such evidence or general judgments do not automatically reverse the nationalization or expropriation of a particular property, but make its recovery (or financial restitution) possible — for those applicants who are willing to take legal steps. 

Q. What are the circumstances in which a recovery or restitution in Poland is still possible?
A. In general terms, under Polish law, recovery or restitution of expropriated or nationalized property is still possible when the process of its confiscation comprised serious legal errors. 

Q. What types of legal errors could invalidate expropriation or nationalization of property in Poland?
A. There are many types of such errors. We mentioned several of them above. 

Another type of error, which can invalidate the expropriation or nationalization proceeding, is wrong classification of the property by the Communist authorities in that proceeding, typically a misclassification of a small company as a larger enterprise, which subjected it to being taken over by the state.

Concerning shares in expropriated or nationalized companies, the passage of time has made claims for loss of enterprise profit very difficult to prove. In a high majority of the cases, for all practical purposes, today only the real estate of companies is potentially recoverable. Fortunately for claimants, Polish real estate has become very valuable.

Expropriation and nationalization proceedings involving all of the above-mentioned types of errors have been reversed by Polish Courts, but only as a result of litigation initiated by claimants.

Q. How can one prove that reversible errors were made in proceedings by which the properties were taken?
A. This takes a two-step process. The evidence of such errors must be located, generally by researching various archives in Poland, and by taking into account the information provided by the former owners or their heirs. The other step is to file a claim and present this evidence in court.

Footnotes
(14): According to JewishGen:
“Poland's excellent system of civil registration of vital records (birth, marriage and death records) is the best in Eastern Europe — better than most U.S. States. In what became the Kingdom of Poland (Królestwo Polskie = Congress Poland = "Russian Poland"), civil registration began in 1808, and most of the records survive to this day. These documents are extremely informative — for example, a birth registration usually contains the names and ages of both parents, the date, time and place of birth, the father's occupation, and often both grandfathers' given names.”


Blue Tower Square Bank in Warsaw.
Blue Tower Square Bank in Warsaw By Robert Parma (Own work), via Wikimedia Commons click to view license
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