Nowy Sącz - Historical building at Jagiellonian 5 housing a bookstore,
By KazimierzP / fotopolska.eu via Wikimedia
Wroclaw Market Square by Gitta Zahn (Flickr)
Tarnów - Krakowska st. near Plant by Andrzej Otrębski (own work) via Wikimedia
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
nationalization, expropriation and other forms of taking (such as
through adverse possession) can be
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
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.
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
laws were used in Poland to nationalize or expropriate properties, and
that these laws were further applied in different ways?
Thus, the ability to recover a particular property
greatly depends on:
A. Correct. In different parts of Poland different laws (more
precisely, different legal enactments, including laws, decrees,
their amendments, were used in various time periods to
nationalize or expropriate or otherwise take private property without
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repealed and therefore are considered “legal”.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
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
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.
- 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
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
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
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
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
Q. What else can invalidate
expropriation or nationalization of properties in
A. Many other factors can invalidate it. Each case must be regarded on
its own. The following are
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)
- Many of the post-war legal enactments considered properties
as abandoned, unless owners or their close family applied for “return
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
- In other cases we
discovered proof that heirs have a valid excuse for their ancestor's
possession in the post-war years, such as because the ancestor was a
minor at the
- 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
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
but make its recovery (or financial restitution) possible — for those
applicants who are willing
Q. What are the circumstances
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
Q. What types of legal errors
could invalidate expropriation or nationalization of property in
A. There are many types of such errors. We mentioned several of them
Another type of error, which can invalidate the expropriation
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
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
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
to file a claim and
present this evidence in court.
(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.”