Residential community

Pursuant to Article 6 of the Act of 24 June 1994 on Premises Ownership (i.e. Journal of Laws 2021, item 1048), the entirety of owners whose premises comprise a particular property, forms a housing community. When we buy a flat in a multi-unit building, we are both the sole owner of the flat and a co-owner in the share of the common property specified in the transfer of ownership agreement. The other owners, on the other hand, are the other flat owners in the building. Each flat owner has a certain percentage share in the common area, depending on the area of the flat purchased in relation to the area of all flats and units in the building.

A housing association may acquire rights and incur obligations, sue and be sued.

With the separation of the first residential unit in a multi-family residential building, a housing community is formed. With the separation of the first residential unit, the community property appears.

Pursuant to Article 3(2) of the Premises Ownership Act, the common property consists of the land and the parts of the building and the facilities which do not serve exclusively for the use of the owners of the premises.

This definition was referred to by the Supreme Court, which in its decision of 14.01.2009, IV CSK 247/08, LEX No 499583, stated that: "The concept of common property referred to in Article 3 of the 1994 Act on Ownership of Premises does not include only the land on which the building is located. The statement in Article 3(2) of that Act that the land constituting the common property should meet the requirements of the building plot and allow for the proper and rational use of the buildings clearly indicates that the concept of common property also refers to the relevant land constituting the surroundings of the building."

The common property consists of the land and the parts of the building(s) and fixtures which do not serve exclusively for the use of the owner of the premises. "Only those parts of the building and other fixtures which are not separate premises (residential or commercial) belonging to the owners of the separate premises and the existing owner of the property and which do not serve exclusively for the use of those owners by virtue of the premises belonging to them are included in the joint ownership of the owners of the separate premises and the existing owner of the property" (judgment of the Supreme Court of 2.12.1998, I CKN 903/97, OSNC 1999/6, item 113).

The common property will be everything except the separate premises. It will be the land on which the building is located, but also all parts of the building that do not serve the needs of the residents of individual premises. Common parts of the building will therefore usually be: roof, attic, lifts, staircases, corridors, car parks, playgrounds.

Defects in common parts in a building built by a developer

Defects in common parts can be that the developer did not build something. Defects can also be that something has been built but in an incorrect way, not in accordance with the art of construction. Finally, defects can consist of something not working. Examples of defects in common parts most often include a leaking roof, sinking paving stones, dampness, stains or mould on the walls, standing water on driveways, dingy doors.

Interests in the common property

Pursuant to Article 3(3) of the Law on the Ownership of Premises, the share of the owner of a separate premises in the joint property corresponds to the ratio of the usable area of the premises together with the area of the appurtenant premises to the total usable area of all the premises together with the appurtenant premises.

The share of the owner of self-contained, non-separated premises in the common property corresponds to the ratio of the usable area of these premises together with the area of the appurtenant premises to the total usable area of all the premises together with the appurtenant premises.

Who takes care of the common property?

Pursuant to Article 18(1) of the Act on Premises Ownership, owners of premises may, in the agreement on the establishment of separate ownership of premises or in an agreement concluded later in the form of a notarial deed, determine the manner of management of the joint property, and in particular may entrust the management to a natural or legal person.

The manner of management of the real estate thus established may be changed on the basis of a resolution of the owners of premises recorded by a notary public. This resolution constitutes the basis for entry in the land and mortgage register.

The management of the shared property can be entrusted to the developer or to another entity, such as a property management company.

as a rule, actions may be performed on behalf of a housing community by the management board alone, i.e. without the necessity for all owners of premises in the building to express their opinion in this respect. At the same time, the legislator, in Article 22 of the Act on Premises Ownership, has explicitly indicated the matters in which a resolution of the owners of premises expressing their consent to perform an activity and granting the management board a power of attorney to perform such an activity is required in order to make a decision.

Who can claim repairs to common parts from the developer?

It is understood that the owners of the premises who purchased them from the developer have claims against the developer relating both to defects in the separate premises but also to defects in the common property.

The claims of the owners of the individual flats arise directly from the contracts concluded by them with the developer, who undertook to construct the building in accordance with the rules of the construction trade, and then to establish and transfer to the purchasers the separate ownership of the premises located in that building. On this basis, it is the owners of the premises who purchased them from the developer who have contractual claims against the developer relating to defects in the premises, but also to defects in the common property. Consequently, neither the housing association nor the administrator of the property have the authority to require the developer to remedy the defects. .

From a practical point of view, however, it is important to bear in mind that fighting a developer alone may not be so effective. The developer has a different attitude knowing that several/several people are joining against him. This is because he often calculates that a single owner will not have enough resources and motivation to file a lawsuit in court.

If there are defects or faults on the common parts of the property, the developer's liability arises under the warranty for defects or under the principles of liability for damages. We will discuss the indicated issues in the following articles.

If you have a property-related question, please contact us: sekretariat@krpmk.pl