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Other Methods of Enforcement
1. Enforcement against a fractional part Enforcement may be directed to a debtor's share in co-ownership of a real estate. However, this method of enforcement shall not be applied in situations, when the real estate is not subject to co-ownership in fractional parts but to joint co-ownership, i.e. not characterized by separated shares, as for instance in the case of a joint marital property. Provisions related to enforcement against a real estate are appropriately applied to enforcement against a fractional part of a real estate. The differences which are provided for in the provisions for this type of enforcement refer to: seizure, management, description and evaluation and effects of enforcement sales. The enforcement officer notifies not only the debtor and the creditor but also the remaining co-owners about the seizure of the fractional part of a real estate. This is justified by the fact that during enforcement (in particular after a second unsuccessful auction) they are entitled to take over ownership of this fractional part of the real estate. In case they submit such a motion they become participants of the proceedings. As only a fractional part of a real estate is subject to seizure, if during this enforcement an administrator is appointed, he acts exclusively within the limit of the debtor, co-owner's entitlement. In other words, the object of administration is made up exclusively of the rights which the debtor can enjoy. As the co-owners' shares are ideal parts and they do not include identified objects, it is the whole real estate that is subject to description and evaluation. The evaluation sum of the fractional part of the real estate constitutes a part of the sum which corresponds to the share of the co-owner in this real estate. The same amount is given in the public notice of the auction, and the amount of deposit and the starting price are calculated on this sum. The effect of enforcement sales on a real estate's burdens is different in this type of enforcement than that in enforcement against a real estate. Mortgages which were entered into before co-ownership was created and thus burden the shares of all co-owners, shall not be impaired by the court's decision which adjudicates the fractional property of the real estate part. However, these mortgages are not imputed to the purchase price (similarly, it is assumed that earlier, during evaluation, the real estate value was not reduced by the amount of any mortgages). Similarly, when speaking about other burdens of a fractional part of a real estate, other than mortgages, they are maintained in force in the case that they were established before co-ownership was created and are not deducted from the purchase price. This is the case even when they were not revealed in the Land and Mortgage Register or in a Collection of Documents, if they were notified, at the latest three days before the auction date. 2. Enforcement against perpetual usufruct Provisions on enforcement against real estates are correspondingly applied to enforcement against perpetual usufruct. The differences established in the provisions for this type of enforcement refer to: seizure, protocol on description and evaluation, effects of adjudication of perpetual usufruct, suspension and discontinuance of the procedure. Land which is owned by the Treasury of State or territorial self-government units or else by unions of territorial government units may be object of perpetual usufruct. Discussing enforcement directed against the perpetual usufruct right to which the debtor is entitled, firstly, it is necessary to define the object of this enforcement. In accordance with the C.C. (art. 235), buildings and other facilities both erected on the land by a perpetual usufructor or purchased by him while concluding a contract of perpetual usufruct are his property. This property is treated as a right linked to perpetual usufruct. Therefrom comes the fact that the seizure includes not only perpetual usufruct of land but also buildings together with appurtenances built on this land and belonging to the perpetual usufructor. The appurtenances include: 1) movables which are the property of the perpetual usufructor and which are necessary to use the land in accordance with its designation, if they are actually linked with the land corresponding to its designation, 2) building appurtenances which make up the property of the perpetual usufructor, 3) rights which arise from an insurance contract for objects subject to seizure, and claims already due arising from these contracts. The seizure also includes structures which were erected and plants which were first planted after the seizure, similarly to movables which became land or building appurtenances first after the seizure, and rights arising from insurance contracts which were concluded after the seizure. The provisions distinctly state that the body which concluded the usufruct contract is a participant of the enforcement procedure within which enforcement is directed against perpetual usufruct (art. 922 of the C.C.P.). Thus, beside the debtor and creditor, the enforcement officer shall also notify the real estate owner on the seizure of perpetual usufruct, and by the same, the competent body of government administration or self-government unit or else union of self-government units. While enforcing with the use of this method, the Protocol of Description and Evaluation shall contain additional elements together with those required in the case of real estate description and evaluation. As perpetual usufruct is a right temporarily limited, it is necessary to identify the ending date of the perpetual usufruct. Then, the manner of land use by the perpetual usufructor must be stated as identified in the Land and Mortgage Register. The perpetual usufruct contract may be dissolved, if the perpetual usufructor uses the land in a manner obviously contradictory to its designation defined in the contract (art. 240 of the C.C.). If the competent body filed a motion in court with a request to terminate perpetual usufruct contract, and parallel, there is a court enforcement procedure against perpetual usufruct conducted, in such a situation the enforcement proceedings are obligatorily suspended. These proceedings may be restarted at the creditor's request, if the court does not adjudicate the contract be dissolved. If, however, the contract is terminated, starting from this moment, there is no enforcement object. Therefore, the enforcement proceedings shall have to be discontinued. As the object of the described enforcement is not the real estate itself, then the limited real rights established thereupon before its transfer into perpetual usufruct cannot be infringed. In this area, the impact of property adjudication to the purchaser is different than that while adjudicating the property of a real estate.
3. Enforcement against co-operative By the time the 15th December 2000 Law on Housing Co-operatives (Journal of Laws No 4 of 2001, item 27) came into force, the separate property of flats in housing co-operatives was a legal form rarely encountered in practice. Housing co-operatives assigned to their members, who had paid up the so-called building contributions, flats in buildings making up their property as a co-operative property right to a flat (art. 213 of the Co-operative Law, unified text, Journal of Laws No 54 of 1995, item 288 as amended). The co-operative property right to housing premises (a flat) is not the same as a property right but it constitutes a limited right to a thing, and furthermore, it may be assigned exclusively to a member of the co-operative. It may be an object of dispositions and inheritance. This right is also subject to enforcement (art. 223 § 1 of the Co-operative Law). It shall be distinguished from a co-operative tenant's right to a flat within which a co-operative member obtains a flat for use, having a status similar to the status of a tenant. The latter right is not transferable, and it does not pass to heirs and cannot be an object of enforcement (art. 9 subparagraph 3 of the Law on Housing Co-operatives). The provisions on enforcement against real estates (art. 230 of the Co-operative Law) are correspondingly applied to the property right to a flat. With the assumption that this right can be assigned exclusively to a co-operative member, there is a direct principle expressed in the co-operative law that the efficiency of this right transfer depends upon the membership of the co-operative (art. 223 § 2 of the Co-operative Law) being granted to the acquirer. The same principle is in force when this right is acquired in the framework of enforcement, and the difference of features of this enforcement procedure is primarily linked thereto when compared to enforcement against a real estate. The allocation of the aforementioned right to the auction bidder cannot take place if he is not accepted as a member of the co-operative (art. 230 § 1 of the Co-operative Law). The co-operative cannot refuse to accept the bidder as its member, if he corresponds to the requirements of its statutes (art. 224 of the Co-operative Law). Such an acquirer has the right to request being accepted as a member even by way of initiating a court action. If, as a result he does not become a member, he has the right to withdraw from participation in the auction and to withdraw the auction deposit (art. 230 § 1 the second sentence of the Co-operative Law). In the aforementioned enforcement, there is a particular provision stipulating that if nobody participated in the first auction, then already at that moment the mortgage creditor has the right to take over this entitlement. He may take it over for a price not lower than three fourths of the evaluation sum, whereby his request for taking it over shall be submitted within one week following the auction. Such a creditor does not submit a deposit (art. 982 § 3 of the C.C.P.). Despite the lack of a distinct provision on this matter, pursuant to the mentioned art. 223 § 2 of the Co-operative Law, it is necessary to assume that the said condition with reference to gaining membership by the acquirer is also applied in this case. Therefore, a mortgage creditor who is entitled to take over this right which is confirmed by the court decision on knocking down shall request the co-operative admit it as its member. Only when he has become a co-operative member, is it possible to allocate the right to him. It is also admissible for a creditor, being a legal person to take over the right. In this case, the allocation of the right is not dependent on any condition. After the right has been taken over by the legal person, it expires in six months. However, it shall not expire when before the expiry of the above-mentioned deadline, this person indicates a physical person to whom it transferred the rights, and this physical person, in turn, shall submit a membership declaration. However, if the co-operative does not admit this physical person as its member, this right becomes extinct when the refusal of admittance is final, and at the same time the aforementioned six month period elapsed. There is still another possibility that such an acquirer sues the co-operative demanding it admit him as a member. He has such a remedy within three months following the co-operative's service of the final refusal to admit him (art. 230 § 2 in conjunction with art. 227 § 1 of the Co-operative Law). If the debtor has not paid the whole building contribution to the co-operative, the co-operative has a claim arising from this title. In the provisions regarding the plan of division of the enforcement sum, such receivables related to the right which is the object of enforcement are treated as privileged. They are satisfied before the amount secured on the mortgage right (art. 1025 § 4 of the C.C.P. ). Other limited rights in things, such as the right to a detached house in a housing co-operative (art. 232 § 4 in conjunction with art. 223 § 1 of the Co-operative Law) and the co-operative right to business premises (art. 223 § 1 of the Co-operative Law in conjunction with art. 38 of the Law on Housing Co-operatives) are also subject to enforcement. The same provisions which deal with co-operative property right to a flat are applied thereto. Therefore, the above mentioned comments are also applied thereto, however, with the changes arising from the fact that a co-operative right to business premises may be assigned not only to co-operative members who are physical persons, but also to members who are legal persons. 4. Enforcement against sea vessels In the case of enforcement against sea vessels, there is a distinction between enforcement against ships entered into the register of ships and those which are not included therein. A ship which belongs to a Polish subject shall be entered into the register of ships. A ship may be released from this duty. However, this does not refer to those which carry out international navigation. Both ships entered into the Polish register of ships and those entered into foreign registers are subject to enforcement in accordance with provisions on enforcement against real estates (despite the fact that a ship in its nature is a movable). When compared with enforcement against a real estate, there are differences which arise from provisions, and they relate to: venue of enforcement officer, formal conditions for a request to initiate enforcement, seizure, notification on enforcement being initiated, notices on auction. These differences shall be discussed below. As to the venue of enforcement body, the enforcement mentioned is in the venue of an enforcement officer of the court in whose region the ship is physically present at the moment when the enforcement is initiated. However, if the object of enforcement is a share in the ship, then it belongs to an enforcement officer of the court in whose region the native port of the ship is located. In its request for enforcement initiation, the creditor shall state if the ship is entered into the register of ships, as well as enclose the evidence of its being entered into the register, as starting from the very beginning of these proceedings it must be known according to which provisions the enforcement is to be conducted. The moment of seizure is not the moment when the debtor is served a summons to pay, but it is the seizure order issued by the enforcement officer that is decisive in this case. Apart from the creditor, the debtor and also the ship-owner shall be notified on the seizure when the latter is not the debtor, as well as the carrier who is not a ship-owner, persons whose claims are secured on sea mortgage on the ship, and the ship insuring company. In addition, the enforcement officer is obliged to address to the body which conducts the register of ships a request for making a mention in the register on enforcement being initiated. Contrary to the enforcement against real estate, the enforcement officer is also obliged to notify the public on enforcement being initiated. Such notices are hung in the court building and in a journal popular in a given locality. It is obligatory to establish guard on the seized vessel which is effected in accordance with the provisions on enforcement against movables. By the same, provisions on a real estate management are not applied. The time between the notice on the auction being hung in the court building and the auction itself is shorter than in the case of enforcement against a real estate, and it is two weeks. Advertisement on auction in a journal popular in a given locality is obligatory. In addition, the enforcement officer sends the notice on auction to local bodies of maritime administration, competent for the port in which the ship is docked and to the native port of the ship to be hung therein (art. 1019 of the C.C.P.). Enforcement against ships which are not entered into the register of ships takes place in accordance with the provisions on enforcement against movables. This also refers to the situation in which there is no entry of the ship in the register of ships although the given ship is subject to such a duty. Marek Mrówczyński
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Exchange rates of 2010-07-29
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Other Methods of Enforcement
Copyright by Currenda & WMKiW, Sopot 2006 |
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