Abstract

From the Problems of a Transformation from Perpetual Usufruct to Property Right

Summary

An analysis of a normative state and a practice of a conduct of legal transactions with reference to legal regulations of perpetual usufruct and also of a transformation of this right into property right permits a statement that in Polish Law there came into being a system of norms completely unintelligible, excessively complicated, internally contradictory, bureaucratic and too costly for the national budget, local governments and perpetual usufructuaries. The primary cause of the status quo was the lack of a clearly defined objective at which the legislator was aiming. Expediency was implemented at the expense of system principles. It led to interventions of the Constitutional Tribunal. The legislator hedged, made successive provisions not only internally contradictory but also arousing new doubts as to their compliance with the Constitution of the Republic of Poland.

It seems that the only rational solution of the status quo is to forego the right of perpetual usufruct by enfranchising perpetual usufructuaries. However, it has to be a regulation based on foundations completely different than these hitherto existing.

The transformation should cover all perpetual usufructuaries, regardless of the mode and the time of their acquisition of this right, and should ensue ex lege. This would result in a significant simplification of a construction of the transformation. Given a tremendous interest of perpetual usufructuaries in the transformation, it would significantly reduce the amount of office labour and attendant costs incurred by them. At the same time affranchisement would become universal. Further simplification and lowering costs of transformation would require that entries in mortgage registers should be evidenced ex officio at the time of the first transaction relating to a given mortgage register. Since affranchisement in a discussed mode would cover all perpetual usufructuaries ex lege, it would be obvious that persons evidenced in a register as perpetual usufructuaries are property owners until a new entry is made.

There should be no exception from the basic principle of universality of affranchisement of perpetual usufructuaries. It has to be assumed that land charged with perpetual usufruct has not been indispensable for the hitherto existing owner (the State Treasury, local government units) in order to perform their basic tasks. In special cases these units may employ an expropriation.

The most difficult problem of the hitherto existing regulations faced has been the question of compensation due to hitherto owners from the fact of a loss of ownership as a result of a transformation. I propose to regulate these settlements in such a way that an enfranchised perpetual usufructuary should be charged with such performances as he was charged with hitherto as a perpetual usufructuary. In other words: he would be charged with an obligation to pay annuity during a period for which he has been granted, the right to perpetual usufruct, transformed into property right. In exchange for a performance, which in any case he would have to provide as per agreement, the former perpetual usufructuary would obtain a better right - property right. According to the proposition under discussion, the regulation would have a system character, in a long-term it would allow to effect such a reform of public finances that hitherto existing owners could perform their assigned tasks financing them from performances of a tribute type, and not from perpetual usufruct. One would have to consider the advisability of maintaining in force the principles of determining an amount of an annuity. It seems that instead of the current system (expensive and inefficient) there should be introduced a principle of a yearly raising of annuity according to a rate of inflation.

It’s common knowledge that appreciable part of immovables of the State Treasury and municipal immovables originate from different kinds of „expropriations” carried out in the period of PRL [People’s Republic of Poland]. To secure claims of former owners I propose to create a special fund, meant for indemnities satisfying these claims, from obligatory written off amounts gained from receipts from former perpetual usufructuaries.