CASE OF SCHIRMER v. POLAND
Violation of P1-1;Non-pecuniary damage - financial award
Nicolas Bratza
6. In 1996 the applicant filed with the Warsaw District Court (sąd rejonowy) an action in which she requested the eviction of Ms J. from a flat she owned. She also claimed payment of overdue rent, in the amount of 4,371.17 Polish zlotys (PLN). She submitted that she had given notice of termination of the lease contract after J's recurrent failure to pay the rent on time. J. had been occupying the flat on the basis of an administrative decision, given under a so-called special lease scheme (see § 18 below). This administrative decision had created a protected tenancy contract between the parties, on the basis of which controlled rent was to be paid by the tenant and the tenancy could not be terminated by the owner. 7. In January 1999 the applicant, having offered Ms J. an alternative flat, added a new eviction application, which was based on article 56 of the Law on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych). Subsequently, she withdrew the claim related to her tenant's failure to pay the rent. 8. On 6 August 1999 the court gave judgment. It ordered Ms J. to pay overdue rent in the amount of PLN 459,15 and dismissed the eviction application. The court admitted that the applicant had offered J. an alternative flat before seeking her eviction. It pointed out, however, that Article 56 § 7 of the 1994 Law on the Lease of Dwellings provided that a flat offered to a tenant as alternative lodging had to be owned by the person seeking eviction (see § 20 below). However, the flat which the applicant had offered J. was owned by a housing co-operative and the applicant had only a limited right to it. The court considered that: “The plaintiff has a co-operative quasi-proprietorial right to that flat, which, although relatively extensive, is yet limited by a number of provisions of the Co-operative Law and cannot be equated with ownership. This court is bound by laws, and the relevant provision of the Law on the Lease of Dwellings [concerning the requirements that an alternative dwelling had to meet] is unequivocal.” 9. The court further considered that it was not empowered to assume that the legislature had made the reference to mandatory ownership of the alternative accommodation by mistake. Neither could it accept that this reference should be understood as covering also the quasi-proprietorial cooperative right to an apartment. 10. The court finally considered that, pursuant to the 1994 Law on the Lease of Dwellings, eviction of a tenant, if preceded by the offer of an alternative flat, was an exception to the general rule that an owner could not evict a tenant who complied with his or her statutory duties. Accordingly, the provisions covering such exceptions could not be given an extensive interpretation. 11. In the same judgment the District Court discontinued the proceedings in so far as they related to the withdrawn application. 12. The applicant appealed. She submitted that the Law on the Lease of Dwellings should not have been interpreted in her case in the literal manner proposed by the District Court. She argued that the main objective of the provisions concerning eviction of tenants was to protect the property rights of owners. On the other hand, those provisions were also aimed at guaranteeing tenants an effective right to continued and peaceful enjoyment of accommodation and thus required the owners to secure alternative flats for them. In the light of that aim of the Law, the interpretation made by the court had been too restrictive. As a result, only the rights of the tenant were protected by the judgment under appeal, to the detriment of the owner's rights. The applicant pointed out that the alternative lodging which she had offered J. made it possible for her to enjoy peaceful accommodation. The purpose of the provision applied in the case was essentially to secure the position of tenant in an alternative dwelling and to prevent him or her being evicted from it. The apartment offered by the applicant guaranteed such certainty, notwithstanding the fact that she did not own that apartment, but had another right in rem to it, close in its nature to ownership. For those reasons the applicant considered that the dismissal of her eviction application, which made it impossible for her to live in her own apartment, amounted to an infringement of her property rights. 13. The applicant also resubmitted a declaration of the housing co-operative by which it had agreed that the applicant's apartment be let to Ms J. until the end of 2004, i.e. until the time-limit set by the 1994 Law on Lease of Dwellings for the prolongation of the system of protected tenancies. 14. On 20 December 1999 the Warsaw Regional Court (sąd okręgowy) dismissed the applicant's appeal. It pointed out that the underlying purpose of a law could be examined as an aid to its interpretation only if an analysis of a literal meaning of its text proved ineffective. Having regard to the clear wording of the provision at issue and to an unequivocal reference to 'ownership' of the alternative accommodation, the court found that this was not the case. The provision on which the District Court had relied conferred special rights on the owner, in that she was entitled to offer alternative accommodation to the tenant who had been fully complying with the conditions of the tenancy contract. These special rights could not be interpreted in an open-ended manner to the detriment of the tenant. 15. On 14 March 2000 the Warsaw Regional Court rejected the applicant's appeal against the judgment of 20 December 1999, as it was not provided for by law in that case. 16. On 28 February 2001 the Supreme Court dismissed her appeal against the Regional Court's decision of 14 March 2000. 17. From 1945 on, under successive acts of housing legislation, housing matters were subject to state control. The most important characteristics of this system, called the 'special lease scheme' under the provisions of the 1974 Housing Law, was that tenancy contracts were created by administrative decisions. For all practical purposes, such decisions replaced civil law contracts between landlords and tenants. Under this system owners could not choose their tenants as they were imposed by the administrative authorities, tenants paid controlled rent and owners could not terminate leases by giving notice on a tenancy contract. 18. The “special lease scheme” was abolished by the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances. However, the system of protected tenancies was maintained in that the Law provided for protection against termination of leases concluded on the basis of administrative decisions. 19. Under transitional provisions of this Law, protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for indefinite period and governed by the provisions of the 1994 Law. Until 31 December 2004 rents paid for these leases were to remain controlled. 20. The Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances provided, in so far as relevant: “Article 32. 1. ... The owner can terminate the lease if the tenant: ... (2) is in arrears of rent ... for at least two full terms of payment, despite a written notice of intent to terminate the lease and fixing an additional, one-month time-limit for the payment of overdue and current amounts. ... Article 56. 1. Under this law, a lease which originated in an administrative decision on allocation of a flat, or had another legal basis [that existed] before in a given locality the state management of housing or special lease scheme was introduced, shall be treated as a contractual lease concluded for an indefinite period under the provisions of this law. ... 4. If the owner... intends to live in his flat and with that intention has vacated the flat which he has hitherto rented ... from the municipality, the tenant shall be obliged to vacate the owner's flat and to move into the flat [proposed to him], provided that the [condition of] the flat in question complies with the requirements laid down by this law in respect of alternative accommodation. If such is the case, the owner can terminate the lease under article 32 § 2. ... 7. If the landlord has offered the tenant the alternative accommodation he owns himself or if, at the owner's request, such alternative accommodation has been provided by the municipality, paragraph 4 shall apply by analogy.” 21. The Law of 1994 was repealed by the Law of 21 June 2001 on the Protection of Tenants' Rights, the Commune Housing Reserve and the Amendment of the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego), which entered into force on 10 July 2001. 22. Article 11 of that Law provides, in so far as relevant: “... The owner can terminate the contract, if he or she intends to dwell in the flat owned by him, ... [and] provides [the tenant] with an alternative flat.” 23. The Civil Code mentions the quasi-proprietorial right to a flat in a housing-co-operative (spółdzielcze własnościowe prawo do lokalu) in its chapter on limited property rights. The details are described in the Cooperative Law (Prawo spółdzielcze) enacted on 16 September 1982. That law provides: “Article 213. § 1. In buildings owned by a housing co-operative its members have a right to use flats allocated to them ... (co-operative quasi-proprietorial right to a flat) ... Article 223. § 1. The co-operative quasi-proprietorial right to a flat is a transferable right, it may be inherited and is subject to enforcement proceedings. It is a limited right in rem. § 2. The validity of transfer of the co-operative quasi-proprietorial right to a flat depends on admitting the acquirer as a member of the co-operative. ... Article 226. § 1. The member is obliged to participate in the costs of construction, use and upkeep of the co-operative's property, ... and other obligations of the co-operative by bringing in a construction contribution (wkład budowlany) ... in the amount corresponding to the total costs of the construction due in respect of his flat, and by the payment of fees relating to the use of the flat. ...” 24. Under Articles 217 and 238 of the Co-operative Law, a person having the co-operative quasi-proprietorial right to an apartment could let this apartment to third parties or let them use it for free, but only if the cooperative gave its consent thereto. The Constitutional Court, in its judgment of 29 June 2001, found that these provisions were incompatible with the constitutional guarantees of peaceful enjoyment of property rights. This was so because they restricted the very essence of the co-operative quasi-proprietorial ownership right too significantly, in a manner incompatible with the nature of that right in rem, and conferred too strong a position on co-operatives vis-à-vis their members.