ZABOR v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Mr Stanisław Zabor, is a Polish national, who was born in 1954 and lives in Wrocław. He was represented before the Court by Mr B. Latos, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On an unspecified date the applicant’s mother was granted, by way of an administrative decision, the right to a protected lease of an apartment located in a building owned by the Wrocław municipality. The applicant had lived in this apartment since 1955. It appears that he moved out in 1980 following his marriage (see paragraph 34 below). 4. In 1995 the applicant’s father signed a tenancy agreement with the municipality, which replaced the earlier administrative decision. The agreement stipulated that other tenants would be the applicant, his mother and his brother. 5. In 1999 the applicant’s brother and father, who apparently had both been in conflict with the applicant, instituted proceedings to strike out the registration of the applicant’s permanent residence in the apartment on the ground that he did not live there. According to the applicant, in those proceedings his mother confirmed that he has been living in the apartment. On 22 October 1999 the Mayor of Wrocław refused the request. 6. The applicant’s father died on an unspecified date. 7. On 13 January 2001 the applicant’s mother died. The applicant’s brother was recognised as a successor to the tenancy agreement. 8. The applicant requested that the municipality recognise him also as a successor to the tenancy agreement. This was refused by a letter of 10 July 2001 on the ground that the applicant did not comply with the requirement for such a succession set out in section 8 of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (“the 1994 Act”) since he had not lived in the apartment. At the same time the municipal housing administration instituted proceedings to strike out the registration of his permanent residence in the apartment. 9. On 27 February 2002 the municipal administration reiterated their refusal to sign a tenancy agreement with the applicant. 10. On an unspecified date in 2002 the applicant was allegedly forced to leave the apartment due to the aggressive behaviour of his brother. 11. The Government submitted that according to the Mayor of Wrocław’s internal inquiry the applicant had not been living in the flat for many years. They contended that this fact had been confirmed by the applicant during his interview before the Wrocław Municipal Office on 21 January 2002. 12. In consequence of the above-mentioned internal inquiry, on 17 April 2002 the Mayor of Wrocław gave a decision striking out the registration of the applicant’s permanent residence in the apartment. The Mayor, having regard to the evidence of two residents of the building and the applicant’s brother, established that the applicant had not been living in the apartment for many years. The applicant confirmed this fact, but stated that he had been prevented from occupying the flat by his brother. On 10 June 2002 the Governor of Dolny Śląsk Region upheld the Mayor’s decision. He noted that the applicant had not attempted to use legal remedies to recover the occupation of the apartment. The applicant appealed. On 22 June 2004 the Supreme Administrative Court dismissed his appeal. It emphasised that the act of registration was solely a technical act confirming the fact of residence in the flat and did not concern the right to a given dwelling. 13. On 24 July 2002 the applicant brought an action against the municipality, claiming that he should be recognised as a successor to the tenancy agreement after his mother’s death. On 6 November 2002 the Wrocław Śródmieście District Court gave a judgment in default, allowing his claim. The municipality lodged an objection against that judgment. 14. On 7 March 2003 the Wrocław Śródmieście District Court upheld the judgment in default and confirmed that the applicant was the successor in respect of the tenancy agreement. Neither party filed an appeal against that judgment. 15. On 5 May 2003 the applicant requested the Wrocław municipality to take steps to make the judgment operational by concluding a tenancy agreement with him. 16. In a letter of 18 July 2003 the municipality stated the following: “In reply to your letter and with reference to the attached judgment of 7 March 2003, I should inform you that under that judgment you became your mother’s successor in respect of the tenancy agreement, but that it is impossible to sign such an agreement with you. This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis. This has already resulted in the decision of the Mayor striking out the registration of your permanent residence in the apartment. Consequently, pursuant to Article 11 (3) 1 of the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code, the municipal office hereby gives six-month notice in respect of the agreement which you obtained under the judgment referred to above, the agreement expiring on 29 February 2004. The factual basis for the termination of the agreement is the fact that you have not been living in this apartment for a period longer than twelve months.” 17. On 9 December 2003 the applicant lodged an action with the Wrocław Śródmieście District Court in which he sought a declaration under Article 189 of the Code of Civil Procedure that a tenancy agreement existed between him and the municipality. 18. On 25 February 2005 the court gave a judgment in default and allowed the applicant’s claim. The municipality filed an objection to that judgment. On 23 September 2005 the Wrocław Śródmieście District Court upheld the judgment in default. It appears that subsequently the judgment became final and enforceable. 19. On 19 December 2005 the applicant requested the Wrocław municipality to sign a tenancy agreement with him, having regard to the final judgment of 25 February 2005. He also requested the municipality to evict his brother from the apartment. 20. On 28 March 2006 the municipality informed the applicant that it recognised him as a tenant in accordance with the judgment of 25 February 2005. It further informed the applicant about the significant rent arrears in respect of the apartment and set a time-limit to pay them. The applicant’s brother was also requested to clear the rent arrears as a joint tenant. 21. The applicant replied that on 10 July 2001 the municipality had refused to recognise him a successor to the tenancy and that subsequently the registration of his permanent residence in the apartment had been struck out. In those circumstances the applicant could not occupy the apartment. He requested the municipality to seek payment of rent arrears from his brother who had been the sole occupant of the apartment. 22. On 21 June 2006 the municipality informed the applicant that it had initiated the procedure with a view to terminating the tenancy agreement since the rent arrears had not been paid. On 23 May 2007 it informed the applicant that it did not have legal means to reinstate his possession of the apartment. On 6 June 2007 the municipality terminated the tenancy agreement with the applicant and his brother with effect from 31 July 2007. 23. On 12 June and 24 July 2007 the municipality again confirmed that the applicant and his brother were the lawful tenants. It underlined that there were no obstacles to the applicant’s use of the apartment occupied by his brother in the absence of a written tenancy agreement. The signing of the written agreement had been postponed until the time when the applicant and his brother cleared the rent arrears. 24. On 9 April 2008 the applicant requested the Mayor of Wrocław to authorise the registration of his permanent residence in the apartment. On 22 August 2008 the request was dismissed on the grounds that the applicant had not lived in the apartment for many years. That decision was upheld on appeal. 25. On 21 May 2008 the municipality filed an action against the applicant and his brother with the Wrocław Śródmieście District Court, seeking payment of rent arrears. On 27 May 2008 the court issued an order for payment against the applicant and his brother. The applicant filed an objection to the order. The municipality submitted in the proceedings that it was the applicant’s brother who had refused to allow the applicant’s access to the apartment. The municipality had no legal means to resolve the family conflict and it was up to the applicant to institute proceedings for repossession. 26. On 10 February 2009 the Wrocław Śródmieście District Court dismissed the municipality’s action against the applicant. It found that the municipality had consistently obstructed the applicant in taking possession of the apartment. The court noted firstly that the municipality had struck out the registration of his permanent residence in the apartment which had had adverse effects on the applicant’s ability to occupy the apartment. The applicant’s brother had used the lack of the applicant’s registration as a pretext not to let the applicant into the apartment. Secondly, the municipality had not recognised the applicant as the successor to the lease and thus had forced him to assert his rights in court proceedings. Thirdly, the municipality had refused to confirm in writing the conditions of the tenancy agreement. Consequently, the applicant had not known his obligations as a tenant, in particular as regards the amount of his rent. The court found that since the municipality had not respected its obligations under the tenancy agreement towards the applicant it was not entitled to claim rent from him. 27. The municipality appealed. On 23 June 2009 the Wrocław Regional Court dismissed the appeal. 28. On 2 July 2009 the municipality filed an action with the Wrocław Śródmieście District Court against the applicant and his brother, seeking their eviction. On 10 September 2009 the Wrocław Śródmieście District Court gave judgment. It ordered the applicant’s brother to vacate the flat and ruled that the municipality was under an obligation to provide him with social housing. 29. The court dismissed the action against the applicant. It noted that the applicant’s right to the lease of the flat had been confirmed in its final judgment of 25 February 2005. The court further noted that in accordance with the final judgment of the Wrocław Regional Court of 23 June 2009 the applicant had not been obliged to pay the rent arrears. The court found invalid the municipality’s notice of termination of the tenancy agreement issued on the grounds of the failure to pay the rent arrears and confirmed the applicant’s right to use the flat. The municipality did not appeal. 30. On 5 May 2010 the municipality summoned the applicant to sign an appendix to the tenancy agreement to the apartment, specifying him as a tenant. 31. On an unspecified date the applicant complained to the municipality about its failure to provide social housing to his brother in accordance with the Wrocław Śródmieście District Court’s judgment of 10 September 2009. In its reply of 23 June 2010 the municipality informed the applicant that it did not question his right to the lease of the apartment and did not refrain from confirming the lease in writing. In any event, the applicant was informed that his right to the apartment did not depend on the written confirmation thereof. With regard to the eviction of his brother, the municipality informed the applicant that due to a significant number of eviction judgments and the limited stock of municipal social housing it could not immediately satisfy his request to have his brother evicted. 32. In his reply of 21 July 2010, the applicant informed the municipality that he decided to refrain from signing the agreement for the duration of the proceedings before the Court. 33. On 14 November 2011 the applicant brought an action against the municipality in the Wrocław Regional Court. He sought compensation for rendering him long-term homeless in connection with the municipality’s failure to enforce four final judgments. The applicant submitted that he had succeeded to the tenancy agreement after his mother’s death on 13 January 2001. He had been expelled from the flat by his brother who was an alcoholic. Subsequently, the municipality had struck out the registration of his permanent residence in the apartment and refused to sign a tenancy agreement with him. The applicant claimed that as a result he could not find employment for a period exceeding ten years. 34. On 13 February 2013 the Wrocław Regional Court dismissed the applicant’s action. It found that the applicant had failed to demonstrate that he had suffered the alleged damage, namely the long-term homelessness and the lack of employment as a result of the municipality’s actions. With regard to the alleged homelessness, the court noted that the applicant had succeeded to the tenancy agreement after his mother’s death. The municipality had initially refused to confirm the content of the tenancy agreement and had struck out the registration of his permanent residence in the disputed apartment. However, it did not result from these circumstances that the applicant had become homeless. The court noted that the applicant had not demonstrated that he had been homeless in the period of ten years preceding the lodging of his action. The court established that the applicant had moved out of the flat in 1980 after his marriage. Initially, he had lived with his wife at his parents-in-law and subsequently in an apartment located at Starościńska Street. After about twelve years he had moved out following a conflict with his wife. Subsequently, he had rented flats, lived at his sister and at an allotment. The applicant had not attempted to move into the apartment at issue for more than ten years on account of the conflict with his brother. Currently, he was living in a garden hut owned by his son-in-law. The court concluded then that the applicant had not been a homeless person at the relevant time. 35. With regard to his alleged unemployment, the court established that up until 2007 the applicant had run a transportation firm. Subsequently, he had worked as a security guard and helped his son-in-law with the latter’s business. He had registered as an unemployed only on 22 February 2010 and had lost the right to an unemployment benefit on 2 March 2011. Having regard to the above, the court found that the applicant had been able to rent a flat or a room in order to avoid the alleged homelessness. In addition, besides his brother, the applicant had other close family, including his wife, two adult children and three sisters. 36. The court also found that regardless of the issue of damage, the applicant had not proved that the municipality had acted unlawfully in his case. It noted that the applicant had been deprived of the possibility of living in the apartment at issue after his parents’ death because of the conflict with his brother. The applicant admitted this in the proceedings. The applicant had reproached the municipality for having struck out the registration of his permanent residence in the apartment; however, the court observed that this decision had been upheld on appeal as having been made in accordance with the law. In addition, the court noted that the applicant had not been living in the apartment for more than thirty years. The allegation that the municipality had not signed a tenancy agreement with the applicant had been also unjustified. The court noted that the applicant had succeeded to the tenancy agreement after the death of his mother by operation of the law. The lack of written confirmation of the applicant’s tenancy agreement had had no effect on the existence of the applicant’s right to the apartment. In any event, the municipality had invited the applicant to sign the relevant agreement but the applicant had so far not responded to the invitation. 37. Lastly, the court found that the applicant had not established a causal link between the actions of the municipality and his situation in the last ten years. In particular, the municipality could not be held responsible for the applicant’s situation, such as the conflict with his brother as well as the applicant’s marital problems and the moving out of the flat which he had shared for long years with his wife. 38. The applicant appealed. 39. On 19 June 2013 the Wrocław Court of Appeal dismissed the applicant’s appeal. It accepted the facts as established by the Regional Court. 40. The Court of Appeal confirmed that the applicant had not demonstrated that the municipality had acted unlawfully. It noted that the applicant had blamed the municipality for its inactivity in making the apartment available to the applicant. However, the tenancy agreement in respect of the disputed apartment had been in the name of the applicant and his brother, while it was only the latter who had been the sole occupant of the apartment. The Court of Appeal noted that the municipality had had no powers to compel the applicant’s brother to allow the applicant’s access to and use of the apartment. It further noted that if the applicant’s brother had prevented him from occupying the apartment to which he had been entitled under the tenancy agreement, the applicant should have directed his claims against the brother and not against the municipality. 41. From 1945 to 1994 housing matters were subject to a high degree of state control under successive provisions of housing legislation. The most important characteristic of this system, a so-called “special lease scheme”, was that a lease was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid a controlled rent and the owners could not terminate the lease by giving notice to the tenant. The special lease scheme was also applicable to houses owned, until 1990, by the State Treasury, and after the reform of the local administration, by the municipalities. 42. The “special lease scheme” was abolished under the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), (“the 1994 Act”) which entered into force on 12 November 1994. However, the special lease scheme (protected lease) was still applicable to tenants who were allocated their apartments on the basis of administrative decisions. 43. Under transitional provisions of the 1994 Law, lease agreements which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the 1994 Law. The 1994 Act maintained, albeit with slight modifications of wording, the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease. 44. Section 8(1) of the 1994 Act read: “1. In the event of a tenant’s death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant’s household until his or her death, succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling. 2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.” 45. In 2001 parliament adopted a new law governing housing matters and relations between landlords and tenants. The Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”) entered into force on 10 July 2001. It repealed the 1994 Act. 46. Under Article 11 (3) 1 of that Act, the owner of apartment may give sixmonths notice on the lease agreement if the tenant has not been living in that apartment for more than twelve months.