The right of co-ownership is the ownership right held by several people simultaneously and indivisibly. Co-ownership is characterized by three basic features, i.e. the unity of the subject, the multiplicity of entities with the right of the co-ownership and the indivisibility of the joint right, which means that each of the co-owners has the right to the entire property.
Such a common right to a property without its physical separation, in practice, however, raises a lot of problems.
Pursuant to Art. 206 of the Civil Code, each of the co-owners shall be entitled to co-possess the thing owned in common and to use it to such an extent which may be reconciled with the co-possession and the use of the thing by other co-owners. So if one of the co-owners uses the property in a manner inconsistent with this, the other co-owners have a number of rights.
It is worth noting that a co-owner deprived of the rights provided for in Art. 206 of the Civil Code is entitled to a claim for admission to possession and use of the property. This claim may be directed against a third party as well as against a co-owner, if he has taken possession of the thing and prevents use and possession of another co-owner. However, such a claim does not apply in a situation, e.g. when the co-owners have concluded an agreement specifying a different than the statutory use of the common property, or when a court decision has been issued in this regard, or when one of the co-owners resigns from exercising this right for the benefit of other co-owners.
The execution of the claim for admission to co-possession may take place, inter alia, by the division of the common property. Pursuant to the resolution of the Supreme Court of March 13, 2008, file ref. III CZP 3/08, the co-owners may establish the rules of using the common thing, for this purpose they may conclude an agreement for the division of things, the so-called quoad usum, which in practice means distinguishing individual parts of the common thing and allocating them to the exclusive use of certain co-owners. However, it is worth remembering that the division of the common thing for use is not definitive, because depending on the changing circumstances, it may be appropriately modified, e.g. as a result of an agreement of the co-owners or a court decision.
In addition, the owner also has the possibility of requesting the release of benefits and revenues from the common thing and may demand remuneration for unlawful use of the common thing.
Pursuant to the resolution of the Supreme Court of March 19, 2013, file ref. III CZP 88/12, the co-owner may demand from the remaining co-owners which use the common thing with violation of art. 206 of the Civil Code, in a manner excluding its co-possession, remuneration for the use of property, pursuant to art. 224 § 2 or art. 225 of the Civil Code. The owner may also use the claim for remuneration for unlawful use of the property when, due to the deprivation of co-ownership, a court division of the quoad usum has taken place or proceedings for the dissolution of co-ownership have been initiated. This claim is partially compensatory – it may aim to reimburse the costs incurred by the owner forced to use someone else’s property or to obtain compensation for lost profits (e.g. due to the inability to rent the property), and partially resembles a claim for the return of unjust enrichment. However, it is worth bearing in mind that the amount of remuneration due is determined by market rates and the time of possessing of the property by an unauthorized person. It does not matter, however, whether the possessor actually gained any benefits and the owner suffered some damage (see the judgment of the Supreme Court of April 15, 2004, file ref. IV CK 273/03). The claim of the co-owner for remuneration for the unlawful use of the common property may be pursued both independently and in addition to the claim for reimbursement of benefits. The co-owner may also claim admission to co-ownership, as well as remuneration for the unlawful use of things by other co-owners. Such a claim is independent in nature.
Notwithstanding the foregoing, a co-owner deprived of the possession of a common thing by another co-owner may always apply for the dissolution of co-ownership. This happens both when the co-owners cooperate in exercising the rights to the common property and when there is no consent between them.
Marta Pałyga
Aplikantka adwokacka | Trainee Attorney
T: +48 22 447 43 00
E: palyga@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.