Wyniki wyszukiwania - Biblioteka Nauki

1

Jeszcze o rozporządzaniu albo o „rozporządzaniu” pomieszczeniem przynależnym do lokalu

100%

Kućka M.

Rejent

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2021

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nr 3 (359)

11-27

EN

The paper covers admissibility and effects of contracts concerning “transfer” of so called adjoining rooms between owners of premises. These kind of rooms are legally considered by Polish legislator as “component parts” of appartments (when the appartments are objects of separate ownership) and therefore may not be transferred (a component part of a thing cannot be a separate object of ownership and other property rights). It is argued that these contracts lead to a change of content of ownership between owners of premises. It is possible because owners have right to modify or affect the object of their ownership (and by doinig this they modify the content of their ownership). These kind of contracts should be concluded in notarial deed and are effective only when the “acquirer” of an adjoining room is entered into land and mortgage register. It is also disputed that a “transfer” of an adjoining room leads to division of the appartment of which the room is a component. Otherwise it would lead to undesirable effects, for instance to creation of a collective mortgage (if the previous appartment from which the room was “separated”, was encumberred with a mortgage).

2

Zasiedzenie i jego skutki z perspektywy konstytucyjnej. Rozważania w przededniu uchwały składu 7 sędziów Sądu Najwyższego (III CZP 103/22)

100%

Kućka M.

Rejent

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2023

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nr 11 (391)

11-44

EN

The article attempts to answer the question of whether the Polish statutory regulation of acquisitive prescription is compatible with the Polish Constitution. Several possible variants of the understanding of ownership under the Polish Constitution are presented. Then . taking into account the various interpretative variants . an interpretation of the statutory regulation of acquisitive prescription was made. As a result of these considerations, it is argued that acquisitive prescription should take into account the interest of the previous owner and, despite the loss of title to the property, he should obtain the value of the lost right. Moreover, third party rights limiting the ownership should not be extinguished as a result of acquisitive prescription. The Polish legislator . differently than the Draft Common Frame of Reference . is silent on both issues. The inspiration for the article is the issue soon to be tackled by the Polish Supreme Court, which concerns whether, as a result of acquisitive prescription, the previous owner loses the claims to which it was entitled, for remuneration for non-contractual use of its property (inter alia against the previous holder who is the current owner of the property). Moreover, the article expresses the view that the Polish regulation on the statute of limitations of a claim for recovery of a movable thing, which the owner is entitled to against the possessor in bad faith (who, according to Polish law, cannot acquire ownership of the moveable thing by acquisitive prescription), is unconstitutional.

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Kształtowanie współwłasności przez współwłaścicieli ze szczególnym uwzględnieniem współwłasności przymusowej

100%

Kućka M.

Kwartalnik Prawa Prywatnego

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2023

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tom 32

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nr 3

397-463

EN

The article presents the character of the norms regulating the co-ownership in the Polish Civil Code of 1964. It is argued that the Polish legislator used – exceptionally – default rules to set forth the management and the manner of using a co-owned thing. As the co-ownership (like ownership) is an absolute right, the legislator at the same time protects the interests of third parties by conditioning the effectiveness of the legal act of the co-owners changing the default rules on co-ownership on the awareness of the acquirer of the share in co-ownership of these acts. It is disputed that the effectiveness of these acts is limited not only to acquirers of shares but also any third parties – i.e. co-owner’s creditors. As the result co-owners are free to shape their common right as they choose. Their freedom is vast as it is said that it should be proportional to the effects of encumbering the thing with a limited real right – a right of usufruct (as then the owner or co-owner is left with just ius nudum). The legal act of shaping the co- ownership is deemed as the act of disposition of the co-ownership (the change of its substance) as the opposition to the concept of real obligations (the concept of real obligations is deemed as inapt to regulate especially the management of the co-owned thing). The article focuses on compulsory or quasi-compulsory co-ownership as it is more likely that in those cases co-owners will try to stabilize their rights and obligations under co-ownership, especially they will divide the usage of the thing or entrust a natural or a legal person to manage the co-owned thing or set forth the rules of management. The article is an introductory study to default rules in ius in re regulations.

4

Glosa do uchwały Sądu Najwyższego z 17 czerwca 2010 r., sygn. akt III CZP 41/2010

63%

Kućka M.

Forum Prawnicze

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2011

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nr 2 (4)

74-82