Since February 24, 2022, the beginning of the armed conflict in Ukraine, more than 3,000,000 citizens have left the country. Most of them seek refuge in Poland. In this unusual situation, many Poles host Ukrainians in their homes. Entrepreneurs also provide help by giving apartments or parts of apartments to our neighbors fleeing their country.
Each entity that wants to help Ukrainian citizens fleeing war to meet their housing needs must consider on its own the scope of assistance it wants to provide and what legal risks it is willing to bear. If the assistance is to be of a polite and temporary nature, it would seem to fit into the informal institution of precarity. If, on the other hand, the assistance is to be framed in some legal framework, then any entity that would like to provide housing or parts of housing free of charge to Ukrainian citizens arriving in Poland in connection with the war effort could use a lending agreement.
In practice, the distinction between a precariat and a lending agreement is not sharp. Only an analysis of the totality of the circumstances of a given case can provide a basis for determining whether it is preferable for an entity wishing to assist Ukrainians to make a precarium or to enter into a free lending agreement.
By means of a lending contract, the lender agrees to allow the borrower to use the property provided free of charge for a definite or indefinite period of time. The subject matter of a lending contract may also be a dwelling or a part thereof. The hirer is obliged to use the property in a way consistent with its purpose and properties. Without the lessor's consent, the lessor may not transfer the premises to third parties for use.
The lessor is liable only for defects of the subject-matter of the lease agreement that caused any damage to the lessee. Liability for damage arises if the lessor concealed defects in the premises from the lessee that the lessee could not foresee.
the naked eye could not notice. If the hirer suffers damage, he can claim compensation.
Before concluding a lending contract it is important to note that if the person wishing to conclude a lending contract with a Ukrainian citizen leases the premises to be lent, it will be necessary to obtain the lessor's consent to lease the leased premises to third parties free of charge.
As a rule in the case of a lending contract the lender is obliged - in accordance with Article 713 of the Civil Code - to bear the costs of property maintenance. - to bear the maintenance costs of the property. Therefore, a citizen of Ukraine may be obligated to pay the following maintenance fees
administrative fees and charges, such as electricity, gas, water and other utilities.
Importantly, Article 68 of the Law of March 12, 2022 on Assistance to Citizens of Ukraine in Connection with the Armed Conflict on the Territory of Ukraine (the Specustawa) provides a form of security for persons who support citizens of Ukraine by temporarily meeting their housing needs:
In the case of lending to a citizen of Ukraine, referred to in Article 1, paragraph 1, a building or part thereof for the purpose of temporarily satisfying housing needs, the provisions of the Act of 21 June 2001 on the protection of tenants' rights, the housing stock of the municipality and the amendment of the Civil Code (Dz. U. of 2022, item 172) and Art. 15zzu sec. 1 of the Act of March 2, 2020 on special solutions related to preventing and combating COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2021, item 2095, as amended).
The above specific regulation is due to the fact that, according to the provisions of the Law on the Protection of Tenants' Rights, as a rule, a person who uses premises on the basis of a lending agreement is a "tenant" (this should be understood as a tenant of premises or a person using premises on the basis of a legal title other than ownership). In the absence of this exclusion, Ukrainian citizens who came to Poland in connection with the war effort would be subject to full protection under both the Law on the Protection of Tenants' Rights and Article 15zzu of the Covid Law, and entities providing premises free of charge and voluntarily could face onerous negative consequences (obligations and restrictions) related to, for example, the possibility of recovering the premises. Exclusion does not mean full freedom to recover the premises from Ukrainian citizens (the lending person is qualified as a possessor, and even unlawful possession is subject to legal protection), but in practice will eliminate some of the risk for those who help Ukrainians by providing them with premises free of charge. Thanks to this regulation, the enforcement title ordering to vacate a dwelling can be executed even during the period of the state of epidemics declared due to COVID-19, and the regulations on substitute accommodation that prolong the eviction procedure are also reduced. Thanks to the exclusion of the application of the Act on protection of tenants' rights, it will also be easier to subject to eviction families with children or disabled persons.
A situation in which a Ukrainian citizen, for humanitarian reasons, is provided with free hospitality, may also fit into the institution of precarium. Unlike lending, precarium is a factual rather than a legal relationship. Precarium has not been regulated in the Polish legal system.
Precarious dominion (Latin: precarium) is a form of dominion in which the lender has direct control over another person's property (including the premises or a part thereof) solely as a result of courtesy on the part of the owner, who is willing to do the lender a favour despite the lack of a legal obligation to provide access to the premises resulting from a statute or a legal transaction.
No subjective right arises for the squatter from the precariat. Precariousness may lead to actual possession of another person's property or only limited use thereof, but it does not lead to possession of the property and does not benefit from possessory protection. The thing can be taken away at any time, and the person who has the thing taken away is not entitled to legal protection (Supreme Court judgment of 13.09.2001, ref. IV CKN 425/00). In such a relationship, from its very essence, the provisions on the protection of tenants' rights do not apply, which may significantly facilitate the recovery of the premises, should the guest not want to leave it voluntarily.
As already indicated, the characteristic feature of a precariat is the absence of an intent to be legally bound between the possessor of the thing and the precariat. It is not an obligatory relationship, the parties do not make declarations of will towards each other - therefore it should not take the form of a formalized agreement between the parties.
If you want to use the form of a precarium to reduce the risk of the parties being deemed to have concluded a lending agreement, you should remember that:
- A precarium is always free of charge - unlike lending, no fees can be charged to tenants. This also applies to costs associated with the ongoing maintenance of the property, such as utility bills.
- Precariousness has rather a short and sporadic character - a few years' stay of a particular person in premises belonging to another person, even if the stay was intermittent, enters into the sphere of legal relationship and entitles to res judicata protection (as e.g. the Supreme Court in the judgment of 1 September 1958, 1 CR 745/58).
- Precariousness cannot mean that the person providing shelter fully relinquishes use of the premises to a third party.
- As a rule, precarium should occur in relations between natural persons who are not entrepreneurs - however, it does not seem that providing hospitality to a Ukrainian citizen by an entity which is not a natural person is excluded, if other features of precarium are preserved.
The author of the material is Marta Wegner-Sarzyńska, legal adviser at GWW.
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