3-4/2005 UINL - Notarius International

176 A. Kucharski, Acquisition of Real Estate in Poland by Foreigners Notarius International 3-4/2005
1.4. Place of Permanent Residence (Domicile)
The term of “permanent residence” (domicile) appears
to be the most problematic issue.
Pursuant to Article 25 of the Civil Code, the place of
permanent residence of a natural person is the place
where such natural person may stay with the intent to reside.
In order to determine one’s residence in the meaning
of the Civil Code the two premises have two be verified
(the premise of staying and the premises of the intent
of permanent (normal) residence). Where the two premises
loose their validity temporarily a place will continue
to enjoy its attribute of a “residence”. What is really
needed now is an objective criterion. One dwells with the
intent of permanent residence if an average observer may
draw a conclusion that a particular village, town or city is
the central to one’s activities.
Polish law provides for several other modes of meaning
in respect of residence (domicile). Examples include
regulations with references to an apartment or a specific
address instead of names of villages, towns or cities.
What makes the issue even more complicated is the epithet
“permanent” relating to the administrative requirement
of registering one’s permanent residence.
All individuals staying within the territory of the
Republic of Poland have to meet the residence registration
obligation. A foreigner staying within the territory of
the Republic of Poland is no different in this respect and
has to meet the obligation of residence registration, too.
In accordance with the Act on the rules of entering and
visiting the territory of the Republic of Poland by
European Union Member State nationals and members of
their families, dated 27 July 2002 6 , an EU national or a
member of his/her family may not stay in the territory of
the Republic of Poland for more than 3 months unless
they obtain a permission of residence and/or a permission
of temporary residence. This is not required from EU nationals
who engage in work, free-lance jobs and/or self
employment in the territory of the Republic of Poland,
have their permanent residence in the territory of another
EU member state and return there on a daily basis or at
least once a week. Residence permissions are issued to
EU nationals conditional to the provisions of the above
Act including but not limited to nationals who engage
and/or intend to engage in work, free-lance jobs and/or
nationals who intend to or engage in business activities in
the territory of the Republic of Poland for a more than 12
months. Residence permissions are issued for 5 years effective
of the date of issuing.
Finally there is a serious doubt, whether the fact of registering
a foreigner at a specific address in a village, town
or city has direct impact on determining his or her place
of residence (domicile). Unfortunately the Minister of
Interior and Administration seems to refer to the specific
parcel planned to be bought by the foreigner. This is
inconsistent with the concept of the “residence” contained
in the Civil Code.
One could not fail to ignore the temporary aspect of the
following phrase: “deemed to be the permanent place of
dwelling”. It bears a clear future reference. A reasonable
solution would be to request a European Economic Area
national, who acquires housing or recreation and leisure
land, to immediately transfer his/her permanent residence
(domicile) to Poland. In practice, a notarised representation
will be immediately required which states a village, town
or city of permanent residence (domicile). A foreigner’s
failure to do so may result in the Minister’s of Interior and
Administration taking a legal action to null the sale agreement.
It is also possible that on making a notarial deed a
notary may request, as a precaution, that a national the
European Economic Area, who intends to purchase housing
development or recreation and leisure land, presents a
proof of temporary or permanent residence registration 7 .
2. Restrictions of Acquisition of Agricultural Land
and Forests of Woodlands
Pursuant to Article 8 paragraph 2a sub-clause 1 of the
Act on Acquisition of Real Estate by Foreigners, foreigners
who are residents and/or entrepreneurs of the
European Economic Area member states are required to
obtain a permission to purchase agricultural land and/or
forest land or woodlands. This obligation is to remain in
force for 12 years of the date of Poland’s EU accession.
2.1 Exemption for Purchase by the Leaseholder
No permission is required if agricultural land is located
in one of the following Voivodeships (provinces):
- Dolnoœl¹skie, Kujawsko-Pomorskie, Lubuskie,
Opolskie, Pomorskie, Warmiñsko-Mazurskie,
Wielkopolskie and Zachodniopomorskie – after 7
years of the date of a lease agreement at an authenticated
date;
- Lubelskie, £ódzkie, Ma³opolskie, Mazowieckie,
Podkarpackie, Podlaskie, Œl¹skie, Œwietkorzyskie – after
3 years of the date of a lease agreement at an authenticated
date
– in both cases, provided that in the above period, the
said foreigner has personally carried out agricultural
activities on this land and legally lived in the Republic
of Poland.
The above regulation gives rise to several doubts with
an immediate question about the definition of agricultural
land. The use of conjunction “and” must not affect the
actual interpretation of the law dealing with agricultural
land and/or forests.
2.2 Definition of Agricultural Land
Polish law provides for several regulations that contain
legal definitions of agricultural land. With no explicit reference
to any one of them, however, the Civil Code definition
seems to prevail as the one provided by the basic act
of parliament in the civil law area. Pursuant to Article 461
of the Civil Code agricultural immovable properties (agricultural
lands) are immovable properties which are or can
6 Dz. U. (Official Journal) 2006, No. 141, item 1180.
7 See Adam KUCHARSKI, Pojêcie „nabycia drugiego domu” w ustawie
o nabywaniu nieruchomoœci przez cudzoziemców, Kwartalnik Prawa
Publicznego 2005, No. 1.