access to information on legal status of real estates in poland

Transkrypt

Gryszczyńska A. (2009).
Access to information on legal status of real estates in Poland.
In: D. Kereković (ed.). Time, GIS & Future.
Hrvatski Informatički Zbor – GIS Forum, University of Silesia, Zagreb, 251-257.
ACCESS TO INFORMATION ON LEGAL STATUS OF REAL
ESTATES IN POLAND
Agnieszka Gryszczyńska
Faculty of Law and Administration
The Information Law Department
Cardinal Stefan Wyszyński University
[email protected]
Abstract
The principal aim of real estate and mortgage registers is to determine the legal status of a
given real estate. Real estate and mortgage registers are supposed to guarantee security of real estate
transactions and hedging of mortgages, therefore it is necessary to disclose the legal status recorded
therein in such a way so as to enable every interested person to obtain complete and reliable
information on the owner, claims to and encumbrances on the real estate. In view of the above, the
basic mandatory principles governing real estate and mortgage registers include the disclosure
principle, resulting from performance of an informative function by the register. Real estate and
mortgage registers can duly perform their functions only in the case where they are accessible to
everyone and their contents are in the public domain.
The aim of the article is to analyze the informative function of real estate and mortgage
registers as well as extension of formal and material free access to the register resulting from
informatization.
The legitimacy of further lifting of information barriers by means of making the register data
available online, the manner of providing access to the resources, and protection interests of those
persons whose register data is disclosed are also worth considering.
Introduction
In Poland data regarding estates is collected in various registers – the basic registers
concerning real estate are real estate and mortgage registers and the registry of lands and buildings.
Real estate and mortgage registers constitute the material court register, whose aim is to disclose the
legal status of a given real estate. Data disclosed in real estate and mortgage registers constitutes the
basis to establish the ownership title to a real estate, and information comprised in the lands and
buildings registry is the grounds to denote individual real estate in real estate and mortgage registers33.
But the real estate and mortgage registers do not only serve as a kind of record – the entry to the real
estate and mortgage register triggers certain material and legal consequences that influence the titles to
real estate34. Real estate and mortgage registers are also – as a rule – public and subject to the principle
of the overriding interest. Along with the informatization of public registers, the access to data
concerning a legal status of a real estate, as well as the scope and quality of registry data change.
The objective of this article is to analyse changes in the access to information regarding legal
status of real estate, disclosed in real estate and mortgage registers. Further on differences will be
indicated between the access to the traditional real estate and mortgage register and the electronic
33
The issue of mutual relations of real estate and mortgage register and lands and buildings register in Poland are regulated
by article 26 of Real Estate and Mortgage Register Act (Real Estate and Mortgage Register Act 1982) and by article 21 of
Geodetic and Cartographic Law (Geodetic and Cartographic Law Act of 17 May 1989 (Dz. U. 2005. No. 240, position 2027
with the amendments) hereafter called p.g i k.). According to the article 26 of Real Estate and Mortgage Register Act the
basis for property designation is data from lands and buildings register and the article 21 of p.g. i k. states that data recorded
in lands and buildings register are the basis for economic planning, development planning, size of taxes and benefits
planning, property designation in real estate and mortgage register, public statistics, management of real estates and farm
register. Lands and buildings register includes information about lands–- their location, borders, surface, types of soil and
their valuation class, denotations of real estate and mortgage register or documents, buildings and flats register.
34
J. Ignatowicz, Prawo własności i inne prawa rzeczowe [w:] System Prawa Cywilnego Tom II, Wrocław – Warszawa –
Kraków – Gdańsk 1977, str. 799
251
register, in particular in the aspect of execution of one’s right of access to the register’s contents and
the right to receive the real estate and mortgage register’s transcript.
Real estate and mortgage registers as the public register
The term „register” traditionally denotes an index, a specification or a list35. In accordance
with the Law on Informatization36 a public register is a register, a record, a specification, a list, an
index or another form of files used to accomplish public tasks, managed by a public entity on the basis
of separate provisions of law. Official registers form a part of public information resources and are
frequently approached to as an indirect form between passive and active openness of administration37.
The existing registers may be classified on the basis of the type of entries, the functions of
registers or the extent to which registry data is accessible. If we take as the classifying criterion the
entities managing the register, we may differentiate court registers (real estate and mortgage registers,
National Court Register, the register of liens) and administrative registers (the population registry). A
court register is defined as a public record managed by the court, used to disclose facts – determined
by law – regarding the subjects or facts subject to registering38.
An important trait of public registers is their openness, the presumption of entries’ authenticity
and a public character of the managing entity39. Władysław Leopold Jaworski indicated that public
registers are accessible for everybody (without limitations or with certain restrictions), are assigned to
record in them information about certain facts, status or titles and are administered by the public
authorities40.
We may distinguish two aspects of openness – the formal openness and the material openness
of a register. The formal openness means that access to the register is guaranteed in case one wants to
find out what information is comprised therein. This guaranteed right includes the right to access the
register, to receive transcripts, excerpts, certificates confirming officially the contents of entries or the
contents of submitted documents, as well as the right to make notes41. The formal openness includes as
well the right to familiarise oneself with the registry files (art. 361 section 3 of the Law on Real Estate
and Mortgage Registers), although this right is usually subject to limitations.
The material openness of the register means that the register discloses the actual legal status,
which entails specific legal consequences. The presumption of authenticity of entries is the grounds
for trust in information disclosed in the register – the state assumes the risk of an appropriate
organisation of the registration system in the manner which ensures the consistency of data with the
actual status.
The accessibility (the formal openness) and the reliability (the material openness) of data
subject to entry, and acknowledged by the legislator to be significant from the legal perspective,
exercise influence on the importance of a given register and its role as the guarantor of the security of
trade. The significance of openness was already emphasised by the Polish legislator in the XVIth
century – the manifestation of acknowledging the necessity to ensure the openness of court records is
the Law on the Validity of Entries of 1588, in accordance with which all individuals interested could
gain access to court record in exchange for a small fee; and the actual status of encumbrances
disclosed in the record was to be consistent with the entry in the records42. At that time, however, the
35
G. Szpor, C. Martysz, K. Wojsyk, Ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne,
Warszawa 2007 str. 44
36
Article 3 point 5 (Ustawa z dnia 17 lutego 2005 r. o informatyzacji działalności podmiotów realizujących zadania
publiczne, Dz. U. No. 64, position 565 with the amendments)
37
J. Boć, J. Jendrośka, K. Nowacki, G. Winter, Dostęp do informacji i akt w sferze ochrony środowiska, Wrocław 1990,
str.80
38
E. Bieniek-Koronkiewicz, J.Sieńczyło-Chlabicz, Skutki wpisu do Krajowego Rejestru Sądowego, Glosa 2002/8 s. 15, P.
Suski, Rejestry sądowe, Warszawa 1994 s. 7, E. Marszałkowska – Krześ, Ustawa o Krajowym Rejestrze Sądowym.
Komentarz, Warszawa 2001 s. 15
39
Z. Janowicz, Zagadnienia dokumentacji w prawie wodnym, Zeszyty naukowe UAM z4 prawo, Poznań 1957, str. 154-155;
quotation after G. Szpor., Informacja w zagospodarowaniu przestrzennym, Katowice 1998
40
J.W. Jaworski, Ustawy o księgach publicznych. T1.:Powszechna ustawa o księgach gruntowych i instrukcja hipoteczna,
Kraków 1897, str. 11-12
41
Compare: Z. Fenichel, Księgi gruntowe a rejestr handlowy. Próba zestawienia porównawczego, Przegląd Notarialny,
1935, nr 10, s. 11, T. Stawecki, Rejestry publiczne. Funkcje instytucji, Warszawa 2005 str. 101
42
J Bardach, B. Leśniodorski, M. Pietrzak, Historia ustroju i prawa polskiego, Warszawa 1997, str. 259
252
formal openness of registers suffered from limitations related to the very manner of managing such
registers. The entries were made chronologically in a single record covering all real estate in a given
district. Therefore, in order to determine the legal status of real estate, one had to carry out a lengthy
search and thus the importance of records of that time as the source of information about the legal
status of real estate was limited.
The access right to certain information – in particular concerning the legal status of real estate,
as well as the manner of registering ownership titles changed over the time and was determined
primarily by the political regime. Following the collapse of communism in Poland, the authorities
decided to restore the appropriate significance of the institution of real estate and mortgage registers
and their management was again handed over to courts. The transfer of real estate and mortgage
registers to courts, which were not ready – from the organisational point of view – to handle such task,
paralysed the system and triggered the accumulation of backlog. The specific purpose of the registers’
reform, initiated in the middle of the nineties of the XXth century, was to lead to a more efficient
access to the registry data and to increase its quality. It was concluded that the management of a
registry by traditional methods does not ensure the security of trade – it does not guarantee the
immediate acquisition of information and a quick registration of titles.
As of present the basic legal act that regulates the managing of real estate and mortgage
registers is the Law of July 6th 1982 on Real Estate and Mortgage Registers43 (hereinafter referred to as
REMRL), amended several times. In accordance with art. 251 of REMRL, real estate and mortgage
registers may be established and managed also in the computer system.
The reform of the real estate and mortgage registers’ system related to its informatization has
led to the change of the real estate and mortgage registers’ structure; in order to ensure the continuity
of the real estate and mortgage registers’ institution following the introduction of the computer system,
it became necessary to transfer the contents of the hitherto real estate and mortgage registers to their
informatised structure, that is the so-called real estate and mortgage registers’ migration. The outcome
of the migration law’s44 entry into force was the emergence of a temporary two-track system of
managing real estate and mortgage registers, effective until the completion of informatization of all
real estate and mortgage registers: the traditional and the informatised one. The access to the contents
of a real estate and mortgage register is therefore determined by the fact, whether a given real estate
and mortgage registers’ division has already been informatised and whether a given real estate and
mortgage register has already been migrated.
Access to information about real estate comprised in the traditional real estate and mortgage
register
In accordance with art. 362 of REMRL, applicants may obtain transcripts from real estate and
mortgage registers regarding the latest status of entries, transcripts comprising erased entries, as well
as transcripts of documents included in the files of the real estate and mortgage registers.
Transcripts from the traditional (printed) real estate and mortgage registers, concerning the
latest status of entries (that is the current status of the individual sections of the real estate and
mortgage register – all non-erased entries) and the transcripts of documents included in the files of the
real estate and mortgage register are issued at the request of the interested individual or at the request
of a court, a public prosecutor, a notary public, the state administration institution and the local
government institution. The individual interested in the issue of a transcript is each person, for the
benefit of whom there are titles, warnings, material rights and claims, notices of application entered to
the register, and everyone, who may demand the reconciliation of the legal status disclosed in the real
estate and mortgage register with the actual legal status. The individual interested in the issue of the
transcript may also be the person with no legal interest in reviewing the real estate and mortgage
register’s files45.
43
Ustawa z 6 lipca 1982 r. o księgach wieczystych i hipotece (Dz.U. z 2001 r. No 124, position 1361 with the amendments)
Ustawa z dnia 14 lutego 2003 r. o przenoszeniu treści księgi wieczystej do struktury księgi wieczystej prowadzonej w
systemie informatycznym (Dz.U.2003 no 42 position. 363)
45
S. Rudnicki, Ustawa o księgach wieczystych i hipotece. Przepisy o postępowaniu w sprawach wieczystoksięgowych.
Komentarz, Warszawa 2006, str. 207
44
253
Complete transcripts, which are transcripts from real estate and mortgage registers comprising
erased entries, are issued only at the request of a court, a public prosecutor, a notary public, the state
administration institution and the local government institution, and in substantiated cases – also at the
request of an individual, whom the erased entry referred to.
The public character of real estate and mortgage registers and their significance require the
implementation of certain organisational measures to ensure their protection and therefore the files of
real estate and mortgage registers, constituting usually the basis of entries, are subject to such
protection. As the access to information comprised in real estate and mortgage registers is guaranteed,
and the registers show the legal status of a real estate, the access to files is therefore not necessary. For
this reason, if one wants to review the real estate and mortgage register’s files, one must have a special
legal interest and should be easily able to provide evidence for it.
Until the completion of informatization of the real estate and mortgage registers’ division46,
the application for a transcript from the real estate and mortgage register or the certificate on its
closure may be obtained by the applicant upon submitting the application to the appropriate real estate
and mortgage registers’ division managing a given real estate and mortgage register. The transcript is
prepared and issued by the authorised court officers – it is prepared in writing or printed out from the
Fenix system. The hitherto real estate and mortgage registers may be reviewed in the secretaries’
offices of the real estate and mortgage registers’ divisions, in district courts that manage them. Real
estate and mortgage registers may not be reviewed outside court, because in accordance with art. 361
section 2 of REMRL the registers may not leave the actual premises of the district court. The
traditional real estate and mortgage register may be reviewed and transcripts from such register may
be issued only until it is transferred to the real estate and mortgage registers’ migration centre.
The access to information about real estate comprised in the electronic real estate and mortgage
register
Slightly different rules are applied to issuing transcripts from the real estate and mortgage
registers managed in the computer system.
On the basis of art. 364 of REMRL, the transcripts and certificates on the closure of registers
managed in the computer system are issued by the specially developed institution – the Central Real
Estate and Mortgage Registers Information Office (CIO) and Central Information representative
offices (CIRO).
Upon application, Central Information Office issues the transcripts of real estate and mortgage
registers managed in the computer system, as well as certificates on closing real estate and mortgage
registers; both the transcripts as well as certificates are approached to as valid court documents and
they are subject to provisions of the disposition regarding Central Real Estate and Mortgage Registers
Information Office47.
The electronic real estate and mortgage register may be also reviewed via computer in any
Central Information representative office operating at the real estate and mortgage registers’ division.
The procedure of obtaining transcripts was simplified – in order to receive the transcript or
certificate from the real estate and mortgage register, one must submit – directly or by mail – the
application made on the official form48 to the central or representative information office. Transcripts
and certificates are issued directly to the applicant by the central or representative information office.
Another important fact is that applications for transcripts and certificates may be submitted to any
informatised real estate and mortgage registers’ division, not only the one that manages a given
register.
46
Even when a given division has already implemented the computer system, it continues to issue transcripts in a traditional
manner, if the real estatereal estate and mortgage register which the application for transcript refers to has not been migrated
yet.
47
Rozporządzenie Ministra Sprawiedliwości z dnia 14 sierpnia 2003 r. w sprawie Centralnej Informacji Ksiąg Wieczystych
(Dz.U.2003 No 162 position 1571)
48
The form is available free of charge in the Central Information Office and representative offices, and the sample form is
also available on-line, on the website of the Ministry of Justice (www.ms.gov.pl).
254
Informatization has significantly increased the formal openness of real estate and mortgage
registers. The computer system rendered available the access to the electronic register and the receipt
of transcripts in any real estate and mortgage registers’ division. For the reason that now the
preparation of a transcript consists in printing out appropriate data from the system – and not a timeconsuming rewriting the contents of the register, the restrictions regarding the issue of a complete
transcript were abolished. The provision of access to the contents of a real estate and mortgage register
in the computer system via representative offices of the Central Information Office, in any real estate
and mortgage registers’ division connected to the registry system, gives to the unlimited circle of
entities the access to data disclosed therein.
The procedure of identifying and locating the desired real estate and mortgage register became
much simpler also due to the introduction of the computer system. An individual, who wants to
familiarise with the contents of entries in the CIRO, specifies the real estate and mortgage register
number and has got the option to review the register on the computer screen.
Figure 1. Searching the real estate and mortgage register via the real estate and mortgage register number
Source: author’s own study
Interested individuals may look for registers only specifying the register’s number, while the
software available for the officers of the real estate and mortgage registers’ divisions and
representative offices of the central information office allows for searching for real estate and
mortgage registers on the basis of a broader scope of data, such as an address, the land-survey mark or
the owner’s data.
Figure 2. Searching the real estate and mortgage register on the basis of data of a natural person
Source: author’s own study
In order to ensure an easier access to data concerning the legal status of real estate and to
intensify the real estate trade, one may render available to all individuals interested the possibility of
searching for real estate and mortgage registers on the basis of provided land-surveying mark (at least
the number of the parcel, the identification mark of the parcel) or the address. It is justified to maintain
255
the limitations in searching for real estate and mortgage registers using the owner-related criteria
(name and surname, statistical number PESEL), for the reason of easiness of determining the affluence
of an individual, whose data was disclosed in the real estate and mortgage register and thus the breach
of this person’s right to privacy49.
In order to facilitate the use of real estate and mortgage registers, one should change the
manner of presentation of information both on the transcripts, as well as in the System of the Central
Information Office. The transcript from the traditional real estate and mortgage register comprised a
few pages; the transcript from the electronic register is quite extensive and complicated. It is
problematic to establish the status of real estate on the basis of such documents even for practicing
lawyers, the representatives of the banking sector or intermediaries of the real estate trade sector. This
is the outcome of a faulty design of the transcript form and the separation of important and interrelated
information.
The legislator plans further changes in the access to real estate and mortgage registers’ data. In
accordance with the Plan of the Informatization of the State50, the authorities assume the development
of the currently existing website providing access and information to the register of enterprises and the
registry of liens and facilitating the on –line access to real estate and mortgage registers’ division and
the Central Real Estate and Mortgage Registers Information Office. On top of that, in accordance with
the agenda of public tasks, comprised in the Plan of the Informatization of the State, which will be
accomplished with the use of electronic systems, the state is to guarantee the handling of electronic
applications for the review of real estate and mortgage registers, as well as the possibility to
familiarise oneself with the contents of the real estate and mortgage register via Internet. In accordance
with plans, in 2010 it will also be possible to submit electronically applications for issuing transcripts
from the real estate and mortgage register, applications to make entries to the real estate and mortgage
register and to obtain information about the progress of case handled by the informatised real estate
and mortgage registers’ divisions.
Conclusion
The access right to information about the legal status of real estate, the registry institutions and
the technical manner of registering the ownership title evolved in Poland over time. However, the
basic functions of the real estate and mortgage registers – the ensuring of a secure real estate trade and
the securing of a mortgage credit – have always been a priority and therefore the endeavours of the
authorities to achieve the greatest possible openness of registers and to protect individuals acting on
the basis of the registers’ data.
The informatization of the real estate and mortgage registers contributed to the change of
methods of managing the registry and the access to the registry data. The implementation of modern
technologies guarantees quick and cheaper access to data and its connecting to other databases,
facilitating its exchange and verification.
The informatization of resources may therefore lead to the increase in not only formal, but
also material openness of the court registers. The observation of changes in the access to data
regarding the legal status of real estate in Poland allows hoping that such changes will be accompanied
also by the attempts to eliminate errors in the real estate and mortgage registers and to connect better
the real estate and mortgage registers with the lands and buildings’ registry. The elimination of
discrepancies between registers disclosing data on real estate and the guaranteed reliability of data
may also increase the material openness of the real estate and mortgage registers.
49
A. Gryszczyńska, Dostęp do danych osobowych z rejestrów sądowych [w:] Ochrona danych osobowych. Skuteczność
regulacji. Red. G. Szpor, Warszawa 2009, str. 152
50
Rozporządzenie Rady Ministrów z dnia 28 marca 2007 r. w sprawie Planu Informatyzacji Państwa na lata 2007-2010
(Dz.U.2007 nr 61 poz. 415)
256
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zadania publiczne, Warszawa 2007
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prowadzonej w systemie informatycznym (Dz.U.2003 no 42 position. 363)
Ustawa z dnia 17 lutego 2005 r. o informatyzacji działalności podmiotów realizujących zadania
publiczne (Dz.U.2005 no 64 position 565 with the amendments)
257

access to information on legal status of real estates in poland

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