FIRST SECTION
DECISION
Application no. 43756/12
Maria CHILIMONIUK and Others
against Poland
The European Court of Human Rights (Fourth Section), sitting on 26 March 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Sectio Registrar,
Having regard to the above application lodged on 9 July 2012,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. They are all Polish nationals and they all live in Narew.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant and her adult children, the second, third and fourth applicants, live in a house and run a farm in Narew.
4. In 1974 the first applicant informally bought a part of plot no. 1262 from a certain J.P. in order to enlarge her farm. No deed or sale contract had been issued and the transaction had not been recorded in the land and mortgage register. In 1984 the whole plot no. 1262 was donated by J.P. and T.P. to their son S.P. by way of a notarial deed.
5. In 1989 the local authorities undertook the restructuring of rural landholdings in the commune of Narew. In this process a narrow and irregularly-shaped plot measuring 0.04 hectare (400 square metres) was severed from plot no. 1262 and acquired by the State in exchange of a State‑owned plot transferred to private parties. The plot thus severed was registered as plot no. 1114.
6. In 1990 an act adopted by the parliament created communes as self-administering entities and transferred to them ex lege the ownership of real estates fulfilling the criteria set forth in legislation (the so‑called communalisation of State ownership). On 15 April 1991 the Białystok Governor (Wojewoda) issued an administrative act certifying that plot no. 1114 owned so-far by the State had become the ownership of the Narew Commune (Gmina). Subsequently, the Narew Commune became listed as its owner in the local land and mortgage register.
7. In 2008 the local authorities destroyed the applicants’ wooden fence and shed which were situated within the boundaries of plot no. 1114. Subsequently, a tender of the plot in question was publicly advertised. The applicants’ neighbours adhered to the tender and they were officially taken for a public inspection of the land.
8. On 6 February 2009 the Narew Commune sold plot no. 1114 to the applicants’ neighbours, who consequently became listed as the land’s owners in the land and mortgage register (no. BI2P/00032084/4).
9. On 31 March 2009 the first applicant applied for a “warning” to be noted into the land and mortgage register. She omitted to specify the contents of any such notice and, later, did not comply with instructions to complete her application. Consequently, the application was returned to her without being examined.
10. On 31 March 2009 the first applicant also requested the Bialystok Governor to quash the decision of 15 April 1991 which certified that plot no. 1114 had become the ownership of the Narew Commune. On 3 November 1990 the Bialystok Governor issued a decision rejecting the request. In the reasoning he explained that the applicant had not shown that she should have been a party to the proceedings. The “communalisation” carried out in 1990 did not affect the rights of any persons possessing or using the real estates concerned. It appears that the applicants did not appeal against this decision.
11. The new owners obtained a construction permit and built a house mainly on their adjacent land and partly on plot no. 1114.
12. On 4 August 2009 the first applicant brought action for adverse possession of plot no. 1114. On 11 March 2010 the Bielsko Biała District Court (Sąd Rejonowy) dismissed the action, holding that there was insufficient evidence to prove that the first applicant had acquired the land in an informal way in 1974.
13. Following the applicant’s appeal, on 19 August 2010 the Białystok Regional Court (Sąd Okręgowy) reversed that judgment. The court established that all four applicants had possessed plot no. 1114 in bad faith since at least 31 December 1974. The court also declared that all four applicants had acquired the land by means of adverse possession as of 1 October 2005.
14. On 9 December 2010 the Mayor of the Narew Commune (Wójt) called on the applicants to pay property tax for the land. On 15 June 2012 the applicants were listed as the plot’s owners in the local land and mortgage register.
15. The applicants did not recover the actual possession of the land as their neighbours continued living there.
16. On 12 January 2012 the Białystok Regional Court issued a final ruling in the proceedings for payment which had been instituted by the applicants against the Narew Commune. The applicants sought compensation on the ground that the Narew Commune had, prior to the tender, omitted to verify the actual legal status of plot no. 1114. The appellate court dismissed the applicants’ action, holding that the commune had not acted unlawfully. In particular, all information concerning the tender of the plot in question had been publicly advertised. There were no grounds to conclude that the commune ought to have known at the material time that the ownership of the plot in question had been acquired by the plaintiffs by way of adverse possession. Under the applicable law, vendors were not obliged to take far-reaching actions in order to verify the actual status of property which was subject to sale. In the circumstances of the case, it was therefore concluded that the Narew Commune had undertaken all actions which were required by law and which were reasonably necessary for the establishment of the legal status of the plot no. 1114.
17. On 11 July 2014 the Białystok Regional Court issued a final ruling in the proceedings for buy-out of land by possessor which had been instituted against the applicants by their neighbours. The action was dismissed as unfounded in view of the finding that, under the principle of public credibility of land and mortgage registers, the plaintiffs were in fact the lawful owners of the land in question.
18. On 30 January 2015 the Bielsko Biała District Court ordered that the local land and mortgage register be changed and that the applicants’ neighbours be listed as the owners of plot no. 1114. The applicants participated in these proceedings. On 23 October 2015 the Białystok Regional Court dismissed the applicants’ appeal against that judgment. The domestic court made the following observations. Firstly, the applicants’ neighbours had bought plot no. 1114 from the person registered as its lawful owner who, at that time, was the Narew Commune. Secondly, they had entered into that transaction in good faith, having consulted the land and mortgage register, which had not contained any warning notice about possible discrepancies with the actual legal status of property, and having visited the plot. Thirdly, the tender transaction had been publicly advertised and the applicants had not voiced any objections to the sale of the land which they had been occupying, even when the authorities had destroyed their fence and shed. The domestic court therefore concluded that the principle of public credibility of land and mortgage registers was fully applicable and prevailed. Fourthly, the court reasoned that under the domestic law the principle of credibility of land and mortgage registers was a legal basis for acquiring the ownership of land from a person who was not its legal owner but was registered as its legal owner.
B. Relevant domestic law
19. Article 3 of the Land Register Act (Ustawa o księgach wieczystych i hipotece, “the Act”) establishes a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property.
Under Article 5 of the Act, if there is a discrepancy between the title as registered in the register and the actual legal situation of the property, the person who acquired a title from a person whose title had been registered is regarded as having acquired it validly (rękojmia wiary publicznej ksiąg wieczystych).
Article 10 of the Act reads:
“If there is a discrepancy between the title or right as registered in the register and the actual legal status of the land, a person whose title or right is not registered or is registered is entitled to request a rectification of the relevant entries.
A claim for rectification of entries can be made public by registering a warning in the register. Such an entry shall be made on the basis of either a non-final judicial decision, or a judicial temporary order.”
A claim under Article 10 of the Act should be submitted to the court in ordinary contentious proceedings.
20. The land registers are run by the Land Register Divisions of the District Courts. Article 24 provides that a separate file shall be opened for each property. Pursuant to Article 25, the files shall be divided into four sections. The first section shall identify the real property. The second chapter shall name its owner or owners. The third section shall list rights in rem and other rights of third parties encumbering the property, and the fourth section shall contain entries concerning mortgages.
21. Article 37 of the Act provides that the court shall examine, in non-contentious proceedings, motions to have entries made in the register. The applicable provisions of the Code of Criminal Procedure shall be applied in such proceedings, with the changes provided for by the Land Register Act.
Under Article 38 of the Act, the court shall order that an entry be made in the register exclusively upon the motion of a party, or ex officio if the law expressly provides for it. Such a motion can be submitted by a person who has a legal interest in having her or his rights or obligations registered.
Pursuant to Article 46 of the Act, when examining a motion to have an entry made in the register, the court shall confine itself to examining the contents of the motion, the documents submitted with it and the existing entries in the register.
22. Other relevant provisions of domestic law are set out in Rompa v. Poland (dec.), no. 29679/96, 16 December 1999).
COMPLAINTS
23. The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that despite the domestic court’s judgment granting them the ownership of plot no. 1114, the land at issue had been registered in the name of their neighbours.
24. The first applicant also complains under Article 8 of the Convention that because plot no. 1114 was detached from her adjacent property and sold to third parties, she will not be able to build a second family house there and to peacefully enjoy her old age in the company of her children and grandchildren.
THE LAW
A. Complaint under Article 1 of Protocol No. 1
25. The applicants complain that despite their acquisition of the ownership of plot no. 1114 by means of adverse possession (as recognised by the domestic court), the land had in fact been occupied and formally acquired by their neighbours. The applicant had consequently been prevented from gaining access to the land, from using it and from obtaining financial compensation for the loss. According to the applicants, the sale of the plot by the commune had been unlawful.
The applicants invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
26. There is no doubt that the Narew Commune had lawfully acquired the ownership of plot no. 1114 in 1989 in the process of restructuring rural landholdings. Subsequently, the Białystok Regional Court established (see paragraph 9 above) that the applicants had acquired the ownership of plot no. 1114 by means of adverse possession in bad faith as of 1 October 2005. In other words, the domestic court found retrospectively that the time which had elapsed by the latter date had had the effect of vesting in the applicants a proprietary interest in the peaceful enjoyment of the land at issue. The applicants were taxed for that property and in 2012 they were listed as the plot’s owners in the local register (see paragraph 9 in fine above). However, as established by the judgments of domestic courts, the applicants neighbours had in the meantime (in 2009) acquired lawfully the ownership of plot no. 1114 and started to occupy it. In the light of the Convention organs’ case-law, the legal position of the applicants as of 1 October 2005 may be seen as a “possession” within the meaning of the rule expressed in the first sentence of Article 1 of Protocol No. 1 (see, mutatis mutandis, Depalle v. France [GC], no. 34044/02, § 68, ECHR 2010), even if its legal existence has been established by the domestic courts only after the alleged interference took place
27. The applicants’ complaint is multifaceted. Firstly, it is directed against the domestic court’s 2012 decision not to grant the applicants any payment for the allegedly unlawful sale of their land by the local government, the Narew Commune (see paragraph 11 above). Secondly, it concerns the outcome of the proceedings between the applicants and their neighbours, namely the courts’ rulings of 2014, on the buy-out of the land by possessor (see paragraph 12 above) and of 2015, on the rectification of the relevant entry in the land and mortgage register (see paragraph 13 above). Overall, however, in view of the grounds on which each of the above-mentioned judgments were based, it is right to perceive the applicants’ complaint as essentially directed against the terms of the relevant legislation on land and mortgage registration and, particularly, against the principle of public credibility of such registers (see paragraph 14 above) as it was applied in the applicants’ situation.
28. The responsibility of the State in the present case is therefore not direct responsibility for an executive or legislative act aimed at the applicants, but rather their responsibility for legislation which is activated as a result of the interactions of local governments with private individuals or among private individuals (compare, mutatis mutandis, with J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, §§ 56 and 57, ECHR 2007‑III).
29. The statutory provisions in question regulate questions of property title in a system which establishes a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property and offers remedies if there is a discrepancy between the title as registered in the register and the actual legal situation of the property (see paragraphs 14-16 above). Applied in the instant case, these provisions undeniably resulted in an interference with the applicants’ right to peaceful enjoyment of their possessions in that the applicants’ neighbours acquired the ownership of plot no. 1114 in 2009 and took possession of it and have been since 2015 listed as the owners, despite the fact that the 2010 judgment retrospectively recognised the acquisition of the property by the applicants.
30. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. It follows that the issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, amongst many other authorities, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).
31. In the instant case the measure complained of was based on the relevant provisions of the 1969 Civil Code and the 1982 Land Register Act. The first applicant’s title to plot no. 1114 derived from an informal transaction, concluded in the 1970s (see paragraph 3 above). The first applicant knew or should have known that no binding legal effect could derive from the transfer of ownership or the contract of sale which had not been notarised and recorded in the land and mortgage register.
32. The applicants argue that around the time of the tender procedure, the State had failed to take steps to ensure that the actual legal status of plot no. 1114 (possession by the applicants) corresponded to the official records. It must be noted, however, that the Narew Commune had been the legal owner of the plot in question prior to 1 October 2005 and at the material time, no reasonable grounds existed for the commune to consider that it had not remained the owner of that plot after that date. Moreover, the applicants could have taken various steps, prior to 2009, in order to secure their claim and to ultimately obtain legal title to the land. Firstly, they could have had it officially notified, by means of a warning notice, that the records in the land and mortgage register had not reflected the actual legal status of the plot. The first applicant in fact triggered such a procedure, but only six months after the impugned sale and without formally completing it (see paragraph 9 above). Secondly, the applicants could have contested the tender procedure once it was publicly advertised or once the authorities removed their wooden constructions from plot no. 1114 (see paragraph 7 above). They have not availed themselves of such an opportunity provided under the applicable law (i.e. the Cabinet’s Ordinance of 14 September 2004 on rules and procedure for conducting tenders for the sale of property). Thirdly, the applicants could have tried to have their adverse possession confirmed by the courts earlier on and, consequently, to have the Commune struck off the land-register altogether. The first applicant, in fact, embarked on such a procedure, but only on 4 August 2009 (see paragraph 12 above), many months after the sale of the land had been concluded. Consequently, the discrepancy between the ownership status of the property as certified by the land-register (the Narew Commune since 1991) and its status as determined by the 2010 court judgment (the applicants since 2005) had occurred only retroactively. Because of the particular sequence of events as described above, which can only be attributed to the applicants’ passive attitude, the 2010 ruling, even though binding, did not render the 2009 sale unlawful or otherwise invalid.
33. To resolve the latter issue, the applicants became parties to three sets of civil proceedings (see paragraphs 16-18 above). Each of these sets ended with the ruling (judgments of 2012, 2014 and 2015) to the effect that, in the circumstances of the case, the presumption of the public credibility of land and mortgage registers had not been rebutted and the applicants’ neighbours were, in fact, the lawful owners of plot no. 1114. In particular, various domestic courts held independently from each other that: (a) the Narew Commune had undertaken all actions which were required by law and which were reasonably necessary for the establishment of the legal status of the property in question; (b) the applicants’ neighbours had adhered to the tender in good faith, having consulted the land and mortgage register (which had not contained any warning notice about any possible discrepancies with the actual legal status of property) and having visited the plot; and/or (c) the applicants had not recorded any formal objections to the sale.
34. Under these circumstances, the Court considers that the applicants have not shown that the reasoning of the domestic courts was arbitrary or that any elements which might have led to a different conclusion were disregarded by them. It follows that the interference complained of was provided for by law within the meaning of Article 1 of Protocol No. 1.
35. Moreover, it must be observed that plot no. 1114 constituted only a small added value to the applicants’ adjacent land, being relatively small, narrow and irregularly-shaped, and having been used by the applicants in the past only as a place for a wooden shed.
36. Lastly, it is clear, in the circumstances of the case, that the applicants’ lack of formal, targeted and timely actions had a determinant influence on the final outcome of the domestic ligation.
37. Having regard to all the foregoing considerations, the Court considers that that the applicants did not bear an individual and excessive burden when their fence and shed were demolished and when plot no. 1114 was sold to a third party with no compensation. Accordingly, the balance between the interests of the community and those of the applicants was not upset (see, mutatis mutandis, Depalle, cited above, §§ 82-93). Moreover, the State has offered the applicants a whole panoply of remedies and procedural guarantees to ensure that they could present their case for the examination by the domestic courts. These courts, in turn, cannot be reproached, in the circumstances of the case, as stated above, for having adjudicated the applicants’ case ineffectively or unfairly.
38. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaints under Articles 6 and 8 of the Convention
39. The applicants further alleged that the deprivation of plot no. 1114 also amounted to a violation of articles 6 and 8 of the Convention, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home (...).
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
40. Having regard to its findings under Article 1 of Protocol No. 1, the Court considers that, in the circumstances of the present case, the impugned sale of plot no. 1114 does not raise any separate issues under Articles 6 or 8 of the Convention (see, mutatis mutandis, Depalle, cited above, § 96).
41. Accordingly, these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 April 2019.
Renata DegenerKsenija Turković
Deputy RegistrarPresident
Appendix
Maria CHILIMONIUK was born on 01/06/1948; Marek CHILIMONIUK was born on 12/01/1970; Piotr CHILIMONIUK was born on 03/11/1981; Dorota KURKILAHTI was born on 02/01/1976.
Full & Egal Universal Law Academy