Unification of gift and inheritance taxes and the protection of taxpayers – the inheritors and recipients of donations

Gift and inheritance tax in the European Union Member States is calculated and charged in numerous ways. In the majority of countries of the European Economic Community it constitutes a separate tax. In several countries it is not charged at all or is part of the income tax. Despite the attempts made by the European Commission to unify the legislation of the Member States in this regard, there has been no success. The article presents the above-mentioned attempts of the European Commission, their results and consequences. It identifies the methods of avoiding a double or even triple taxation on cross-border inheritances or donations. This is of crucial significance also to the Polish citizens who demonstrate higher and higher investment activity in the countries of the European Economic Community and third countries.

Mortgage collateralized by mortgage – a transfer or a limited property right?

Mortgage on a mortgage claim as a pledge right encumbering a relative right, contains many similarities to assignment of a mortgage claim. Consequently, it is often wrongly identified with a transitive acquisition, which influences the misdefinition of its essence, construction and the scope of powers of the subject to which it is granted. As a result of the creation of a mortgage on a mortgage claim, there is a constitutional acquisition. Despite the loss of certain rights and their transfer to the subintabulated creditor, its creation is equivalent to the creation of a new limited property right. It does not affect the deprivation of legal existence of both the obligation from which the encumbered claim is derived and the mortgage securing it.

Modern legal solutions in Estonia's judicial land registers as an example of effective use of IT instruments as well as IT and legal cooperation

In search of interesting legal solutions related to the modern and effective functioning of legal land registers, the author draws attention to IT solutions used in Estonia, which has been one of the most technologically advanced countries in Europe for over fifteen years. This solution can be treated as an exemplary solution in the search for an idea for the organizational and legal strategy of the next stages of informatization of court registers. The study briefly describes the history of the development of land e-registers, with particular emphasis on legislative and technical solutions that allow for the comprehensive digitization of the application process for entry, the use of digital documents and e-archives, with an emphasis on the elimination of the paper form of land and mortgage registers. In the further part of the study, reference was made to the e-Notariat and Immovable Portal solutions, using the X-Road as operating system, which helps to exchange, check and update data. These innovations in Estonian land register translate, among others, into for regular ex officio updating of entries including factual data on real estate and data included in the population register (e.g. change of the surname of the owner in a legal event such as a marriage). The summary of the analysis is the assessment which shows that Estonia is a very good model in searching for ideas to improve the functioning of land register in Poland, however, one should take into account the differences related to the level of technological advancement or the area of the state. The susceptibility to cyber-attacks, which also target e-Estonia, is not without significance, which follows computerization and Internet addiction in the public sphere. Therefore, the harmonious development of cybersecurity is also important. It is necessary to balance the proportions between following the registers with the expectations of society and the spirit of the times, and the security of public data.

Notice of adjustment of the annual fee for perpetual usufruct of real property

The title to perpetual usufruct is regulated under Articles 232 to 243 of the Civil Code and in the Act of 21 August 1997 on Real Property Management. One of the characteristic features of this right is the obligation, on the part of the perpetual usufructuary, to pay an annual fee. The Act on Real Property Management prescribes that this fee may be updated by the competent public administration body acting on behalf of the real property owner. An analysis of provisions regulating the proceedings initiated by the filing of the notice of adjustment of the existing fee leads to the conclusion that the regulation in question is neither precise, nor clear. An additional difficulty lies in non-specification of legal consequences for a defective adjustment of the existing fee. This article puts forward a proposal for a solution to the most important practical difficulties associated with adjustment of the existing annual fee for perpetual usufruct.

Administration of an attached property in court enforcement proceedings

The article deals with the issues related to the legal regulation of the management exercised over the real estate after its seizure in the course of court enforcement proceedings.

Glossary to the resolution of the Supreme Administrative Court of February 22.2021, file ref. act I OPS 1/20, CBOSA

The gloss concerns the Act of the Supreme Administrative Court of Poland of 22 February 2021, case no. I OPS 1/20, stating that “the compensation mentioned in Article 36(1) of the Act of 12 March 1958 on the rules and mode of expropriation of real estate (Dz. U. of 1974 No.10, pos. 64 as amended) from 1 January 1998 may be determined on the basis of Article 129(5)(3) of the Act of 21 August 1997 on real estate economy (Dz. U. of 2020, pos. 65 as amended) for the heir of the property listed in Article 35(1) of the Act of 12 March 1958 on the rules and mode of expropriation of real estate.” Moreover, it states that “the compensation mentioned in Article 36(1) of the Act of 12 March 1958 on the rules and mode of expropriation of real estate must not be determined on the basis of Article 129(5)(3) of the Act of 21 August 1997 on real estate economy (Dz. U. of 2020, pos. 65 as amended) in favour of the real estate purchaser by an agreement concluded after the day of the temporary occupation of this real estate in the mode identified in Article 35(1) of 12 March 1958 on the rules and mode of expropriation of real estate.”

Directions of the development of judicature of the Supreme Court in cases regarding real estate in 2020 (pt II)

The article constitutes the second part of a review of judicature of the Supreme Court in 2020. It presents fundamental theses and motifs regarding the issue of real estate trade in rulings issued by the Civil Law Division of the Supreme Court, mostly concerning individual limited property rights, ownership, land registers and reprivatisation (of Warsaw lands on the basis of the Decree on Ownership and Usufruct of Land in the Area of the Capital of Warsaw of 26 October 1945). The review particularly presents the most imperative theses on the effects of joint inheritance of property by the entitled to easements, the acquisition of a quasi-transmission easement, (easement appurtenant that corresponds with transmission easement in terms of content), inter-temporal matters associated with settling mortgages, but also notions of real estate prescription.

The premise for the acquisition by acquisitive prescription of a road easement in the form of the existence of a permanent and visible device.

The institution of acquisition of land easement by acquisitive prescription has been widely discussed in recent years both in the science of law and in judicature. The statements generally concerned the broadly understood issues of land easements with the content corresponding to the transmission easement. Despite these numerous positions, it turned out that there were still several issues related to the interpretation of Art. 292 of the Civil Code causes a lot of controversy. The article attempts to explain one of them. The point is to examine whether the premise of the use of a permanent and visible device also requires a preliminary determination of the group of people who made this device. The conducted analysis leads to the conclusion that from the point of view of the premises of usucapion of the easement, it is indifferent to who erected the permanent and visible devices.

Connection of Lands, Buildings and Structures with Business Activity - Direction Of Interpretation Changes

The article presents the interpretation of the regulation of Polish Real Estate Tax resulting from the judgment of the Constitutional Tribunal of 24 February 2021, SK 39/19. In this judgment the Constitutional Tribunal questioned the current interpretation of the connection of land, building or structure with conducting business activity. The author describes necessary changes in interpretation of the regulation, which results from this ruling. The article explains who is affected by the new understanding of the regulation and what is the relationship of the new interpretation with the suspension of business activity. The major part of the considerations is devoted to the effects of the Constitutional Tribunal's judgment in relation to restrictions implemented on the conduct of economic activity in connection with the COVID-19 pandemic. The author presents the position according to which subjects who could not conduct economic activity by the regulation should not pay for this period the higher rate of property tax provided for real estate owned by entrepreneurs.

Legal and practical dimensions of the protection of areas, facilities and devices important for state security

The article discusses the legal obligations of heads of units included in the register of areas, facilities and devices subject to mandatory protection in the voivodeship. The obligation of the head of the unit to provide physical or technical protection of an object. Significant items for state security with the use of internal security services or personal and property protection agencies – that is often criticized. However, it should be remembered that the cooperation of services, guards and inspections with the private sector is necessary to obtain an appropriate level of security. In addition, practical ways to ensure the safety of areas, facilities and devices subject to mandatory protection are also presented. The current technological development does not reduce the protection of the facility only to physical protection, allowing the use of modern technical security systems in order to support the activities of specialized employees of armed security formations. Due to the above, the authors described the operation of selected technical security systems in protected facilities.