Land and mortgage register court should take notice of ownership certificates it already has for the same property
Lack of an individual certificate of conversion of perpetual usufruct of residential land in Warsaw into ownership cannot block entry of the right of ownership in the land and mortgage register, the Supreme Court of Poland held in its groundbreaking order of 23 January 2026 (case no. II CSKP 705/25).
The order was issued in a case involving disclosure in the land and mortgage register of our client’s right of ownership of Warsaw real estate which was covered by the Conversion Act 2018 (Act on Conversion of the Right of Perpetual Usufruct of Land Developed for Residential Purposes into the Right of Ownership of the Land of 20 July 2018). Previously, the lower courts had consistently refused to make an entry of the applicant’s right of ownership, on the grounds that our client (previously disclosed as a joint perpetual usufructuary of the property) must hold a certificate directed to him by name confirming the conversion of the right of perpetual usufruct into the right of ownership.
But at the time when it refused to make the entry of ownership, the land and mortgage register court had at its disposal certificates of conversion issued to the other joint perpetual usufructuaries of the same property. Those certificates confirmed that title had been converted from perpetual usufruct to ownership of the property as a whole, and the addressees of the certificates had already obtained entry of their right of ownership in the land and mortgage register with respect to their shares in the property. In our cassation appeal, which was upheld by the Supreme Court, we challenged this practice of the lower courts.
Application to disclose post-conversion right of ownership of Warsaw property
The case involved Warsaw land developed with a residential building. The right of perpetual usufruct of the land on which the building stood, held by our client’s family, was disclosed in the land and mortgage register. The joint perpetual usufructuaries of the property, in specified proportions, were the owners of the other residential units in the building, which had been separated into individual units.
Pursuant to the Conversion Act 2018, the right of perpetual usufruct of plots of Warsaw land developed for residential purposes was converted into the right of ownership of the plots as of 1 January 2019. The conversion occurred by operation of law, but under Art. 4(1) of the act, the basis for disclosure of the right of ownership of the plot in the land and mortgage register is the relevant certificate issued by the public administrative authorities. Apart from confirming the conversion of title, such certificate includes information on the amount of the conversion fee and the deadline for payment of the fee. At the administrative authority’s own initiative, it submits the certificate it has issued to the relevant land and mortgage register court, which in turn, based on the certificate, makes an entry of the right of ownership along with entry of the claim for payment of the conversion fee.
In accordance with the Conversion Act 2018, certificates confirming conversion of perpetual usufruct into ownership were issued to the owners of separate residential units, and forwarded to the land and mortgage court. The land and mortgage register court had made an entry of the converted right of ownership for a large proportion of these certificates for the same property by mid-2021. Significantly, although the certificates were addressed by name to specific owners of residential units, it was directly stated in the wording of the certificate that under the Conversion Act 2018, conversion of perpetual usufruct to ownership had occurred with respect to this Warsaw property in its entirety.
Our client’s family did not receive such a certificate, however, which the authorities claimed was because of the need to make a separate determination of the amount of the conversion fee that was owed.
In this state of affairs, the client and members of his family reached an agreement in late 2021 on partial division of the inheritance and partial lifting of the co-ownership of rights. As a result of that agreement, all of the rights (of ownership) of the Warsaw property in question held by members of the family passed to our firm’s client. The agreement, signed in the form of a notarial deed, referred to the right of ownership (because the right of perpetual usufruct had previously been converted into ownership under the Conversion Act 2018). As of the time of signing of that agreement, the client’s family still did not hold a certificate issued under the procedure provided for in the Conversion Act 2018. Based on that agreement, the notary submitted an application to the land and mortgage register court to disclose our client as the sole co-owner (apart from the owners of the units) of the real estate, while pointing out to the court that the fact of conversion of the right of perpetual usufruct held by the client (and other legal successors of the former owner) into the right of ownership is confirmed by the certificates found in the land and mortgage register files, which had been issued to the owners of the separate units, as well as the entries of their right of ownership made on the basis of the certificates.
Lower courts: Problematic issue of the requirement for an individual certificate of conversion of perpetual usufruct into ownership, as a condition for making the entry
This application was denied by the court referendary and by the common courts of the first and second instance. In each instance, the court reasoned that the client had not submitted a conversion certificate issued under Art. 4(1) of the act confirming that the former joint usufructuaries of the property, which were parties to the agreement from 2021, had become joint owners of the property. The courts also took the view that in the land and mortgage register proceeding, they could not rely on the “soundness” of the earlier entries in the land and mortgage register disclosing the conversion of perpetual usufruct into ownership.
Thus, in essence, the lower courts held that unless and until the certificate referred to in Art. 4(1) of the act is addressed separately and by name to a given perpetual usufructuary, the land and mortgage register court cannot disclose that person as the owner of the property—even though, according to the land and mortgage register itself, and the other certificates on file with the court, the right of perpetual usufruct of the property was indeed converted into ownership.
Supreme Court of Poland order of 23 January 2026 (case no. II CSKP 705/25)
We challenged this position in our cassation appeal. The Supreme Court upheld our reasoning, set aside the orders of both instances of the lower courts, and remanded the case to the land and mortgage register court for rehearing.
First, the Supreme Court pointed out that under Art. 626⁸ §2 of the Civil Procedure Code, the land and mortgage register court is required to examine the contents of the land and mortgage register in its entirety. Thus, when evaluating our client’s application and the enclosed documents, the lower courts should have examined the overall land and mortgage register maintained for the real estate. There they should have noted that the type of land and mortgage register had changed (from a register maintained for land held in perpetual usufruct and the building constituting separate real estate, into a register maintained for real estate in the form of land), and that all entries concerning perpetual usufruct had been deleted from section I-Sp of the register. These changes were introduced consistent with the first certificate issued to the owner of one of the units pursuant to the Conversion Act 2018. As the Supreme Court pointed out, these changes undoubtedly showed that the right of perpetual usufruct of the entire plot covered by the land and mortgage register had been converted into ownership of the plot—“and clearly, the conversion must have occurred in relation to the right of perpetual usufruct in its entirety, and thus also with respect to the shares in that right held by the parties to the agreement of 19 November 2021, because the Conversion Act does not provide for the possibility of converting only certain shares in the right of perpetual usufruct.”
Moreover, as the Supreme Court pointed out in the justification for its ruling, the conversion of perpetual usufruct of the plot into ownership pursuant to the Conversion Act 2018 was also confirmed by the certificates addressed to the owners of the other separate residential units. Because these certificates were found in the land and mortgage register maintained for the separate residential units, they should have been taken into consideration, mainly due to the earlier position taken by the Supreme Court that entries can be made in the land and mortgage register when the applications depend on or are directly related to the content of other land and mortgage registers, and this has to do among other things with interrelated land and mortgage registers for the units and for the common real estate. These certificates should also have been considered because they were already listed as the basis for entry of the right of co-ownership of the common real estate held by the owners of the units in the land and mortgage register maintained for the property at issue in our client’s application; thus, undoubtedly, they were covered by the contents of the land and mortgage register subject to examination by the land and mortgage register court under Civil Procedure Code Art. 626⁸ §2.
The Supreme Court also observed that in denying the client’s application, the lower courts had violated Art. 1(1) of the Act on Land and Mortgage Registers and on Mortgages, which provides that land and mortgage registers are maintained for the purpose of determining the legal status of real estate. Meanwhile, the courts at both instances had essentially solidified a situation inconsistent with the actual legal status. After all, according to the land and mortgage register, despite the conversion to ownership and despite the agreement from 2021, the client’s family members were still joint perpetual usufructuaries of the land, co-owned by a public entity and the owners of the separate residential units disclosed based on the certificates issued under the Conversion Act 2018. As the Supreme Court pointed out, the lower courts had done this “by placing their expectations as to submission of certain documents above the demand that the land and mortgage register should reflect the actual legal status.”
In addition, the Supreme Court reasoned, neither Art. 4(1) nor any other provision of the Conversion Act 2018 of the act foresaw that the previous joint usufructuary of the property could demonstrate conversion of the right into co-ownership solely through a certificate addressed to him by name. Thus, in the court’s view, “there should be no doubt that a certificate addressed to another joint perpetual usufructuary may also be the basis for disclosure of the conversion of the right, if it is clear from such certificate that the entire right of perpetual usufruct has been converted into the right of ownership.” In the Supreme Court’s opinion, this interpretation was dictated by the need for uniform treatment of all joint perpetual usufructuaries, in a situation where there is no doubt that the conversion involved not individual shares in the property, but the entire right of perpetual usufruct. The demand for an individually named certificate (as in the case of our client) would effectively prevent disclosure of the rights of some of the co-owners, which in turn would lead to a lasting inconsistency between the contents of the land and mortgage registers and the true legal status.
And, according to the Supreme Court, this interpretation of the Conversion Act 2018 was not inconsistent with the notion that in Art. 4(4)–(5) of the act, the certificate indicates the amount of the conversion fee due from each of the previous usufructuaries, which is the basis for disclosure of the claim for the fee in section III of the land and mortgage register. As the court explained, “Issuance of the certificate is not constitutive for the duty to pay the conversion fee to arise, as it arises directly under the act. … No provision of the act foresees any ‘security’ for the claim for payment of the fee, as would be the case if disclosure of the conversion of the right were conditioned on entry in the land and mortgage register of the claim for payment of the fee. To find otherwise would be contrary to the fundamental function of land and mortgage registers, which is to disclose the current legal status of real estate.”
Nonetheless, as the Supreme Court stated, the fact of disclosure of the converted right of ownership based on a certificate issued to another co-usufructuary does not release the administrative authority from the duty to issue a certificate to the given entity and to state there the amount of the conversion fee to be paid.
Summary
The order from the Supreme Court of Poland dated 23 January 2026 (case no. II CSKP 705/25) represents a major step toward deformalising and expediting land and mortgage register proceedings connected with conversion of the right of perpetual usufruct of land developed for residential purposes into the right of ownership. In numerous situations, similar to that in which our client was found, the previous perpetual usufructuaries could not obtain the certificates referred to in Art. 4(1) of the Conversion Act 2018 for years, due to the ongoing proceedings. For this reason, the land and mortgage register courts have consistently refused to disclose the applicants’ right of ownership in the land and mortgage register—even if the courts have already disclosed the right of ownership of the same property held by owners of other units in the building.
As the City of Warsaw states on its website, in Warsaw alone there are over 460,000 perpetual usufructuaries of land developed with residential buildings, and some of them have not yet received certificates. The order issued in our client’s case will no doubt help cut the Gordian knot and afford legal protection (by disclosing them) to the rights held by former perpetual usufructuaries, who for over seven years have not been able to obtain a certificate confirming the conversion of their right of perpetual usufruct into ownership.
For the administrative authorities to maintain their practice of delaying the issuance of certificates under the procedure of the Conversion Act 2018 (due to the overly formal practice of the land and mortgage register courts discussed above) carries the risk of far-reaching negative social and economic impacts. Hindering the ability of owners of real estate to regulate the legal status of their property causes major difficulties in management, sale, or encumbrance of these properties.
At the same time, the practice described is paralysing the work of the administrative authorities and the land and mortgage register courts, which have been forced by the legislature to issue millions of certificates and to make entries in the land and mortgage registers for properties but without awarding them the appropriate financing they need to bring the number of clerks and judges handling these procedures into line with the true needs.
A solution would be statutorily enabling clerks to issue certificates with the same wording, referring to one piece of land and constituting the basis for amending the land and mortgage registers for all of the units in the building erected on the plot. Because there is no statutory basis for issuing such “universal” certificates, the only solution has been to develop in the case law a mechanism to expedite the inefficient process of disclosing the conversion in the land and mortgage registers.
We hope that the ruling from the Supreme Court of Poland discussed in this article will lead to the development of a proper practice in the land and mortgage register courts, where a certificate issued for at least one of the owners of residential units would be a sufficient basis for making an entry of the converted right of ownership in favour of all owners of units.
Marcin Sobkowicz, adwokat, Leszek Zatyka, attorney-at-law, Reprivatisation practice, Private Client practice, Wardyński & Partners
