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Косински Э.
ЭКОНОМИКА ОБЩЕСТВЕННОГО ЖИЛИЩНОГО СТРОИТЕЛЬСТВА В ПОЛЬШЕ. ПРАВОВЫЕ АСПЕКТЫ
Kosinski Е.
PUBLIC HOUSING ECONOMY IN POLAND. LEGAL PROBLEMS
Ключевые слова: административное управление в жилищном секторе, недвижимость, экономическое регулирование жилищного строительства в Польше.
Keywords: administrative management in housing sector, real estate, economic regulation of housing construction in Poland.
Аннотация: в работе рассматриваются особенности экономико-правового регулирования сектора жилищного строительства в Польше. Приводятся разграничения базовых понятий, нормативные акты и экономические механизмы управления по слияниям и разделению недвижимости, конфискациям собственности, восстановлению конфискованной собственности, участию в создании производственной инфраструктуры региона.
Abstract: in work features of economical and legal regulation of sector of housing construction in Poland are considered. Differentiations of basic concepts, regulations and economic mechanisms of management on merges and division of real estate, confiscations of property, restoration of the confiscated property, participation in creation of production infrastructure of the region are given.
I. Introduction
The real estate (immovable property, realty) economy and management in Poland is generally regulated by the act of 21 August1997 on realestateadministration (REA act)1.
According to Wikipedia "real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; (also) an item of real property; (more generally) buildings or housing in general. Also: the business of real estate; the profession of buying, selling, or renting land, buildings or housing". The term "real estate" as such is a legal term used in jurisdictions for example like the United States, United Kingdom, Canada, Nigeria, Australia, and New Zealand .
In Poland the above-mentioned act on real estate administration (REA act) defines the realestate administration as administration of real estate owned by the State and territorial self-government's units, and, moreover,
1 Consolidated version: Official Journal of 2014, sec. 518.
2 See: http://en.wikipedia.org/wiki/Real estate (16.09.2014).
partitions of real estate, mergers and partitions of real estate, calling for pre-emption, expropriations, restoration of expropriated property, participation in building of technical infrastructure, valuation of real estate, and, at the end, regulation of all liberal professions related to real estate administration.
In is quite certain that some of listed elements of definition of the real estate administration can hardly be regarded as administration in fact (for example, a valuation (estimating a price) of real estate cannot be truly treated as strict management of real estate).
The term of "housing" (or "housing administration", "housing economy") seems to be much narrower by nature. Firstly, there is a different particular goal of housing. Secondly, the material scope of housing is more narrow than the scope of real estate management. Thirdly, the personal scope of housing is much different from the scope of real estate administration. There are different units and bodies responsible, under the law, for conducting a proper public housing policy, and there is a different set of public bodies responsible for real estate administration
in Poland. So, we can firmly state that housing and real estate administration are far from being the same in terms of terminology. However, one may say, that housing partly belongs to the real estate administration - it constitutes somehow a certain part of real estate administration.
The goal of public housing is described as current and lasting satisfaction of needs of a community in anarea of housing by means of an appropriate public housing policy.
Public housing comprises an area of programming and planning, passing local normative acts (providing for rules on renting premises andrental charges' levels), building of houses, administration of existing houses (including, among others, repairs and reconditioning) and rendering the premises to all households that are in need of housing (the supply side of the market).
According to art. 166 sec. 1 of the Constitution of Republic of Poland1 „public tasks that are aimed to satisfy the territorial self-government community are realized by the territorial self-government units as specific tasks of their own"2.Furthermore, art. 7 sec. 1 of the act of 8 March 1990 on the communes' territorial self-government (CTSG act) , art. 4 sec. 1 of the act of 5 June 1998 on the counties' 4 territorial self-government5, and art. 14 sec. 1 of the act of 5 June 1998 on the voievodships'6 territorial self-government
n
(VTSG act) points out certain public tasks laid upon territorial self-government units in Poland. Under art. 7 sec. 1 of the act on the communes' territorial self-governmenta
1 Constitution of Polish Republic of 2 April 1997. Official Journal of 1997, No. 78, sec. 483 with further amendments.
2 In Poland there are three levels of the territorial self-government. At the bottom there are communes (Polish: gminy). There are 2479 communes (2014). In the middle there are counties (Polish: powiaty). There are 314 counties and 66 cities with the rights of a county in Poland (total number of counties: 380). On the top there are voievodships (regions; Polish: wojewodztwa). There are 16 voievodships in Poland.
3 Consolidated version: Official Journal of 2013, sec.
594 with further amendments.
4 Polish: powiaty.
5 Consolidated version: Official Journal of 2013 r.,
595 with further amendments.
6 Polish: wojewodztwa.
7 Consolidated version: Official Journal of 2013 r.,
sec. 596 with further amendments.
satisfaction of collective needs of the community belongs to the tasks of the commune of its own. Under art. 4 sec. 1 of the act on the counties'territorial self-government a county realizes tasks defined by laws of more than commune's meaning (in another words, these are tasks of a greater meaning, going beyond one commune's interest, dealing with an interest of many communes).Furthermore, according to art. 14 sec. 1 of act on the voievodships' territorial self-government these self-government units realize tasks of voievodsips prescribed by laws (in another words, there are regional interests involved).
In is noteworthy that the act of 8 March 1990 on the communes' territorial self-government (CTSG act) is using the term of "public utility tasks" in its articles: 7 (sec. 1) and 9 (sections 3 and 4). Under art. 7 sec. 1 of the CTSG act public utility tasks are defined as those tasks of the communes of their own, which are aimed at the current and lasting satisfaction of collective needs of people by means of rendering the services that are universally available (so-called universal services). This definition is repeated by the act of 20 December 1996 on territorial self-government economy (TSGE act)8. Under art. 1 sec. 2 TSGE act the territorial self-government economy embodies, in particular, public utility tasks that are aimed at a current and lasting satisfaction of collective needs of people by means of rendering the services that are universally available. Moreover, section 1 of art. 1 of TSGE actstates that the scope of regulation of this act encompasses the rules and forms of the territorial self-government economy of the self-government units that relate to accomplishment by those units of the tasks of their own with the aim to satisfy the collective needs of the community.
It is relevant to point that the community must be understood in a broad meaning. It encompasses not only persons that stay permanently on the territory of a certain commune (persons that are formally registered as inhabitants of a given commune under the appropriate law; persons with permanent address), but also persons who stay there without completing any formalities. The major criterion here is a real need that must be
8 Consolidated version: Official Journal of 2011, No. 45, sec. 236.
Вестник Волжского университета имени В.Н. satisfied1.
Furthermore, the material scope of public housing comprises the real estates that are included into the real estate supply (assets) of the territorial self-government units. Nevertheless, these are only those real estates which may be used for public housing purpose (as to satisfy households' needs in the area of housing). The supply (fund) of real estate means those real estates which are owned the State, communes, counties or voievidships, and that are not subject of the so-called perpetualusufruct (close to hereditary tenure) in favour of other parties, and those real estates that are subject of perpetual usufruct of the State, communes, counties or voievidships (see art. 4 point 1 REA act).
The term „housing supply (assets)", so to say the strict subject of public housing, is introduced to Polish law by the act of 21 June 2001 r. on securing the rights of tenants, commune's housing supply, and on amendment of Civil Code (SRT act)2.
According to art. 2 point 10 of the above-mentioned act (SRT act) the commune's housing supply means all premises belonging to the commune's assets, or to the other commune's units (with legal personality), or to private law companies owned by the commune (with a commune's participation),excluding so-called social building societies.
As we can see, the SRT act is using the term of „premises" as the basic and fundamental object to serve in the field of satisfaction of housing needs of households (individuals).
The "premises" are defined as room assigned to satisfy housing needs, and a room that is used for activity in the field of culture and arts. Any premises assigned for short-term
1 See various decisions of the Polish administrative courts: Supreme Administrative Court (SAC) of 23 November 2005, I OSK 1029/05 (LEX No. 196758), SAC of24 January 2012, I OSK 2012/11 (LEX No. 1120647), Voievodship Administrative Court (VAC) in Gliwiceof12 April 2012, II SA/Gl 827/11.
2 Consolidated version: Official Journal of 2014, sec.
150. It is noted in Polish legal literature that commune's housing supply constitutes a real estate supply of an administrative nature, not of a civil (private) law nature
(see arts. 44 and following of Polish Civil Code). A. Doliwa, Prawo mieszkaniowe. Komentarz, Warszawa 2012, pp. 260-261.
visit (stay without residence), like for instance:boarding-schools, dormitories, motels, hotels, bed-and-breakfast places, rest homes, nursing homes, pensions (boarding-houses), and any other places of a touristic or resting nature, are nor regarded to be "premises" (art. 2 sec. 1 point 4SRT act).
Moreover, the SRT act distinguishes certain particular categories of premises (housing premises): "social premises" and "substitutional premises", and the separate category: "temporary premises".
The "social premises" are defined as premises that are sufficient for dwelling due to its equipment and technical state, and which living space in not less than 5 m2per one inhabitant of a household (per one tenant). If the household constitutes of a one person only, the living space cannot be less than 10 m2. What more, the social premises may be of a lower standard than regular (art. 2 sec. 1 point 5SRT act).
"Substitutional premises" are defined as premises placed in the same city (village), in which there was placed a previous dwelling of a given household, that is equipped with at least the same devices (appliances) as the previous premises were, and with the same living space of all rooms as the living space of previous premises. This latter condition is regarded to be met if there is minimum 10 m2of living space (including all rooms) per one tenant, or minimum 20 m2 in case when the household consists only of one person (art. 2 sec. 1 point 6SRT act).
Then, "temporary premises" are defined as premises suitable for dwelling, furnished with tap water source and a toilet, even those utilities ale placed outside the main building. Additionally, temporary premises must be furnished with both natural and electric light sources, heating, dry (without moisture) dividing walls, and a possibility to install any kind of cooking devices. In case of temporary premises a living space must be of minimum 5 m2per one person. Temporary premises should be located, if possible, in the same city (village) or in the neighbouring area (vicinity). So it is clear that temporary premises differentiate from social premise not because of an obligatory living space per one tenant (in both cases it is minimum 5 m2), but because of a standard and quality of whole building or construction where the premises take place.
The SRT act does not define the term of "premises". Neither does Polish Civil Code1. Especially, the term of premises is not defined in articles 680 and following of Civil Code (providing for regulation of a contract of renting).
Nevertheless, the term of "premises" is defined by the act of 24 June 1994 on the ownership of premises (OP act) . Under art. 2 sec. 2 of the mentioned act the independent premises mean room or number of rooms separated by permanent walls within the given building, assigned for permanent residence of people, which together with other rooms of an auxiliary nature serve to satisfy housing needs . This definition is used as well for the independent premises that are utilized for other than housing purposes (for example for business purpose). Furthermore, according to art. 2 sec. 4 of OP act there may be other rooms belonging to premises as their parts, even though they do not really adjoin to those premises or are placed outside the building, like cellars, basements, garrets, attics, cubby-holes, receptacles etc. (they are called under the OP act as "belonging premises").
The OP act underlines firmly that above-mentioned definition serves exclusively for this act's purposes (internal nature of a legal definition; art. 2 sec. 2 OP act).
In the past legal regulations of the area at stake were named "Law on premises" due to the title of the act of 10 April 1974 Law on premises (LP act)4, and other previous acts.This pointed act defined terms of: "dwelling premises" (art. 5 sec. 1) and "business premises" (art. 5 sec. 3), and additionally, it introduced such terms as: "substitutional dwelling premises" (art. 6 sec. 1) and "substitutional dwelling room" (art. 7 sec. 1). Both dwelling premises and business premises should have been so-called "independent premises".
The term "independent dwelling premises" were defined by the LP act as a number of chambers separated within the building by
1 The act of 23 April 1964 - Civil Code. Consolidated version: Official Journal of 2014, sec. 121 with further amendments.
2 Consolidated version: Official Journal of 2000, No. 80, sec. 903 with further amendments.
3 See A. Doliwa, op. cit., p. 588 and following.
4 Official Journal of 2000, No. 14, sec. 84 with further amendments.
permanent walls, together with auxiliary premises, where residence does not require use of any rooms placed in other premises (art. 5 sec. 2 of the LP act).
Earlier regulations as the act of 30 January 1959 Law on premises5, the decree of 28 July 1948 r. on renting of premises6, or the decreeof 21 December 1945 on public administration of premises7, did not define the term of "premises", either. Such a definition was placed in the regulation of the President of Polish Republic of 24 October 1934 on the ownership of premises8.
The terminology of the discussed area is enriched (or one may say: complicated) by some other terms, provided by different specific laws. Firstly, the act of 12 March 2004 on social aid (SA act)9 introduces the term of „protected dwelling" (art. 53 secs. 1-4 of the SA act). According to this regulation „protected dwelling" means a form of social aid that is assigned for preparing tenants to conduct independent life, under the attention of specialists, or substituting a residence in the 24-hour nursing home; protected dwelling secures proper conditions for an independent life in a given environment, in coexistence with a local population (art. 53 sec. 2of the SA act). The right of residence in a protected dwelling may be granted to a person who requires help on a daily basis due to his/her disability, difficult life situation, age or sickness, but who does not require 24-hour nursing like, in particular, persons with mental disorders, etc.
Protected dwellings' administration may be undertaken by proper social aid (social care) unitsor non-profit NGOs (art. 53 sec. 3 of the SA act)10. The term of "protected dwelling" is also
5 Consolidated version: Official Journal of 1962, No. 47, sec. 227.
6 Consolidated version: Official Journal of 1958, No. 50, sec. 243.
7 Consolidated version: Official Journal of 1950, No. 36, sec. 343.
8 Official Journal of 1943, No. 94, sec. 848 with further amendments.
9 Consolidated version: Official Journal of 2013, sec. 182with further amendments.
10 Specific rules on sort and scope of aid provided within protected dwellings and conditions under which certain persons may be directed and may stay in protected dwellings are prescribed by the regulation of Minister of Labor and Social Policy of 14 March 2012 onprotected dwellings (Official Journal of 2012, sec.
used by the act of 8 December 2006 onfinancial support for creation of social premises, protected dwellings, hostels (lodging houses), and houses for homeless people (FSCSP act)1. This mentioned act directly refers to definitions provided by the SA act (art. 2 point 4 of the FSCSP act).
The act of 8 December 2006 on financial support for creation of social premises, protected dwellings, hostels (lodging houses), and houses for homeless people introduces additional, specific terms as: a hostel (lodging house) and a house for homeless people.
A hostel means building or separated part of a building, assigned for provision of lodging to homeless people, together with auxiliary premises necessary in terms of appropriate functioning of a hostel (art. 2 sec. 2 of the FSCSP act). Then a house for homeless people means building or separated part of a building, assigned for provision of 24-hour shelter for homeless people, together with auxiliary premises necessary in terms of appropriate functioning of a house (art. 2 sec. 3 of the FSCSP act).
II. Units charged with obligation to provide public housing in Poland
Generally speaking in Poland a legal obligation to provide public housing to citizens (households) is vested upon a commune (the lowest unit of the territorial self-government).
A county (Polish: powiat), under the act of 5 June 1998 oncounties' territorial self-government, is charged with public tasks of a higher level (meaning of an importance of many communes), including administration of real estates (art. 4 sec. 1 point 10of the act of on counties'territorial self-government). Nevertheless, the CTSG act does not mention anywhere a task in the field of public housing.
Finally, voievodships(voievodships' territorial self-government) are not even charged with a task in the field of real estate administration (see art. 14 sec. 1 of the act of 5 June 1998 on the voievodships' territorial self-government; VTSG act).
In Poland communes are charged with general obligation to satisfy collective needs of the community. Among those general tasks there
305).
1 Official Journal of 2006, No. 251, sec. 1844 with further amendments.
are: a task of real estate administration (art. 7 sec. 1 point 1 of the act of 8 march on communes' territorial self-government; CTSG act) and a taskof conducting communal housing development (art. 7 sec. 1 point 7 of the CTSG act). According to art. 7 of the CTSG act there are other laws to determine which tasks of a commune are of an obligatory nature2. Beyond a doubt neither real estate administration nor undertaking communal housing development can be treated as obligatory tasks.
Approaching the main subject, namely public housing and an obligation to provide public housing to citizens (households), the first steps must be directed to Polish Constitution. The task described as satisfaction of housing needs of the society is formulated in art. 75 sec. 1 of Polish Constitution. According to mentioned regulation, public authorities are obliged to conduct a policy promoting (in favour of)a satisfaction of citizens'housing needs, especially they have to counteract homelessness, to support a development of social housing and to encourage citizens' activities aimed to obtain their own apartment (home).Consequently, Polish Constitution defines one of the most important social problems of now-a-days, and it commands the government to undertake the appropriate policy in this area3.
Furthermore, art. 75 sec. 2 of Polish Constitutionputs on the Polish Parliament an obligation to pass a law that regulate a protection of rights of tenants.
It is important to stress that all mentioned constitutional regulations does not provide for a particular right to have a home (dwelling) or "right to havean apartment"4. Nevertheless, the Polish Constitutional Tribunal underlined the relevance
2 See broad discussion about tasks of a commune, including division into obligatory tasks and facultative tasks, in: I. Skrzydlo-Niznik, Model ustrojusamorzqdowego w Polscenatlezagadnienustrojowegoprawa-administracyjnego, Krakow 2007, p. 430 and following. Seeadditionally: P. Dobosz w: P. Chmielnicki, ed., Ustawa o samorzqdzie gminnym. Komentarz, Warszawa 2013, pp. 175-177.
3 See: W. Skrzydlo, Komentarz do art. 75 Konstytucji Rzeczypospolitej Polskiej (legal status for 01.03.2013, LEX OMEGA).
4 See, inter alia, decisions of Polish administrative courts, VAC in Warsaw: decision of 7 July 2011, II SA/Wa 1790/10 (LEX no. 1260144), or decision of 13 April 2012, II SA/Wa 2715/11 (LEX no. 1145930).
of art. 75 of Constitution. The Tribunal pointed that "right to have an apartment (dwelling)" constitutes a real determining factor of human dignity and of a standard of life. Consequently, a range of securing of this right must be at adequately high level. Generally, it marks a level of human and civilizational development of a given society. According to the Tribunal an obligation to guarantee a minimum level of a protection of rights of tenants relates to the fundamental moral basis of the Polish legal system. It touches, among others, indisposablehuman dignity guaranteed by art. 30 of Polish Constitution. Therefore, a public housing policy encouraging citizens' activities aimed to obtain their own apartment (home), development of social housing, creation of public housing supply and administration of this supply, belong to fundamental obligations of public authorities1.
The act of 21 June 2001 r. on securing the rights of tenants, commune's housing supply, and on amendment of Civil Code (SRT act),implements art. 75 sec. 2 of Polish Constitution. The SRT act imposes on a commune an obligation to provide for proper conditions to satisfy housing needs of a community (art. 4 sec. 1 of the SRT act)2. This task, with a given verbal formula, prima facie does not seem to have the same meaning as a task to satisfy housing needs of citizens (members of self-government community)3. An analysis of entire art. 4 of the SRT act allows to reach a conclusion that at present (de legelata) a commune has an obligation to satisfy housing needs only in case of low income households (poor people) and of households that truly need housing (basically, these are also poor people)4.
1 See decisions of Polish Constitutional Tribunal: decision of 12 January 2000, P 11/98 (OTK ZU no. 1/2000, sec. 3) and decision of 19 April 2005, K 4/05 (OTK ZU no. 4/A/2005, sec. 37).
2 It is rightly pointed in legal literature that such an obligation should be imposed on a commune by the act on communes' territorial self-government (CTSG act). Thisconceptisarticulatedfor exampleby E. Bonczyk-Kucharczyk, Ochrona praw lokatorow i najem lokali mieszkalnych. Komentarz, 2. Wydanie, Warszawa 2013, p. 89.
3 Thoseobligationsaretreatedinterchangeably by M.J. Nowak, Gospodarka mieszkaniowa gminy, Warszawa 2014, for example on p. 28.
4 See E. Bonczyk-Kucharczyk, op. cit., p. 90. There is a
comparison there of art. 4 sec. 1 of present SRT act and art. 4 of the previous act of 2 July 1994 on dwelling premises
renting and on housing allowances (Consolidated version:
A task to provide for proper conditions to satisfy housing needs of a community belongs to so-called a commune's own tasks. It must be stressed that a commune holds not just a key role in the discussed area, but a commune is charged with an obligation at stake exclusively5. None of other public authorities or different public bodies is charged with a given obligation. Under the SRT act a commune provides social premises and substitutional premises, and additionally satisfies housing needs of households of law incomes (art. 4 sec. 2 SRT act)6. Moreover, in case of eviction conducted by a bailiff (in course of an exaction) a commune is obliged to provide forsubstitutional premises,hostel (lodging house) or another place where there is a lodging, as far as an obligee, a debtor or any other party provided for such premises (art. 4 sec. 2a of the SRT act).
III. Ways of accomplishment of public housing. Possibilities of co-operation between a commune and private parties.
A commune realizes its obligations in the area of public housing, defined as (consisting of): a task to provide for proper conditions to satisfy housing needs of a community (art. 4 ust. 1 of the SRT act),an obligation to provide for social premises and substitutional premises, an obligation to provide low income households with dwelling premises (art. 4 sec. 2 the SRT act), and an obligation to provide for substitutional premises,hostel (lodging house) or another place where there is a lodging in case of eviction conducted by a bailiff (in course of an exaction ; art. 4 sec. 2a), by using
Official Journal of 1998, No. 120, sec. 787with further amendments). In the previous act there was a regulation which could be interpreted as imposing on a commune a task to satisfy housing needs of everybody. So a commune was somehow obliged to provide everyone who was in need with an apartment. Seeadditionally: R. Dziczek, Ochrona praw lokatorow. Dodatki mieszkaniowe. Komentarz. Wzorypozwow, Wydanie 5, Warszawa 2012, p. 154-155; see also the decision of VAC in Szczecin of 28 June 2006, II SA/Sz 304/06 (LEX no. 1955768).
5 See M.J. Nowak, op. cit., p. 29, where he writes about the key role of a commune in terms of public housing.
6 See, i.a., the decision of VAC in Gorzow Wielkopolski of 2 June 2011, II SA/Go 239/11 (LEX no. 821045).
7 See art. 1046 § 4 of Polish Civil Procedure Act (the act of 17 November 1964 - Civil Procedure Code; consolidated version: Official Journal of 2014, sec. 101 with further amendments. Such an obligation is
a commune's public housing supply or in another way (art. 4 sec. 3 of the SRT act).
Having analyzed the purview of art. 4 sec 3 of the SRT act there may be a conclusion drawn that implementation of a commune's obligation to satisfy housing needs can be done in three specific, separate ways. Firstly, a given commune may satisfy housing needs by means of its own supply (communal public housing). Secondly, a commune may use other entities' premises (so to say an outsourcing in a sense). Thirdly, a commune may use both a housing supply of its own and other entities' premises (mixed, or hybrid, way of housing provision)1.
A facultative character of a way of housing provision by a commune is underlined by art. 20 sec. 1 of the SRT act. According to the approached regulation "a commune, as to realize an obligation from art. 4 of the act, may create and possess a housing supply"2. Moreover, further regulation contained in art. 20 sec. 2a of the SRT act states that "as to realize an obligation from art. 4 of the act, a commune may rent premises from other owners and then sublet them to persons with low income"3 (low income households)4. So all pointed actions stay within a discretion of a commune.
Under art. 1 of the act of 20 December 1996 on territorial self-government economy (TSGE act), this act provides for rules and forms of a territorial self-government economy. It basically means a fulfillment by those units of their own tasks (prescribed by laws), with a goal of satisfaction of community's collective needs (art. 1 sec. 1 of the TSGE act). In particular, a territorial self-government economy encompasses tasks of a public utility character, which are aimed ata current and lasting satisfaction of collective needs of people by means of rendering the services that are universally available (universal services; art. 1 sec. 2 of the TSGE act). It must be noted that it comes out from analyses of art. 4 sec. 1, sec. 2 and sec. 2a of the SRT, and art. 7 sec. 1 point 7 of the CTSG act (a commune's obligation to undertake
alleviated when lodging is provided by an obligee, a debtor or another (third) party (see art. 4 sec. 2a the SRT act).
1 See: E. Bonczyk-Kucharczyk, op. cit., s. 93-94. See additionally: A. Doliwa, op. cit., p. 160, p. 261-263.
2 Author's own translation (E.K.).
3 Author's own translation (E.K.).
4 See, i.a., A. Doliwa, op. cit., p. 263.
building of houses) and of their purviews, that those mentioned tasks relate, even now-a-days (de legelata), to a satisfaction of people's collective needs and theyinclude universal services. It is because everybody who meets the criteria prescribed by law holds a legally guaranteed right to obtain appropriate premises (dwelling)5.
Consequently, a satisfaction of community's collective needs as prescribed by the SRT act and as a universal service, is immanently combined both with an necessary access to certain technical infrastructure (buildings, constructions,auxiliary devices), and with so-called social infrastructure6.
An accomplishment of a commune's own tasks prescribed in art. 4 sec.1, sec. 2 and sec. 2a of the SRT act, and also in art. 7 sec. 1 point 7 of the CTSG act, may take place either by so-called communal budgetary establishments (no legal entity) or by commercial companies (art. 2TSGE act). Under art. 9 sec. 1 of the territorial self-government's economy act all units of a territorial self-government may create limited liability companies or joint stock companies. They may join listed companies as well. Additionally, territorial self-government's units may establish limited partnership (Italian: societa in accomandita, German: Kommandidgessel-schaft) or limited-joint-stock partnership.
Recapitulating, as far as a form concerned a public housing may be realized by communal budgetary establishment7, or by a company - either limited liability company or joint stock company.
This described list of companies which may be established by a commune constitutes a closed list8.
5 There are many correct thoughts about public utility (universal services) tasks in: M. Szydlo, Ustawa o gospodarcekomunalnej. Komentarz, Warszawa 2008, pp. 132 and following; seeparticularly p. 138.
6 See: E. Wojciechowski, Samorzqd terytorialny w warunkach gospodarki rynkowej, Warszawa 1997, pp. 21-22. See additionally: M. Szydlo, op. cit., pp. 139-142.
7 See arts. 14-17of the act of 27 August 2009 on public finance (PF act; Consolidated version: Official Journal of 2013, sec. 885 with further amendments). According to art. 14 point 1 of the PF act: a territorial self -government unit's own tasks in the field of housing economy and administration of business premises may be realized by self-governmental budgetary establishment.
8 See: M. Szydlo, op. cit., pp. 367 and following. See a contrary standpoint, according to which a commune is
Apart from all above-mentioned ways of an accomplishment of public housing there are some other possibilities, too. Firstly, there are so-called social housing societies1. Those societies may be established either as limited liability companies, joint stock companies or co-operatives with legal entities as members. This given list is closed. There are no other possibilities (see art. 23 sec. 1 of the act of 26 October 1995 on some ways of
2 3
promotion of a home building, SWPHB2)3. There are many entities which are allowed to join a company (to be share-holders of societies), like communes and other entities. Consequently, societies may be regarded as a possible form of co-operation of public parties and private parties, so a kind of public-private partnership (PPP) in the field of public housing4.
According to art. 27 sec. 1 and sec. 2 of the SWPHB actsocial housing, societies are to build dwelling houses and to administer them. Apartments placed in houses build by societies are subject of a rent. Nevertheless, societies may also buy ready houses and rent apartments placed there. Societies are obliged torepair and to recondition buildings and apartments. Furthermore, societies may rent not only apartments, but business premises, too. Societies may also administer other buildings, belonging to other parties (under appropriate civil contracts).
According to art. 30a sec. 1 of the SWPHB act, social housing societies may rent their premises to counties, communes or communes' alliance with aim to sublet those premises to households, to run protected premises or to place there an institution for care
allowed to establish other companies (partnerships), namely commercial partnerships, in: C. Banasinski, M. Kulesza, Ustawa o gospodarcekomunalnej. Komentarz, Warszawa 2002, p. 81. The position of M.Szydloisshared by J.J. Zi^ty in: Ustawa o gospodarce komunalnej. Komentarz, Warszawa 2012, pp. 91-93.
1 Seei.a. M. Pawelczyk, P. Sokal, Ustawa o niektorych formach popierania budownictwa mieszkaniowego. Komentarz, Warszawa 2012, p. 25.
2 Consolidated version: Official Journal of 2013, sec.255.
3 See A. Doliwa, op. cit., pp. 844-845.
4 Unfortunately, most of social housing societies are financed (founded) by public parties. For example, Social Housing Society in Poznan (PTBS sp. z o.o.) in owned by
City of Poznan(99,9887% of shares belong to City of Poznan).
See:http://www.ptbs.pl/www/index.php?option=com
content&view= article&id=46&Itemid=1 (16.09.2014).
and education. The rules of co-operation between societies and communes are prescribed by a contract (art. 31of the SWPHB). It must be stressed that dwelling premises (apartments) owned by social housing societies do not belong to communes' public housing supplies5. So it may be pointed that a role and tasks of so-called social housing building is quite independent from the tasks and obligations laid upon communes. Those activities, namely social housing building realized by social housing societies and public housing tasks vested upon communes, are undertaken parallel. Nonetheless, this parallel activities are undertaken in an atmosphere of friendly coexistence.
Secondly, there are co-called social cooperatives under the act of 27 April 2006 on social co-operatives (SC act)6. Those special co-operatives, by their legal nature, are addressed to poor, disable, socially underprivileged, or unemployed people (see art. 4 of the SC act). What is important in context of a public housing, social cooperatives may undertake home building activities. Nevertheless, it is not their main statutory task because social co-operatives may be involved in any activitythat is socially relevant. The act on social co-operatives says that territorial self-government units may be founders of co-operatives (see art. 5a secs. 1-5 of the SC act). So, mentioned co-operatives may constitute another form of co-operation between public and private parties.
As it comes out from the above, a commune may realize its tasks either independently by its own, or by charging another party with an obligation to accomplish a task (art. 3 ust.1 TSGE act)7.This works in terms of all stages of public housing process, except for planning and programming (conceptual stage, what belongs to organs of a commune under the SRT act and CTSG act). This charging may be achieved by means of public-private partnership, as well, either under the act of 19 December 2008 on public-private
5 Por. A. Doliwa, op. cit., s. 260, 262.
6 Official Journal of 2006, No. 94, sec. 651 with further amendments.
7 It is questioned in terms of its usefulness by M. Szydlo, op. cit., pp. 185-186.
partnership (PPP act)1, or under the act of 9 January 2009 r. on concessions on building works or services (CBWS) . In particular, there may be used some different modes of public-private partnership, like for instance: BOR (Build-Operate-Renew), DBFO (Design-Build-Finance-Operate). BOT (Build-Operate-Transfer), BOO (Build-Own-Operate), or BTL (Build-Transfer-Lease)3.
4. Summary
The article approaches a problem of housing development under the existing law in Poland. It defines both the material scope of term of "housing", and the personal scope of all units obliged under law to provide the inhabitants (citizens, households) with a proper dwelling. Having analyzed appropriate laws, it is possible to state that in Polandhousing, properly defined, is an obligatory task of a commune. Moreover, it belongs to the so-called tasks of a "public utility" character. Anyway, it must be underlined there is no universal right to housing either under Polish Constitution or under any act of the Polish Parliament.
The above analysis of binding legal regulations in Poland shows that public housing, meaning building process, administration of housing supply (dwelling houses), repairs and reconditioning of houses, and renting of premises to the households which are in need of housing (generally low income households), excluding programming and planning processes, and setting rules of renting with rent prices (art. 21 secs. 1-5, art. 8 point 1 of the SRT act),may be accomplished either by a commune itself or by private parties. Private parties may realize public housing task either entirely, or at least partly.
Therefore, there are two extreme possibilities available. Firstly, a commune may accomplish tasks and obligations vested upon it by the SRT act and by the CTSG act, namely an obligation to provide for proper conditions to satisfy housing needs of a community and
1 Official Journal of 2006, No. 94, sec. 651 with further amendments. Por. M. Szydlo, ibidem, pp. 242 and following.
2 Official Journal of 2009, No. 19, sec. 101 with further amendments.
3 See: I. Bojarska, PPP - nowe przepisy nowe szanse dla zarzqdzajqcych, http://www.budownictwo.abc.com.
pl/czytai/-/artykul/ppp-nowe-przepisv-nowe-szanse-dla-zarzadzajacych (16.09.2014).
obligations: to provide for social premises and substitutional premises, to provide low-income households with dwelling premises, and an obligation to provide for substitutional premises,hostel (lodging house) or another place where there is a lodging in case of eviction conducted by a bailiff (in course of an exaction), and general obligation to carry into effect building of houses, exclusively by itself, by using solely a commune's public housing supply. So there is no any participation of a private sector.
On the other side, secondly, there is a possibility that a commune passes all tasks and obligation at stake onto third private party or parties. Mentioned charging may take place under an appropriatecontract (due to the act on public-private partnership, or under the act on concessions on building works or services). A personal scope of contracting parties is not limited anyhow4.
If a commune decides to cooperate with a private sector in the housing development area, there are different kinds of public-private partnership available (due to given contractual provisions), and among them there are: BOR (Build-Operate-Renew), DBFO (Design-Build-Finance-Operate). BOT (Build-Operate-Transfer), BOO (Build-Own-Operate), or BTL (Build-Transfer-Lease).
There are many relevant issues dealing with public housing which have rested outsidepresent considerations. They fully deserve separate studies and critical analysis. Herewith, it is worth to point questions of an administration of specific housing supplies, like protected premises, hostels (lodging houses), houses for homeless people, including particular ways of financing those premises .
4 See for example art. 2 point 2 of the PPP act, where any undertaking may be a contracting party, including foreign undertakings. There is only one limitation provided by the law - there must be an undertaking, namely it cannot be a private person (not an entrepreneur).
5 See the act of 8 December 2006 on financial support for creation of social premises, protected dwellings, hostels (lodging houses), and houses for homeless people (FSCSP). Additionally, see the regulation of Minister of Labour and Social Policy of 26 October 2009 on financial support for creation of hostels (lodging houses), and houses for homeless people (Official Journal of 2009, No. 183, sec. 1432), and the regulation of Minister of Infrastructure of 29 July 2009
All mentioned questions constitute very crucial problems in terms of a modern social policy. There is also special attention required towards practical functioning of discussed legal regulations. It could be very interesting and vital to find how in fact a public housing is accomplished in Poland, especially to answer to a question about different forms of public housing and a range of participation of private parties (and their means) in it.
on financial support for creation of social premises, protected dwellings and premises belonging to a commune's housing supply which are not social premises (consolidated version: Official Journal of 2013, sec. 1277 with further amendments).
БИБЛИОГРАФИЧЕСКИЙ СПИСОК
1. I. Skrzydlo-Niznik, Model ustrojusamorzqdowego w Polscenatlezagadnienustrojowegoprawa-administracyjnego, Krakow 2007, p. 430.
2. P. Dobosz w: P. Chmielnicki, ed., Ustawa o samorzqdzie gminnym. Komentarz, Warszawa 2013, pp. 175-177.
3. Officiai Journal of 2000, 2013, 2014.
4. Афоничкин, А.И., Журова, Л.И. Процесс формирования стратегии развития интегрированных корпоративных систем // Современные проблемы науки и образования. - 2012. - № 4. [Электронный ресурс] режим доступа: www.science-education.ru/104-6830
5. Афоничкин, А.И., Журова, Л.И. Процесс формирования стратегии развития интегрированных корпоративных систем [Текст] / А.И. Афоничкин, Л.И. Журова // Современные проблемы науки и образования. - 2012. - № 4; URL: http://www. science-education.ru/104-6830 (дата обращения: 06.08.2013).
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