De Lege Ferenda Problems of Rights to Premises in Housing Cooperatives in Poland and Comparative Legal Perspective

As a rule, the countries of „old Europe” have general regulations on cooperatives, which usually do not include specific regulations on housing cooperatives. In the aforementioned countries, members may most often be entitled to tenancy of premises, although this is not always explicitly stated. In some countries, members are also explicitly allowed to own premises. In post-communist countries, members of cooperatives are usually entitled to ownership of premises, less often to lease of premises with the possibility of conversion to ownership. In the case of Poland, de lege ferenda urgently require a solution to the problem of those housing cooperatives that have erected buildings on land to which they have no legal title. It is necessary to return to the concept from more than 30 years ago of ex lege transformation of the cooperative ownership right to premises as a limited right in rem into the right of separate ownership of premises. The cooperative tenant right to housing should become a limited right in rem, with the possibility of its transformation into the right of separate ownership of premises. In Poland, in addition to housing cooperatives, there are housing communities (condominiums), which bring together owners of premises, but they are not legal entities, and their legal structure raises serious doubts. This raises the question of whether it makes sense to maintain the dualism of the legal regulation of separate ownership of premises in the Law on Ownership of Premises and on Housing Cooperatives. In Poland, in addition to the Law on Housing Cooperatives (ustawa o spółdzielniach mieszkaniowych), there is the Law of 2022 on Housing Cooperatives (ustawa o kooperatywach mieszkaniowych), which allows at least three persons to carry out a housing project involving the acquisition of undeveloped or developed land for the purpose of establishing separate ownership of premises or transferring ownership of single-family houses. However, serious doubts are raised by the adoption of the unfortunate name „housing cooperative” (kooperatywa mieszkaniowa) in the law, which irresistibly implies „housing cooperative” (spółdzielnia mieszkaniowa).