When the Land Registry Lies
In Poland, as in many civil-law countries, property ownership exists in two parallel universes: the one recorded in official land registries—known as księgi wieczyste, or “eternal books”—and the one that actually exists in the world. When these two realities diverge, the law presumes that the registry is correct. But this presumption, like many legal fictions, can be challenged.
Article 3 of Poland’s Land Registry and Mortgage Act establishes what lawyers call a rebuttable presumption: whatever appears in the land registry is assumed to reflect reality. The word “rebuttable” does most of the work here—it means the presumption can be overcome with contrary evidence. Yet navigating the various legal mechanisms available for doing so requires the kind of strategic judgment that comes from experience. An ill-chosen procedural path can mean the difference between correcting the public record and merely winning a private dispute.
The Architecture of Truth
The most effective way to permanently overturn the presumption enshrined in Article 3 is through a lawsuit under Article 10, Section 1 of the Land Registry Act—an action to reconcile the registry’s contents with the actual legal state of affairs. One can also challenge these presumptions within other proceedings where the property’s true legal status matters to the claims or defenses being advanced. But the effects of overturning the presumption in such cases remain confined to that particular proceeding and its parties; the registry itself goes unchanged. (As the Regional Court in Kraków noted in an October, 2017, ruling, a victory in a collateral proceeding leaves the underlying record untouched.)
The distinction matters. A judgment granting relief under Article 10 becomes the basis for correcting the legal status disclosed in the land registry. The lawsuit itself has a complex character—it functions primarily as an action to establish rights—but it allows the rightful party to have the established right reflected in the registry. This provides legal protection not just against the opposing party in the lawsuit but against all participants in commerce who might rely on the registry’s contents and the presumption of Article 3. (Again, the Kraków court’s reasoning from 2017.)
An Article 10 lawsuit protects the interests of someone who has been incorrectly recorded in the land registry, or omitted from it entirely. It encompasses all possible factual situations that create a discrepancy between the registry and reality. One might bring such an action, for instance, when contracts transferring property ownership—contracts that formed the basis for registry entries—turn out to be void. (The Supreme Court confirmed this in a May, 2023, decision.)
Still, the presumption in Article 3 can be overcome through means other than Article 10. It may be rebutted in any civil proceeding before a common court where verification of the issue is necessary for the substantive resolution of the case.
For example, a declaratory judgment issued under Article 189 of the Code of Civil Procedure can serve as the basis for a registry entry that removes a discrepancy. This means that inconsistencies between the registry and reality can be corrected through a court ruling under Article 189 without resorting to the Article 10 procedure. (The Supreme Court acknowledged this in September, 2022.)
The question of bringing a lawsuit to reconcile the registry with reality is intimately connected to the function that land registries serve: disclosing the legal status of real property to ensure security of transactions. A lawsuit based on Article 189, by contrast, aims to provide legal protection in litigation by establishing the existence or nonexistence of a right or legal relationship for someone with a legal interest in obtaining such a determination. Courts have therefore held that the mere availability of an Article 10 action doesn’t eliminate the legal interest required to bring a declaratory action. (The Supreme Court said as much in November, 2021.)
Yet the Article 10 lawsuit remains the only way to permanently and effectively overturn the presumption established in Article 3. While it’s possible to challenge the presumption in other proceedings—where the property’s true legal status matters to the claims or defenses—the consequences of doing so are limited to that proceeding and its parties. Such challenges don’t affect the entries in the registry itself. Only a judgment granting relief under Article 10 enables correction of the legal status disclosed in the land registry. (The Supreme Court reiterated this in April, 2021.)
The Limits of Registry Proceedings
Land-registry proceedings, by their nature, cannot resolve disputes. The scope of a registry court’s review is defined in Article 626.8, Section 2, of the Code of Civil Procedure: it’s limited to examining the content of the application for entry, its form, the attached documents, and the registry’s contents.
While a registry court’s review isn’t purely formal—it extends to examining the substantive effectiveness of the legal transaction forming the basis for the entry—the court can consider the application only within these parameters and cannot take other circumstances into account. The court assesses whether the transaction justifying the entry meets legal requirements, but this examination occurs only within the boundaries prescribed by statute. (The Supreme Court clarified this in January, 2021.)
Who Must Participate
Those entitled to bring an Article 10 lawsuit are identical to those authorized to file an application for a registry entry reflecting the updated legal status that is the subject of the action.
In a case to reconcile the registry with reality, all persons entered in Section II of the land registry should participate, along with those who, for various reasons, should be entered but aren’t. (The Kraków Regional Court confirmed this in its October, 2017, ruling.)
Whether all parties with active standing must join together isn’t uniformly resolved in case law. The prevailing view holds that those entitled to bring the lawsuit must be necessary co-plaintiffs, while parties whose rights would be affected by granting the lawsuit must be necessary co-defendants. The reasoning: a judgment in a case to reconcile the registry with reality must encompass the full legal status of the property within the scope of the lawsuit, as determined on the date the hearing closes. Therefore, persons whose rights are affected by the pending proceeding must participate. A judgment granting the lawsuit forms the basis for correcting entries in the land registry and must be effective and binding on all persons whose rights it concerns. At the same time, the court cannot grant the lawsuit if it finds that the entries or deletions the plaintiff expects won’t cause the registry to reflect the property’s current legal status as of the date the hearing closes. (The Supreme Court held this in November, 2020.)
In a case involving reconciliation of the registry with reality, all persons entitled to file an application for entry must appear as parties. When they don’t, the court must summon them to participate as defendants under Article 195 of the Code of Civil Procedure. If this provision is violated, the appellate court must take notice on its own motion. Because subjective transformation is prohibited in appellate proceedings (under Article 391, Section 1, sentence 2), the appellate court cannot cure this defect. The proper remedy is to vacate the judgment and remand for reconsideration. (The Supreme Court ruled accordingly in December, 2022.)
April 3, 2024
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
