NEWSLETTER 10/2009
OPPORTUNITY FOR QUESTIONING THE EXPROPRIATION MADE ON THE BASIS OF THE DECREE OF MARCH 8, 1946 ON ABANDONED AND POST-GERMAN PROPERTY
The decree of March 8, 1946 on abandoned and post-German property (“decree”) states in art. 2 section 1b that the ownership of the property of citizens of the German Reich and the former Free City of Gdańsk passes onto the State Treasury, except for property of Polish nationals or other nationals persecuted by the Germans.
The aforementioned provision excludes persons of nationalities persecuted by the Germans from the decree. Such persons certainly included citizens of pre-war German Reich of Jewish nationality. Such persons were, however, most frequently deprived of their property, often comprising real estates, still before the end of World War II on the basis of so-called Nurnberg Laws. The laws forced then – under penalty – to sell their property to other Aryan persons (in fact to the Germans). Under sale agreements concluded on the basis of such laws, buyers were entered in land and mortgage registers.
On the territory of former German Reich, awarded to Poland after the end of World War II, by way of the aforementioned decree, ownership of the property of the citizens of the German Reich passed ex lege to the Polish State Treasury. The Polish State Treasury also acquired, therefore, property of German citizens who, under Nurnberg Laws, purchased the property from Jewish citizens.
Due to the legal situation, there is a problem whether former Jewish owners, deprived of the ownership of the property under Nurnberg Laws (through their sale) before the establishment of the Polish jurisdiction on the lands accessed to Poland after World War II, may claim the return of such property on the basis of such art. 2 section 1b of the decree.
The Polish State Treasury acquired the ownership of the property by law, therefore it is not possible to waive administrative decisions or other legal acts, as they were not necessary for acquisition of the property by the State Treasury. It is, however, possible to forward claims that the contents of the land and mortgage registers be aligned with the actual legal status. However, also this solution raises doubts. If, under the decree, German citizens lost the ownership rights, then in order to apply the exclusion from the decree, first one should declare invalidity of the sale agreements of the real estates made under Nurnberg Laws on the basis of a claim that originally the ownership rights served people of a nationality persecuted by Germans. Such a procedure would require that Polish courts decide on the validity of legal actions regarding real estates located on the former territories of the German Reich before their accession to Poland after World War II. It is hard to predict what position the judicature would take. Perhaps the statutory – although incomplete – compensations already paid by the Federal Republic of Germany rightly satisfy all the actual claims of the harmed persons?
Such cases – as far as I know – are awaiting the case.
Andrzej Kulczycki
attorney-at-law
The full text of the article in Polish and German has been published in the legal and tax section devoted to the international trade to the international trade at the website of the Polish-German Chamber of Industry and Commerce:
http://www1.ihk.pl.impartner.pl/img_upload/files/03.2009.Newsletter.DE.html
http://www1.ihk.pl.impartner.pl/img_upload/files/03.2009.Newsletter.PL.html
The Newsletter is published free-of-charge and is designed chiefly for clients of the law firm of Mikulski & Partners. The articles are written by lawyers at the firm, but do not constitute legal advice.