Glosa do uchwały SN z 5 II 2010 r., III CZP 127/09

Abstract

This critical gloss on the Supreme Court judgment considers an eff ectiveness of a power of attorney issued by, so called, large housing community (dużą wspolnotę mieszkaniową) to its board. In the given judgment the Supreme Court ruled that on the basis of art. 21.3. of the Ownership of Premises Act (ustawa o własności lokali z 24.06.1994r. Dz.U. z 2000 r. Nr 80, poz. 903, ze zm.) housing community cannot issue a power of attorney to its board for establishment of an easement of passage. Author disagrees with that and proposes functional interpretation of articles 21.3. and 22.2 of the Act. It is claimed that among actions exceeding ordinary management distinction should be made between those that just administer the co-owned estate and those which aff ects property rights of members of the community (like in case of establishment of an easement of passage). In the second group, a power of attorney granted on the basis of art. 22.2. to the members of the board enables them to make statements that aff ect rights of all members of the housing community, regardless of the fact that this eff ect is explicitly mentioned in art. 21.3. only for three kinds of actions. The reasoning is fi rstly, that granting power of attorney in this kind of action is obligatory on the basis of art. 22.2 of the Act and secondly, that voting procedure does not demand unanimity but only a majority consent. Therefore, an obligatory power of attorney granted on the basis of art. 22.2. of the Act aff ects property rights of all members of the housing community, despite of the fact that not all of them might have agreed on that. Other interpretation would made given power of attorney in other cases than those literary expressed in art. 21.3. of no practical meaning, like for example, in case of establishment of an easement of passage, which was the factual background in the commented case.