Nieruchomości@ (Dec 2022)
The problem of legal classification of a balcony in the jurisprudence of administrative and common courts of law: A comparative legal analysis (Part II)
Abstract
This article is the second part of a continued study on the legal qualification of balconies (loggias) in the jurisprudence of administrative courts and common courts of law and at the same time an attempt to construct the concepts of a balcony, terrace, and loggia (recessed balcony) from a normative point of view. In part I, we have outlined the condition of research on the issue which is the subject of the study, our assumptions and research hypotheses, terminological and definitional issues in reference to their dictionary meanings, the jurisprudence of the Supreme Court and lower courts of law and the jurisprudence of administrative courts in determining the terminological meanings of the concepts of balcony (loggia) and terrace. Furthermore, a normative analysis of the legal provisions contained in the Act of 24 June 1994 on the Ownership of Apartments (consolidated text promulgated on 21 May 2021 in the official journal “Dz.U.” of 2021, item 1048), the Act of 23 April 1964 - the Civil Code (consolidated text promulgated on 9 June 2022 in the official journal “Dz.U.” of 2022, item 1360, as amended), the Act of 6 July 1982 on Land and Mortgage Registers and Mortgages (consolidated text promulgated on 22 July 2022 in the official journal “Dz.U.” of 2022, item 1728) as well as the legal scholars’ writings and jurisprudence. One of the basic research objectives in this study was also to present the institution of a common property in the context of a potential qualification of balconies, loggias, terraces alternatively as one of the components of a common property or through their classification as a part of the structure of a an apartment. In this paper, the authors have attempted to analyse the definition of common property laid down in Article 3(2) of the Act on the Ownership of Apartments in a de lege lata framework, presenting the most important features of the currently applicable normative concept. It gave rise to de lege ferenda conclusions proposed in the conclusions to this article, in particular as regards the scope of terminology used by the lawmaker. The considerations of a theoretical and legal nature have been extended by an analysis of the views present in particular in the current jurisprudence of common courts of law and administrative courts, as well as references to normative solutions adopted of some foreign legal systems.
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