Refugees from Ukraine under temporary protection are accommodated in Poland on different terms. Some reside in collective accommodation centres, some are hosted in flats of private persons and some conclude paid rental contracts. The situation of these persons, their rights and legal protection against possible eviction vary depending on the type of contract concluded and the type of accommodation – in the following article we will present the most common cases.
Legal titles to residence
Refugees from Ukraine reside in Poland under the following conditions:
- lease agreement – concluded between the lessor (landlord) and the lessee (tenant). The contract is a paid one, as the tenant is obliged to pay rent and other costs for the upkeep of the premises, such as electricity or water, in return for providing the premises. The lease is concluded for a fixed or indefinite period.
- lending for use agreement – a legal form of living in a collective accommodation facility without the obligation to pay rent. The lender agrees that the person taking the property will use the accommodation in question free of charge for a definite or indefinite period of time.
- hospitable provision of premises for use (precarium) – the most common form of agreement between refugees and those providing the premises or room. In the case of precarium, Ukrainian persons may not be covered by the tenants’ rights legislation.
However, a large number of refugees do not choose to rent accommodation themselves due to the significant burden of rent costs. They then opt to live in group accommodation centres. Such centres are organised by the provincial governor on the basis of the March 2022 law on assistance to Ukrainian citizens. Group accommodation is also organised in large numbers by foundations and associations. The accommodation is at no cost and is usually provided under the so-called 40+ programme. This is a programme that reimburses the costs of providing accommodation and food for people arriving from Ukraine due to the war. Residence in group accommodation centres tends to be provided without a contract as part of humanitarian assistance. As a rule, refugees do not enter into contracts in this case.
Let us describe each form of occupancy and indicate what protection against eviction is afforded to each basis of residence.
Lease agreement
By signing a lease agreement, the landlord undertakes to put the subject of the lease at the disposal of the tenant for a specified period in return for rent paid by the tenant. A lease agreement for a term longer than one year should be concluded in writing. If the written form is not observed for a contract concluded for a period longer than one year, the contract shall be deemed to have been concluded for an indefinite period.
The tenant is first and foremost protected by the Law on the Protection of Tenants’ Rights in the context of eviction from premises. In accordance with the Tenants’ Rights Protection Acts, a tenant is a lessee of premises or a person using premises on the basis of a legal title other than ownership. This means that a person using premises on the basis of a lease agreement is protected by the Act, and this in turn means that the provision on the prohibition of eviction during the winter period applies to such a person. The relevant provision reads: court judgments ordering the vacating of premises shall not be enforced in the period from 1 November to 31 March of the following year inclusive, if the evicted person has not been indicated the premises to which relocation is to take place.
Lending for use agreement
A lending for use agreement, unlike a lease agreement, does not involve costs. The lender is only obliged to maintain the premises in good condition.
According to Polish law, tenants who use the premises on the basis of a lending for use agreement are subject to the provisions of the Civil Code and, above all, the provisions on the protection of tenants’ rights. A person using premises on the basis of a lending for use agreement is also protected by the law, which means that the provision on the prohibition of eviction during the winter period applies to them.
However, it should be noted that the March 2022 Ukrainian special act has excluded the provisions on the protection of tenants’ rights to Ukrainian refugees who use the flat on a lending for use basis. This means that such persons are not covered by the winter eviction protection indicated above.
Article 68 of the Law on Assistance to Citizens of Ukraine in Connection with the Armed Conflict on the Territory of Ukraine states that in the case of a lending for use agreement, the provisions of the Law on the Protection of Tenants’ Rights, Housing Resources of the Municipality shall not apply. This means that the bailiff may remove such a tenant to a night shelter, hostel or other facility providing accommodation, indicated at the bailiff’s request by the municipality with jurisdiction over the location of the premises to be vacated. This also applies to the provisions on the prohibition of eviction during the winter period.
However, the exemption does not imply arbitrary eviction and does not allow landlords to throw tenants ‘out on the street’. According to Article 1046 of the Code of Civil Procedure, if the evicted person is not entitled to social housing, the bailiff, as a rule, when performing the obligation to vacate the premises, will remove the evicted person to another premises or room to which the tenant has a legal title and in which he or she can live. If the evicted person does not have a legal title to another premises or room in which he or she may reside, the bailiff shall withhold his or her actions until the municipality with jurisdiction over the location of the premises to be vacated has, at the bailiff’s request, indicated a temporary room to the occupant.
This means that, although tenant protection does not apply to those using a lending for use agreement, there is no fear of being made completely homeless.
Tenants without a contract – precarium
As it was pointed out – precarium is a case where, in a social relationship, one person wants to do a favour to another, out of courtesy or humanitarian considerations. Precarium differs from lending for use in that it is a purely factual relationship and not a legal relationship. The basis for the distinction between the two legal relationships is primarily the intention of the parties, and above all of the person making the lending. If the basis for making the premises available is hospitality and the provision of humanitarian aid, then we are dealing with the institution of precarium. Precarium should also be of a short-term and temporary nature. In the case of a precarium, the owner may take the thing back at any time and the person from whom the thing is taken back has no legal protection. Eviction of persons enjoying the hospitality of the owner is simpler, as the provisions on the protection of tenants’ rights do not apply. A businessman or private person can take back their property at any time, and the person who has used the property is not entitled to legal protection.
