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Supreme Court ruled on the right to enter into a lease of a late gay partner

The Supreme Court adopted a resolution to interpret article 691 of the Polish Civil Code. According to the SC, also a person of the same sex as a deceased lessee can be considered to have been in “actual cohabitation” with the lessee, provided that there was emotional, physical and economic bond between the two.

The issue of interpretation of article 691 of the Civil Code appeared in the case of XY, who had been refused to enter a lease after his late gay partner. Under article 691(1), if a lessee of residential premises dies, the right to enter into the lease can be exercised, among others, by “a person who was in actual cohabitation with the deceased lessee”, provided that such a person was habitually living on the leased premises together with the original lessee until the latter’s death. Despite having been in the same-sex relationship with a tenant of a Warsaw council flat for nearly nine years, XY was not allowed to enter into a lease by the local housing authority. He brought the case to the District Court for Warsaw’s district Mokotów but the court dismissed his claims. The HFHR and XY’s counsel appealed against the decision to the Circuit Court in Warsaw who then asked the Supreme Court to interpret the law.

The crucial question in the case was whether or not the article 691 reference to “a person who was in actual cohabitation” also includes homosexual partners. On appeal, the HFHR argued that the expression should be applied equally to gay couples. The Foundation cited the ECtHR’s decision in the case of Kozak v. Poland (application no. 13102/02), in which the Court asserted that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy violated the European Convention on Human Rights’ prohibition of discrimination (ECHR’s Article 14 read in conjunction with Article 8).

“The Foundation was involved in the case from the very beginning. We decided that under the current law, including the ECtHR case-law, there was no doubt that the legal status of homo- and heterosexual cohabitees must not be differentiated”, said Dr. Dorota Pudzianowska, Coordinator of the HFHR’s Article 32 Programme.

The case has been included in the Article 32 anti-discrimination programme. run by the Helsinki Foundation. Mr Filip Wejman represented the HFHR before the Supreme Court.

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