The latest Supreme Court ruling regarding shared costs is groundbreaking and revolutionary for tenants in shopping malls. The Supreme Court has found that disproportionate allocation of shared costs constitutes an act of unfair competition. Following this ruling, the Court of Appeal in Warsaw awarded a tenant a refund of overpaid shared costs because it acknowledged that this was where the act of unfair competition occurred. After both rulings, many landlords admitted to the prohibited practices and initiated discussions with tenants to settle overpaid shared costs. However, some landlords in the market continue these practices and argue that the Supreme Court ruling does not apply to them. They argue that court rulings in Poland do not create law, therefore the ruling is binding only on the parties involved in the case. Many tenants are now analyzing their contracts and checking how their landlords accounted for shared costs.
“The determination of the landlords shows how deeply rooted these practices are in Poland and how strongly the owners of shopping malls do not want to allow changes to the practiced customs,” advocate dr Tomasz Henclewski, a Partner at Henclewski & Wyjątek Law Firm told eNewsroom.pl. “Many tenants are now preparing for discussions with landlords, and even to file lawsuits for the return of overpaid shared costs. The future will show how the landlords will behave in the face of this ruling – however, one should believe that the courts will respect the jurisprudence of the Supreme Court. Many landlords confess to incorrect settlements and refund tenants for overpaid costs. However, some of them firmly stand their ground and do not want to admit to unfair practices. It seems that we are facing a wave of further lawsuits by tenants against landlords who will contest their overpaid amounts. It must be remembered that some of these cases will go to Arbitration Courts – about which we will never hear, because the arbitration procedure is confidential and no one will be allowed to speak about it publicly. However, the Arbitration Court will certainly take into account the jurisprudence of the Supreme Court as well as the act on counteracting unfair competition. In the case of these claims, we are dealing with amounts that can range from several to several hundred thousand zlotys per tenant. Considering the number of rental contracts in Poland and the number of shopping malls, we can think of very large, even multimillion amounts of claims. There are also issues of interest, which are charged from the day of improperly collected amount,” adds Dr. Henclewski.
