BMSP QUARTERLY

On 20 February 2011 the amended Act on Mortgage and Land and Mortgage Register came into effect. As a consequence, the hitherto division of mortgages into ‘ordinary’ and ‘cap’ no longer exists, which means that in order to secure a loan, a debtor may establish one mortgage on both the principal amount and the interest. As a result, the debtor does not need to file two motions to the court for making two entries in the Land and Mortgage Register; nor does he need to pay a registration fee twice.
The new regulations provide for a possibility to secure more than one claim of one and the same creditor with only one mortgage, provided that, however, a mortgage loan agreement specifies a civil obligation (vinculum iuris, such as e.g. a contract) from which the liabilities concerned arise.
According to the amended provisions in force, it is possible that one mortgage secures several claims of different creditors who participate in the funding of one and the same undertaking. To this end, however, the creditors concerned must, by way of agreement, appoint a mortgage administrator. Either one of the creditors or a third person may be appointed mortgage administrator. It practically means that a debtor who wants another loan because the one he has already taken is insufficient for him, may apply for an additional loan in the same bank in which he was provided with the first one while securing it with the same mortgage. In this way the debtor shall not wait for establishing a new mortgage and he shall not bear additional cost of loan protection insurance.
If one of several mortgages established on one real property has expired, the amended provisions in force enable the owner of the real property to have some influence over the priority of outstanding mortgages. Hitherto, if a mortgage revealed in the Register as the first in priority was paid off, the priority would ‘pass on’ to the second mortgage registered in a row. According to the amended legislation, having paid off one debt secured with a mortgage, the debtor may decide which of the outstanding mortgages should have priority instead of the expired mortgage or he may establish a new mortgage in the place of the expired one. The ‘vacant’ position of the expired mortgage in the Register may be managed by the debtor up to the amount of the paid off claim.
The amended legislation provides for transitional (or inter-temporal) provisions, namely, mortgages established by 20 February 2001 pursuant to the hitherto provisions of law shall remain valid. Thus, ordinary mortgage shall be governed by the ‘old’ unamended provisions, while cap mortgage shall be governed by the newly amended ones. In fact, as of the date of enacting the amended legislation, mortgages shall be governed by three legislative regimes, i.e. ordinary mortgages (and the related cap mortgages securing side benefits) to which unamended legislation shall apply; independent cap mortgages to which the newly amended legislation shall apply, except for the provisions concerning a ‘vacancy’ in the Register resulting from a paid off mortgage; and new mortgages to which the newly amended legislation shall apply to the fullest extent. In each particular case, it is advised to check which legislative regime should be applicable due to many details of inter-temporal provisions.

On 7 March 2011 the amended Personal Data Protection Act came into force. Although the amendments are primarily of an orderly character, they do introduce some new solutions, and they also revoke those provisions which constitute excessive regulations with respect to the EU framework directive.
The amended legislation is important in that it clears all the doubts as to conducting enforcement proceedings by the Inspector General for Personal Data Protection (GIODO). The hitherto legislation did not provide for a possibility for GIODO to participate in such proceedings in any character, and obligations imposed by GIODO were not subject to enforcement. The amended Act on Enforcement Proceedings in Administration assigns GIODO to a function of an enforcement authority. Within its new powers GIODO may order a compelling fine, the amount of which shall not exceed PLN 50,000.00 (and in the case of multiple enforcement – PLN 200,000.00), as well as apply such measures as substitute performance or the use of force.
The amended provisions make it possible to revoke one’s consent to collect and process personal data in any form, e.g. by a fax or a letter. As of the moment the information about revocation of consent has been fed into the data filing system, the processing of data pertaining to the person concerned is forbidden.
The amended legislation introduces facilitations for persons whose personal data are processed, which, however, makes life more difficult to the data controllers. A person applying for access to data may lodge an application in any form (personally, by phone, e-mail, etc.); the applicant does not need to ‘prove the need to obtain the data in a reliable way’; there shall be no obligation to make a detail description of the data applied for. A data controller shall, however, be obliged to investigate and ensure that granting access to data is necessary for reasons well-grounded by legislation.
Due to material importance of issues concerning access to personal data (especially in view of criminal liability for unauthorized access to data) certain initiatives are being developed (so called good practice or self-regulation) in the scope of granting access to personal data.
Moreover, the amended legislation introduces criminal liability for preventing or hindering the performance of GIODO’s inspections.